Daly v. New Jersey Steel & Iron Co.

• Decision Date: 04 December 1891
• Citation: 155 Mass. 1,29 N.E. 507
• Parties: DALY v. NEW JERSEY STEEL & IRON CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

155 Mass. 1

29 N.E. 507

DALY v. NEW JERSEY STEEL & IRON CO.

Supreme Judicial Court of Massachusetts, Hampden.

December 4, 1891

St.1887, c. 270, § 3, as amended by St.1888, c 155, provides: "And no action for the recovery of compensation for injury or death under this act shall be maintained unless notice of the time, place, and cause of the injury is given to the employer within 30 days, and the action is commenced within one year from the occurrence of the accident causing the injury or death. The notice required by this section shall be in writing, signed by the person injured or by some one in his behalf; but if, from physical or mental incapacity, it is impossible for the person injured to give the notice within the time provided in said section he may give the same within ten days after such incapacity is removed; and in case of his death without having given the notice, and without having been for ten days at any time after his injury of sufficient capacity to give the notice his executor or administrator may give such notice within 30 days after his appointment."

COUNSEL

William H. Brooks, for appellant.

Robinson & Robinson, for respondent.

OPINION

ALLEN J.

The first objection raised by the defendant is that the notice of the time, place, and cause of the injury given by the administrator of the estate of the injured person will not support an action in favor of his next of kin. This objection rests on the intimation given in the recent case of Gustafsen v. Manufacturing Co., 153 Mass. ----, 27 N.E. 179, that in a case of instantaneous death a notice by an executor or administrator would not be sufficient. In that case, as in this, the death was instantaneous, and there the action was brought by the widow of the deceased, and the notice was given by her within 30 days after the accident. In holding that the notice by her was sufficient under the first clause of St.1888, c. 155, § 1, we intimated that the rest of that statute was not intended to apply to such a case. The language of the statute is undoubtedly quite obscure in this provision respecting notice, as well as in others, and it is not strange that a doubt has arisen as to its meaning. It was taken from Pub.St. c. 52, § 21, relating to injuries to person or property from defective highways. The notice provided for in that section has no application, so far as injury to the person is concerned, if such injury results in instantaneous death. The general rule in case of instantaneous death is that no action lies. By a separate section (Pub.St. c. 52, § 17,) a remedy is given if the life of a person is lost by reason of a defect or want of repair of a highway, and this includes cases of instantaneous death and no notice of the time, place, and cause of the injury is required. But where an injury is received which does not result in immediate death a right of action vests in the person injured under section 18, and, in case of his subsequent death, this survives to his executor or administrator, and the provision of section 21 as to notice applies to such cases. By the employers' liability act, (St.1887, c. 270,) a right of action is given in section 1 to an employe who is injured without being instantly killed, and in section 2 a right of action is given to the widow and next of kin where the employe is instantly killed. Then, in section 3, which is amended by St.1888, c. 155, provision is made for notice, which is common to both cases. Language which was originally applicable only to a right of action which vested in the person injured in his life time, and which survived to his executors or administrators, is applied in one common provision, not only to such cases, but also to cases where the right of action is given solely to the widow and next of kin. ...