MaCk v. New York, N.H. & H.R. Co.
| Decision Date | 21 November 1898 |
| Citation | 172 Mass. 185,51 N.E. 1076 |
| Parties | MACK v. NEW YORK, N.H. & H.R. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
D.E. Leary and J.L. Doherty, for plaintiff.
W.S Robinson, for defendant.
This is an action for personal injuries sustained by the plaintiff while crossing the defendant's road upon a highway in the state of Connecticut. The plaintiff's case is that he fell and was hurt because the planks of the crossing were rotten, that the statutes of Connecticut made it the defendant's duty to keep the planks in repair, and that they give him an action for injuries caused by the defendant's failure to obey the law. Gen.St.Conn. §§ 2673, 3499. But by section 2673 the right to maintain the action against a corporation is made conditional upon giving written notice within a certain time to the clerk of such corporation. The judge before whom the case was tried ruled that the action could not be maintained, because notice had not been given as required by law. The plaintiff excepted.
No written notice was given by the plaintiff, except a letter from his lawyers, addressed and sent to the president of the defendant company. The lawyer testified that before sending the letter he examined the reports of the defendant, and also of the railroad commissioners, and made inquiries, and found no officer of the company called the "clerk." But it did appear that there was a secretary, William D. Bishop Jr., at Bridgeport, in the state. The only question raised by the ruling which it is necessary to consider is whether this secretary was the clerk of the corporation, within the meaning of section 2673. A majority of the court is of opinion that the two words have the same meaning, so far as this case is concerned. By section 3455 it is provided that the direction of the affairs of such companies shall be in a board of directors, who shall elect a president, "and may also choose a secretary who shall also be secretary of the company, and be sworn to a faithful discharge of his duty." There is no other provision for a clerk. Yet there is no doubt that section 2673 applies to railroad companies. Shalley v. Railway Co., 64 Conn. 381 386, 387, 30 A. 135; Mack v. Railroad Co., 164 Mass 393, 41 N.E. 653. It is not to be supposed that the legislature would have required the notice to be given to the clerk of such companies, if it did not assume that they must have a "clerk"; taking that word in the sense in which it was used in section 2673, making the requirement. We are aware of no difference between the duties of the secretary of a corporation--at least, where there is no officer distinctively called "clerk"--and those of one called "clerk." No difference is suggested by the counsel for the plaintiff or by the dictionaries. "Clerk" and "secretary" seem to be regarded as synonymous in a recent learned work. 4 Thomp.Corp. c. 98, § 4693. It is said that the statute should be liberally construed. We do not get much light from such generalities, but surely it would be a very illiberal...
To continue reading
Request your trial