Marcotte v. City of Lewiston

• Decision Date: 29 May 1900
• Citation: 94 Me. 233,47 A. 137
• Parties: MARCOTTE v. CITY OF LEWISTON.
• Court: Maine Supreme Court

47 A. 137

94 Me. 233

MARCOTTE

v. CITY OF LEWISTON.

Supreme Judicial Court of Maine.

May 29, 1900.

(Official.)

Exceptions from supreme court, Androscoggin county.

Action by Joseph Marcotte against the city of Lewiston. Verdict for defendant, and plaintiff excepts. Exceptions sustained.

Argued before PETERS, C. J., and EMERY, WHITEHOUSE, WISWELL, and STROUT, JJ.

M. L. Lezotte, H. W. Oakes, J. A. Pulsifer, and Forest E. Ludden, for plaintiff.

H. E. Holmes, for defendant.

STROUT, J. Action to recover for injuries caused by a defective way. Within 14 days after the accident plaintiff gave written notice to the defendant, in accordance with Rev. St. c. 18, § 80. This notice was served on February 23d. In the notice the injury was stated to have occurred on February 12, 1898, and the declaration alleged the same date. At the trial plaintiff offered evidence tending to show that the accident occurred on the 13th instead of the 12th. This evidence was excluded, and a verdict ordered for defendant Plaintiff has exception.

Did this error in the date of the accident defeat the action? We think not. The cause of action was complete, if this was a defective way, of which defendant had 24 hours previous notice, and an injury was received thereby while plaintiff was in the exercise of due care, and without fault on his part. The date of the accident is in no sense an element. The statute is remedial, and to be construed and applied as such. The right to the remedy accrues when the injury is received, but to protect towns against possible fraud and stale claims, where opportunity for investigation may be lost, and discovery of evidence difficult, the statute requires the party, within 14 days after its occurrence, to give written notice to the municipal officers, "setting forth his claim for damages, and specifying the nature of his injuries, and the nature and location of the defect which caused such injury." The manifest purpose of this requirement is to afford opportunity to the town officers to examine the place, ascertain from persons having knowledge of the facts, while the recollection is fresh, all the attending circumstances, and determine as to the liability of the town, and prepare its defense, if the town officers decide to defend. Blnckington v. Rockland, 66 Me. 332; Wadleigh v. Inhabitants of Mt. Vernon, 75 Me. 79; Low v. Windham, Id. 113.

For all these purposes it is immaterial on what day the accident occurred. Nothing in the statute requires statement of the day. The notice must be given within 14 days. If given within that limit, it will be sufficient, if no specific day is named. The plaintiff is allowed that time to ascertain the precise location and character of the defect, and the...