Driscoll v. City of Fall River

• Decision Date: 28 February 1895
• Citation: 163 Mass. 105,39 N.E. 1003
• Parties: DRISCOLL v. CITY OF FALL RIVER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

163 Mass. 105

39 N.E. 1003

DRISCOLL v. CITY OF FALL RIVER.

Supreme Judicial Court of Massachusetts, Bristol.

February 28, 1895

COUNSEL

Edgar J. Rich, for plaintiff.

George Grime, for defendant.

OPINION

MORTON, J.

It is evident that the question which was objected to called for an answer as to the reputation of the foreman among the gang with which the witness had been working from three or four days to a week, and whose number did not appear, nor how long they had worked under the foreman. A general reputation regarding the incompetency of a servant is admissible on the ground that it furnishes some reason to believe that, if the master had exercised due care, he might have learned or heard of the incompetency. But the reputation of a foreman among a few workmen employed under him is not a general reputation. It is merely the opinion of a small number of men of which there is no sufficient reason to suppose the master may be cognizant, or which he may be bound to heed. Monahan v. City of Worcester, 150 Mass. 439, 23 N.E. 228; Gilman v. Railroad Co., 13 Allen, 433, 444; Whitcher v. Shattuck, 3 Allen, 319, 321. We assume that the two papers, which are relied on as being the notice, were given to the defendant, though the bill of exceptions does not state what they were, nor where, nor to what person. But we do not think that they constitute a sufficient notice. The first paper is headed, "John Driscoll," and appears to be a record of the events immediately preceding and connected with the accident to him. The second paper is a description over the signature of a physician of the injuries sustained by John Driscoll as the result of the accident. We may conjecture that the two papers were intended to be a notice to the defendant of the time, place, and cause of the injury in accordance with the statute. But they neither purport to be given on behalf of the plaintiff, nor to intimate that he had any claim against the city. The notices required by the statute are not to be construed with technical statutes, but enough should appear in them to show that they are intended as the basis of a claim against the city or town, and are given on behalf of the person who brings the suit. Kenady v. City of Lawrence, 128 Mass. 318; St.1887, c. 270, § 3, and amendments. We think that the notice in this case is defective in both particulars. Exceptions overruled.