Sweet v. Pecker
| Decision Date | 03 March 1916 |
| Citation | 223 Mass. 286,111 N.E. 908 |
| Parties | SWEET v. PECKER et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Report from Superior Court, Suffolk County; George A. Sanderson, Judge.
Action by Alfred E. Sweet against Frank S. Pecker and others. Verdict for defendants, and case reported. Verdict to stand.
F. J. Daggett, C. S. Hill, and R. E. Bigney, all of Boston, for plaintiff.
Peabody, Arnold, Batchelder & Luther, of Boston, for defendants.
DE COURCY, J.
This action was brought under R. L. c. 51, § 20, 21, 22, St. 1908, c. 305, and St. 1913, c. 324. A prerequisite of statutory liability is the due service of a proper notice on the person sought to be charged. Baird v. Baptist Society, 208 Mass. 29, 94 N. E. 296;McNamara v. B. & M. R. R., 216 Mass. 506, 104 N. E. 285. The only notice in the case is the following:
‘Boston, Mass., March 23, 1914.
‘To Frank S. and Annie J. Pecker, Owners of Property Numbered 27 and 29 Howard St., Boston, Mass.:
‘A claim against you for damages has been placed in my hands for adjustment, by Mr. Albert E. Sweet, for injuries received by him on February 23rd, about 7 p. m. while walking along the sidewalk of Howard street, in front of building numbered 27 and 29, owned by you.
‘The cause of said injury was the defective condition of the roof of said building, allowing an accumulation of snow and ice to fall upon him.
Yours truly,
Robert E. Bigney.'
It is not disputed that this was a correct notice as to the time, place and cause of the injury, and that it was signed by a person duly authorized. But manifestly it is a notice to the owners, as the persons assumed to be legally responsible for the condition of the premises. Service of it was made by leaving a copy at the house of Annie J. Pecker, one of the owners, as the other one was living out of town. When this action was brought the plaintiff made the alleged owners two of the parties defendant. As he discontinued against them before the case went to trial on the merits, the question of their liability is not before us. See St. 1907, c. 550, § 132; Cerchione v. Hunnewell, 215 Mass. 588, 102 N. E. 908.
The plaintiff seeks to hold the remaining defendants liable as lessees, under the doctrine of Wixon v. Bruce, 187 Mass. 232,72 N. E. 987,68 L. R. A. 248. The record merely states that Levaggi and Niccolini had leased the premises numbered 27, 29, 29 1/2 Howard street, and does not disclose what covenants were in their lease. The conclusive answer to the plaintiff's claim against them, however, is that he failed to give them, as the persons sought to be charged, the notice which is a condition precedent to his right of action under the statute. The paper left by his attorney with Lavaggi, one of the defendants, was a copy of...
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Grueby v. Chase Harris Forbes Corp.
...130 Mass. 275; Miles v. City of Lynn, 130 Mass. 398; Dricoll v. City of Fall River, 163 Mass. 105, 107, 39 N.E. 1003; Sweet v. Pecker, 223 Mass. 286, 111 N.E. 908; Bychower v. United Cigar Stores Co., 253 Mass. 149 N.E. 411; Rankin v. Wordell & McGuire Co., 254 Mass. 109, 149 N.E. 609. But ......
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MacLachlan v. Brotherhood Oil Corp.
...only to owners, tenants and persons who are in possession or are responsible for the upkeep of the premises. Compare Sweet v. Pecker, 223 Mass. 286, 288, 111 N.E. 908 (1916); Bychower v. United Cigar Stores, Co., 253 Mass. 542, 543, 149 N.E. 411 (1925). As Brotherhood was none of these, it ......
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Urban v. Simes
...so that he may have a reasonable chance to examine into the cause of complaint and collect evidence of the facts.’ In Sweet v. Pecker, 223 Mass. 286, 111 N. E. 908, both the owner and the lessee, who had exclusive control of the premises, were made defendants. Notice was served on the owner......
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