Merrill v. Paige

• Decision Date: 28 February 1918
• Citation: 229 Mass. 511,118 N.E. 862
• Parties: MERRILL v. PAIGE (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

229 Mass. 511

118 N.E. 862

MERRILL

v.PAIGE (two cases).

Supreme Judicial Court of Massachusetts, Essex.

Feb. 28, 1918.

Report from Superior Court, Essex County; George A. Sanderson, Judge.

Actions of tort by Katherine D. Merrill and by Charles W. Merrill, husband and wife, against Edward W. Paige. There was verdict for the wife for $500, and for the husband for $150, and defendant excepted. On report to the Supreme Judicial Court. Judgment ordered entered on the verdict in each case.

M. L. Sullivan and J. J. Ronan, both of Salem, for plaintiffs.

Peabody, Arnold, Batchelder & Luther, of Boston, for defendant.

RUGG, C. J.

The female plaintiff, hereafter called the wife, received injuries by falling upon ice on the sidewalk in front of a block owned by the defendant. There was evidence that this ice was caused by water collected by a spout on the building of the defendant and discharged within six or eight inches of the sidewalk, whither it flowed and froze. The defendant might have been found responsible for this condition. Field v. Gowdy, 199 Mass. 568, 85 N. E. 884,19 L. R. A. (N. S.) 236.

The defendant called upon the wife on the day after her injury. There then was conversation respecting the time, place and extent of her injury. The defendant received on December 26, 1916, a communication bearing that date (signed by the husband, who is the other plaintiff), of this tenor:

‘Mr. Edward P.-Dear Sir: My wife fell on the sidewalk in front of a building owned by you on Market street, Monday morning, Dec. 18, 1916, and injured herself and is now under the care of a doctor. The fall was caused by the icy condition of the sidewalk. Respectfully yours.’

Both plaintiffs rely upon this as a statutory notice.

It is not necessary to decide whether this would have been a sufficient notice under Grebenstein v. Stone & Webster Engineering Co., 209 Mass. 196, 95 N. E. 503, and McNamara v. Boston & Maine R. R., 216 Mass. 506, 104 N. E. 285, because since the decision of those cases the pertinent statute law has been changed. One receiving injury from snow or ice upon a way adjoining premises of a landowner, who has tortiously caused it to be there, must give a written notice as a condition precedent to any right of recovery against such landowner. Baird v. Baptist Society, 208 Mass. 29, 94 N. E. 296. It is enacted by St. 1913, c. 324, which is an amendment of St. 1908, c. 305, amending R. L. c. 51, §§ 20, 22, and re-enacting those sections as amended, that:

‘The provisions of sections twenty, twenty-one and twenty-two of chapter fifty-one of the Revised Laws, in so far as they relate to notices of injuries resulting from snow or ice, shall apply’ to cases like the present.

There is no express reference among these words to amendments to the designated sections occurring after St. 1908, c. 305. Section 21, however, had been amended prior to 1913 in a material particular by St. 1912, c. 221. The form of that amendment was in these words:

‘Section 1. Section twenty-one of chapter fifty-one of the Revised Laws, as amended by section one of chapter one hundred and sixty-six of the Acts of the year nineteen hundred and ten, is hereby further amended by adding at the end thereof the words: Any form of written communication signed by the person so injured, or by some person in his behalf, or by his executor or administrator, or by some person in behalf of such executor or administrator, which contains the information that the person was so injured, giving the time, place and cause of the injury or damage, shall be considered a sufficient notice-so as to read as follows: Section 21.’

Then follows section 21 in its complete form as amended, including both the words theretofore composing it and those newly added by the amendment. The section in its previous form thereafter ceased to exist altogether as a statute. It became embodied as a part of a new...