Nash v. Town of South Hadley
| Decision Date | 20 October 1887 |
| Parties | NASH v. INHABITANTS OF SOUTH HADLEY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
D.W. Bond, for plaintiff.
The court erred in ruling that the action could not be maintained for want of a sufficient notice. The notice was properly given. Taylor v. Woburn, 130 Mass. 494. The act of 1877 did not provide for a case where the person injured died within 30 days after the injury, without having given notice. The provision as to the incapacity was the same as in the present statute. The present case is not within the provisions of chapter 236 of the Acts of 1881, (now Pub.St c. 52, § 1.) The person injured lived more than 10 days, in a condition such as this court has held it was possible for him, within the meaning of the statute, to have given the notice. Mitchell v. Worcester, 129 Mass. 525. Hence the present case is governed by precisely the same provisions of law, in respect to the death of the person injured without having given any notice, as the case of Taylor v. Woburn supra; and it is submitted that the grounds upon which the decision in that case was made are equally applicable to the present case.
R.O Dwight, for defendant.
The giving of the notice required by statute is a condition precedent to the maintenance of this form of action. Gay v. Cambridge, 128 Mass. 387. The sufficiency of this notice is to be determined by the court. Shea v. Lowell, 132 Mass. 187, 189. The court properly ruled that the notice in this action is insufficient: (1) Because it should have been given by the testator, who was, from the time of the accident (August 18th) until his death, (September 5th,) a period of 18 days, of sufficient capacity. Pub.St. c. 52, § 21. Though physically unable to give the notice testator was not so mentally incapacitated that he could not have given the notice through some other person. Mitchell v. Worcester, 129 Mass. 525, 526. (2) Because, even though testator had been mentally and physically unable to give the notice before the death, that given by plaintiff is insufficient, as he had not, at the time of giving it, been appointed executor. Pub.St. c. 52, § 21. The authority given by St.1881, c. 236, now incorporated into Pub.St. c. 52, § 21, to an executor or administrator to give such notice within 30 days after his appointment, renders inapplicable the reasoning and decision of this court in Taylor v. Woburn, 130 Mass. 494, 497.
OPINION
In the case at bar, the party injured lived more than 10 days in a condition in which it was possible for him to have given the notice required by statute, as preliminary to an action against the town for the injury sustained by him. Mitchell v. Worcester, 129 Mass. 525; Pub.St. c. 52, §§ 19-21. The notice which is claimed to be sufficient under the statute was in fact given by his son within 30 days after the decease of the injured party; the son being the executor named in his will, and having been, subsequently to the giving of such notice, appointed executor upon the probate of the will. Without passing upon the question whether a notice given by one who is subsequently appointed executor of an injured party is now sufficient, although given previous to his appointment as such, if it is in other respects in compliance with the statute, we proceed to consider the contention of the plaintiff that a sufficient notice may be given by an executor, even when the party injured has survived 10 days or more, not exceeding 30 days, and during that time was himself of sufficient capacity. The statute (chapter 52, § 19) has provided that a notice in writing shall be given by the party injured, or some one on his behalf, within 30 days after the injury, to the town claimed to be responsible therefor; "but if, from physical or mental incapacity, it is impossible for the person injured to give the notice within the time provided in said section, he...
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