Grebenstein v. Stone & Webster Engineering Co.

• Decision Date: 19 May 1911
• Citation: 209 Mass. 196,95 N.E. 503
• Parties: GREBENSTEIN v. STONE & WEBSTER ENGINEERING CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

209 Mass. 196

95 N.E. 503

GREBENSTEIN v. STONE & WEBSTER ENGINEERING CO.

Supreme Judicial Court of Massachusetts, Middlesex.

May 19, 1911

COUNSEL

D. H. Coakley and H. D. Moore, for plaintiff.

Peabody Arnold, Batchelder & Luther, for defendant.

OPINION

MORTON J.

This case was before this court in 205 Mass. 431, 91 N.E. 411 where the defendant's exceptions were sustained, and it was left to the superior court to decide whether the plaintiff should be allowed to amend his declaration by substituting, for the count at common law on which the case was tried, counts under R. L. c. 106, § 71, the act which was in force at the time of the injury complained of. The superior court allowed the plaintiff to amend by substituting for the count at common law a count under R. L. c. 106, for negligent super-intendence, and the case came on for trial on the declaration as thus amended. The presiding justice ruled subject to the defendant's objection and exception, that there was evidence of negligent superintendence, and by agreement of the parties submitted certain questions to the jury which they answered in favor of the plaintiff and assessed damages in the sum of $4,000. The presiding justice was, however, of opinion that the notice was insufficient and directed a verdict for the defendant and reported the case to this court. If the ruling in regard to the notice was wrong and the facts reported would justify a submission of the case to the jury, then judgment is to be entered for the plaintiff for $4,000. Otherwise judgment is to be entered on the verdict for the defendant.

We think that the ruling was right. The notice required by the statute is a condition precedent to a right of action. Any right of action which the plaintiff otherwise would have had is lost if he fails to give a sufficient notice. The notice required must be in writing, signed by the person injured or some one in his behalf, and must be given to the employer within 60 days, and must contain a statement of the time, place and cause of the injury.

The notice relied on in this case, omitting the letter head, is as follows:

'November 5, 1907.

'Stone & Webster Engineering Corporation, No. 147 Milk Street, Boston, Mass.--Gentlemen: William F. Grebenstein, who was in your employ and was very greatly injured and will probably permanently lose his eyesight, while at work on electrical appliances of the Boston Elevated Railway at Sullivan Square, and is now in the Boston City Hospital, has placed his case in my hands for adjustment.

'There seems to be no doubt about the liability and certainly the injury is very great. If you wish to confer with me regarding a settlement I would be glad to see or hear from you at once.

'Yours very truly,

'[Signed] Howard D. Moore.'

The notices required by the statute are not, as was said in Driscoll v. Fall River, 163 Mass. 105, 39 N.E. 1003 of notices under the highway statutes, 'to be construed with technical strictness, but enough should appear in them to show that they are intended as the basis of a claim against the city or town.' In Kenady v. Lawrence, 128 Mass. 318, it was said that 'the...