Finneran v. Graham

• Decision Date: 06 April 1908
• Citation: 198 Mass. 385,84 N.E. 473
• Parties: FINNERAN. v. GRAHAM.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

198 Mass. 385

84 N.E. 473

FINNERAN. v. GRAHAM.

Supreme Judicial Court of Massachusetts, Suffolk.

April 6, 1908

COUNSEL

E. C. Bumpus and C. W. Rowley, for plaintiff.

John Lowell and James A. Lowell, for defendant.

OPINION

SHELDON J.

It is now very properly conceded that there was evidence on which the jury might have found that the plaintiff's intestate died without having been for 10 days at any time after his injury of sufficient capacity to give the notice required by Rev. Laws, c. 106, § 75; and the only question is whether it could have been found that the notice was given to the defendant before the action was brought. If this could not have been found, the action could not be maintained. The giving of the notice is a condition precedent to the right of action, and must precede the writ. Healey v. Blake Mfg Co., 180 Mass. 270, 273, 62 N.E. 270; Veginan v Morse, 160 Mass. 143, 35 N.E. 451. This has been the rule laid down under other similar statutes. Mack v. N Y., N.H. & H. R. R., 172 Mass. 185, 186, 51 N.E. 1076; Madden bv. Springfield, 131 Mass. 443, 444; Mitchell v. Worcester, 129 Mass. 525, 526; Gay v. Cambridge, 12, Mass. 387; Hope v. Scranton & Lehigh Coal Co., 120 A.D. 595, 105 N.Y.S. 372; Chisholm v. Manhattan Ry., 116 A.D. 320, 101 N.Y.S. 622; Keen v. Millwall Dock Co., 8 Q. B. D. 482.

The writ was dated February 20, 1905, and that must be taken to have been the commencement of the action. Farrell v. German American Ins. Co., 175 Mass. 340, 346, 56 N.E. 572, and cases there cited. The most favorable testimony for the plaintiff was that the notice was given to the defendant at a quarter before six o'clock of the afternoon of the same day. Would the testimony have warranted a finding that the notice was given before the making out of the writ?

Undoubtedly the notice may be made and served on the same day that the writ is sued out. The only requirement as to this is that the service of the notice must precede the bringing of the action, because, as we have seen, it is a condition precedent to the right to maintain the action. And it follows necessarily that if both the service of the notice and the suing out of the writ occur on the same day, as in the case before us, the plaintiff may introduce evidence that the former was done at an earlier hour than the latter, and the defendant may offer evidence to the contrary. The case would be taken out of the ordinary rule that the law will not regard fractions of a day, by the fact that justice and a proper determination of the rights of the parties would require the order of the two events to be fixed. Hammond v. Thompson, 168 Mass. 531, 47 N.E. 137; Garity v. Gigie, 130 Mass. 184; Bigelow v. Willson, 1 Pick. 485, 495; Westbrook Mfg. Co. v. Grant, 60 Me. 88, 11 Am. Rep. 181; Matter of Richardson 2 Story (U. S.) 571, Fed. Cas. No. 11,777; Combe v. Pitt, 3 Burr, 1423, 1434. But the burden is upon the plaintiff to show that he is entitled to maintain his action, and that he has performed every condition precedent to the obtaining of that right. If there is no evidence which event preceded the other, it necessarily follows that he must fail.

Nor is the plaintiff helped by any presumption of regularity in the proceedings of public officers, or of the natural and usual order of business having been followed in business transactions. The statute gave him a right of action against his employer in certain enumerated cases, but imposed upon him the condition of first serving a notice upon the defendant. He must show that he has done this, and that he has done it before suing out his writ. Unless and until this has been shown, the defendant has a right to...