Taylor v. Inhabitants of Woburn

Citation130 Mass. 494
PartiesJohn B. Taylor, administrator, v. Inhabitants of Woburn. Susan E. Taylor v. Same. Lily L. Taylor v. Same
Decision Date02 March 1881
CourtUnited States State Supreme Judicial Court of Massachusetts

Exceptions overruled.

T. H Sweetser & J. W. Johnson, for the defendant.

W. B Gale & W. N. Mason, (J. P. Gale with them,) for the plaintiffs.

Lord J. Colt & Field, JJ., absent.

OPINION

Lord, J.

These three actions, which were tried together, were brought to recover damages sustained at the same time bye the three children of John B. Taylor, by reason of a defect in a highway in the defendant town. One of the children, a son, died soon after the accident, and the plaintiff in the first case sues as his administrator. The causes of action accrued after the St. of 1877, c. 234, and before the St. of 1879 required the notice prescribed by the St. of 1877 to be in writing. In each case the jury returned a verdict for the plaintiff; and the defendant alleged exceptions.

The first question made by the defendant is whether a proper notice was given. The statute requires that the notice should be given by the person injured or by some one in his behalf, and in the case of a town it was provided that the notice thus required should be sufficient if given to one of the selectmen. It does not require either that the party notifying shall give notice to the board, or that the selectman who receives notice shall inform the board. The rights of the injured party cannot be affected by any action or failure to act of such selectman in reference to notice; and so the evidence offered that the selectman did not notify the board was rightly rejected as immaterial.

The next question is whether the notice was given by the proper person. The only notice given was by the plaintiff in the first case, the father of the plaintiffs in the other two cases, they being minors. The St. of 1879, c. 244, requires the notice to be "in writing signed by the person injured, or by some person thereto by him duly authorized." The language of the St. of 1877, c. 234, in reference to such notice, is, "and may also be given by the person injured or by any other person in his behalf." This change of phraseology may be significant. There are many acts which one may do for another, a subsequent ratification of which by the principal is equivalent to previous due authority; but whether the phraseology of the last statute limits the authority given by the previous statute we do not deem it necessary to determine.

So far as the minor daughters are concerned, there would hardly seem to be any other appropriate mode of notice; they are not in law supposed to be capable to do anything in derogation of their rights, and any laches upon their part to fail to give a notice within the thirty days could hardly be held to defeat their right, unless the provision of law that the notice may be given by some one in their behalf should be held to be sufficient authority for another to give the notice; the father is their natural guardian, and, if it be not a duty imposed upon him to take any steps to secure their rights, it is certainly reasonable to allow him to assume to do for them anything which the statute says may be done by any person in their behalf to secure them in their rights as to other persons.

As to the son, assuming him to have been of age, he was dead, and thus incapable of acting. The father had the right of administration upon his estate, which right he subsequently exercised; and, in anticipation of such administration, he had authority to do what was necessary to preserve his estate and his right of property. In White v. Stoddard, 11 Gray 258, the holder of a promissory note having died before its maturity, leaving a will and naming an executor who presented the will for probate but declined the trust, and an administrator having been appointed with the will annexed, who, within a week after his appointment, found the note among the papers of the deceased and demanded payment the next day, and duly notified the indorsers, it was held that such notice was sufficient to charge the indorsers; and, in a very elaborate opinion by Chief Justice Shaw, in Rand v. Hubbard, 4 Met. 252, he discussed the subject in his usually exhaustive manner, expressed surprise at the dearth of decisions upon the question, and the want of uniformity in text-writers, and decided that an executor of a will of a citizen of New York, which had been proved in that State but which had not been filed in a probate office in this Commonwealth, and no administration having been granted here, might, at the maturity of a note due his testator, send the note to a notary in Massachusetts and have demand and notice properly made, although he had not the right to collect the note in this Commonwealth. We think it is properly inferrible from these decisions that although it is not laches that demand and notice were not made at the maturity of the note, when there was no person legally authorized to collect the note, yet that a demand and notice at the maturity of the note by one who had the right of administration of the estate, and to whom administration was afterward committed, would be sufficient.

In this case, the notice was given by the person who became the administrator, and who at the time of the notice had the right of administration; so that the person who gave the notice was the person who in law was bound to give the notice, and the only difference to the defendant in respect to it was that he gave the notice sooner than by law he was required to do; and we think it would be holding the law altogether too strictly to decide that he was not a person who might properly give the notice. The fact that he afterward became administrator, and adopted the notice which he had previously given, would perhaps be sufficient evidence of compliance with the statute; but we think it more satisfactory to place the decision upon all the facts in the case, the relation of the parties, the statute authority for another to act for the person interested, and the clear purpose manifested thus to act in behalf of his deceased son, and the full knowledge of the defendant that he was thus acting and thus claiming to act, with no objection upon their part to the propriety of such action.

It is further objected that the notice was insufficient in form. No form of notice is specified in the statute; but it must be of the time, place and cause of the injury. The time stated by the father to one of the selectmen was Christmas morning. This we think sufficiently precise as to time; and although we do not mean to intimate that the naming of a day is not sufficiently precise, certainly there can be no objection to the time when a well-known division of a day is named. The place of which notice was given was Sheridan Street, and the particular defect was a part of a post in Sheridan Street. If that were all, the question whether Sheridan Street would be sufficient as a designation of the place would arise; but that was not all. The post was referred to between the father and the selectman, and the father was told by the selectman that he had been to the spot, and had seen the post, so that the exact locality was not...

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  • Brown v. Salt Lake City
    • United States
    • Utah Supreme Court
    • January 9, 1908
    ...to the city council. (Sec. 312, Laws 1903, p. 12.) A claim for death of a person must be presented to the city authorities. (Taylor v. Woburn, 130 Mass. 494; Madden v. Springfield, 131 Mass. 441.) The requirement is reasonable and is mandatory, and a condition precedent to recovery. (Lincol......
  • Sheehan v. Commercial Travelers' Mut. Acc. Ass'n
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • July 5, 1933
    ...Central Ins. Co., 154 N. Y. 449, 458, 459, 463,48 N. E. 751,39 L. R. A. 433, 61 Am. St. Rep. 627. See, also, Taylor v. Inhabitants of Woburn, 130 Mass. 494, 497, 498;Maskas v. North American Accident Ins. Co., 279 Mass. 523, 527, 528, 181 N. E. 750. The record does not require us to conside......
  • Stoliker v. City of Boston
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • February 12, 1910
    ...the requisite notice if they did so in due season after their appointment. This is indicated by the reasoning of the court in Taylor v. Woburn, 130 Mass. 494, Nash v. South Hadley, 145 Mass. 105, 13 N.E. and Lukkonen v. Fore River Shipbuilding Co., 197 Mass. 586, 84 N.E. 299. It is difficul......
  • Stoliker v. City of Boston
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • February 12, 1910
    ...the requisite notice if they did so in due season after their appointment. This is indicated by the reasoning of the court in Taylor v. Woburn, 130 Mass. 494,Nash v. South Hadley, 145 Mass. 105, 13 N. E. 376, and Lukkonen v. Fore River Shipbuilding Co., 197 Mass. 586, 84 N. E. 299. It is di......
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