King v. City of Boston

• Decision Date: 26 May 1938
• Citation: 300 Mass. 377,15 N.E.2d 191
• Parties: ANNA M. KING v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

300 Mass. 377

15 N.E.2d 191

ANNA M. KING v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

May 26, 1938

March 7, 1938.

Present: RUGG, C.

J., FIELD, LUMMUS DOLAN, & COX, JJ.

Way, Public defect. Notice.

A failure by one injured by a defect in a public way to state his place of residence both in a notice purporting to be given under Section 18 of

G.L. (Ter. Ed.) c 84, as amended by Section 1 of St. 1933, c. 114, and in a second notice after receipt of a counternotice under Section 20 as amended by

Section 3 of said c. 114, was not a mere inaccuracy in the notice within Section 18, as amended, but rendered it fatally defective, and prevented the maintenance of an action for such injuries.

TORT. Writ in the Superior Court dated October 21, 1933. A verdict for the plaintiff in the sum of $3,000 was recorded with leave reserved before Brogna, J., who afterwards ordered a verdict for the defendant entered.

H. F. R.

Dolan, for the plaintiff.

J. A. Dorsey, Assistant Corporation Counsel, for the defendant.

RUGG, C.J. This is an action of tort to recover compensation for personal injuries received by the plaintiff on September 16, 1933, on a public way in Boston. While walking on a sidewalk in front of 126 Englewood Avenue, she tripped and fell because a part of the sidewalk was higher than the level of the adjacent part. Both the plaintiff and the defendant introduced evidence on the negligence of the defendant, the due care of the plaintiff, and the damages suffered by the plaintiff. There was sufficient evidence to warrant a finding that there was a defect in the sidewalk at the place of the alleged accident. The plaintiff introduced in evidence a notice dated September 30, 1933, with return of service indorsed thereon showing service upon the mayor and city clerk of the defendant on October 2, 1933. That notice stated that, on September 16, 1933, at about three thirty P.M., the plaintiff was injured by tripping and falling on the sidewalk in front of 126 Englewood Avenue "where a cement square forming a part of the sidewalk was substantially higher than the level of the adjacent part of the sidewalk." The residence of the plaintiff was not stated in this notice. Later in the trial the defendant put in evidence a notice dated September 25, 1933, whereby the plaintiff notified the mayor of the defendant of injuries received by her at precisely the same time and place set forth in the notice dated September 30, 1933, except that it was stated, "where the cement square forming a part of the sidewalk had caved in and was depressed below the rest of the sidewalk," and in other respects the notice of September 30, 1933, was similar to it. This notice did not state the residence of the plaintiff. The defendant also put in evidence a counternotice from the defendant to the plaintiff, stating that the notice of September 25, 1933, was not in conformity to law and was insufficient, and requesting forthwith a further written notice in compliance with the law. G.L. (Ter. Ed.) c. 84, Section 20, as amended by St. 1933, c. 114, Section 3. This notice was received by counsel for the plaintiff on September 28, 1933. During the trial it was stipulated by counsel that there was no intention on the part of the plaintiff to mislead the defendant by reason of any insufficiency or inaccuracy in stating the name or place of residence of the plaintiff, or the time, place or cause of the injury, in the plaintiff's notices to the defendant of said injury, and that the defendant was not in fact misled by any such insufficiency or inaccuracy. After the return of the verdict and before the recording thereof, the trial judge reserved leave, with the assent of the jury, to enter a verdict for the defendant if, upon the exceptions taken or the questions of law reserved, the Superior Court or the Supreme Judicial Court should decide that such verdict for the defendant should have been entered.

After the return of a verdict in favor of the plaintiff, the defendant filed a motion in writing for the entry of a verdict in its favor under leave reserved. Thereupon, the trial judge stated that the only question of law to be submitted to the Supreme Judicial Court is whether "the notice given by the plaintiff to the defendant stating the name, but omitting to state the place of residence of the person injured," was sufficient and in compliance with G.L. (Ter. Ed.) c. 84, as amended by St. 1933, c. 114. The counsel acquiesced in that statement. Thereupon, the motion was allowed and a verdict was ordered to be entered in favor of the defendant. G.L. (Ter. Ed.) c. 231, Section 120. The exceptions of the plaintiff bring the case here.

It is provided by G.L. (Ter. Ed.) c. 84, Section 18, as amended by St. 1933, c 114, Section 1, that a person injured by a defect or want of repair in a highway shall, "within thirty days thereafter, give to the county, city, town or person by law obliged to keep said way in repair, notice of the name and place of residence of the person injured, and the time, place and cause of said injury or damage." The giving of such notice is a condition precedent to the maintenance of an action to recover compensation for such injury. The notice required by the statute cannot be waived and must be proved. Brown v. Winthrop, 275 Mass. 43 . Roland v. Kilroy, 282 Mass. 87 . The notice must be given to the mayor, city clerk or treasurer of a city, and cannot be given to any other person. ...