Haverty v. Ernst

• Decision Date: 05 April 1919
• Citation: 122 N.E. 727,232 Mass. 543
• Parties: HAVERTY v. ERNST.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

232 Mass. 543

122 N.E. 727

HAVERTY

v.ERNST.

Supreme Judicial Court of Massachusetts, Suffolk.

April 5, 1919.

Report from Superior Court, Suffolk County; Robert F. Raymond, Judge.

Action of tort by Patrick Haverty against Roger Ernst, trustee, resulting in verdict for plaintiff. On report the Supreme Judicial Court. Judgment ordered for plaintiff.

Samuel L. Bailen and Frank Leveroni, both of Boston, for plaintiff.

Walter I. Badger and Walter I. Badger, Jr., both of Boston, for defendant.

CARROLL, J.

The plaintiff claimed that he was injured February 3, 1917, by falling upon snow and ice on the sidewalk in front of the premises numbered 174 Lamartine street, Boston, the legal title to which was in the defendant, as trustee under the will of the husband of Mrs. Nellie Vogel. Mrs. Vogel lived about a quarter of a mile from the premises. She was the sole beneficiary, during her life, under the trust. Since 1912 the defendant authorized Mrs. Vogel and her son to carry out ‘the detailed supervision of the property’; they also had authority to rent the premises and to collect the rents. There was sufficient evidence of the plaintiff's due care and of negligence on the part of the defendant to warrant the submission of the case to the jury. The only question of law raised by the report is the validity of the notice received by Mrs. Vogel March 3, 1917, and sent by her to the defendant, who received it March 5, 1917, which reads as follows:

‘Mrs. Vogel, 3 Lamartine Place, Jamaica Plain:

‘Dear Madam: In accordance with provisions of law in such cases, made and provided, you are hereby given notice that on the 3d day of February, 1917, at one o'clock in the afternoon of that day, I suffered severe and painful injuries by reason of my falling on the sidewalk adjoining in front of your premises situated in that part of Boston called Jamaica Plain and numbered 174 Lamartine St., Jamaica Plain. The cause of my fall was by accumulation of snow and ice upon said sidewalk.

‘Very truly yours, Patrick Haverty,

‘By His Attorneys, Bailen & Leveroni.’

The jury found for the plaintiff.

Under St. 1908, c. 305, due service of a proper notice on the persons sought to be charged is a condition precedent to recovery for injuries arising from a defective condition on the defendant's premises or on an adjoining way, caused by snow and ice. By St. 1913, c. 324, the time for giving the notice was extended to thirty days, and it was provided:

‘No notice shall be held to be invalid by reason of any inaccuracy or misstatement of the owner's name if it appears that the same was made in good faith and did not prevent or unreasonably delay the owner from receiving actual notice of the injury and of the claim that it occurred from a defective condition of his premises.’

The jury could have found on the evidence presented that ...