Tobin v. Inhabitants of Brimfield

• Decision Date: 30 October 1902
• Parties: TOBIN v. INHABITANTS OF BRIMFIELD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

182 Mass. 117
65 N.E. 28

TOBIN
v.
INHABITANTS OF BRIMFIELD.

Supreme Judicial Court of Massachusetts, Hampden.

Oct. 30, 1902.

Exceptions from superior court, Hampden county; Elisha B. Maynard, Judge.

Action by Charles Tobin, per pro. ami, against the inhabitants of Brimfield. Plaintiff excepts. Exceptions overruled.

J. B. Carroll and [182 Mass. 118]W. H. McClintock, for plaintiff.

Brooks & Hamilton, for defendant.

HOLMES, C. J.

This is an action for personal injuries suffered on March 4, 1899, and alleged to have been caused by a defect in a highway in the defendant town. According to the plaintiff the place of the accident was about one hundred feet to the east or Fiskdale side of five small bridges, which may be assumed to have been a monument familiar to everybody. The notice to the town under Pub. St. c. 52, § 19, amended St. 1894, c. 422 (Rev. Laws, c. 51, § 20), stated the place as follows: ‘While driving along the Fiskdale road, so called, leading from Wales, about three or four miles from Wales, at a point on said road on the Fiskdale side of the five bridges, so called.’ The jury found for the defendant, and under the instructions at the trial may have done so, although it is not likely that they did, on the ground that the notice did not sufficiently state the place of the accident, that the plaintiff intended to mislead the defendant and that the defendant was misled. The plaintiff asked a ruling that the defendant could not avail itself of any omission to state the place of the injury, because it did not appear to have given the plaintiff a notification that the notice was not in compliance with the law, as required by St. 1894, c. 389 (Rev. Laws, c. 51, § 22). This was refused and the plaintiff excepted. The main question before us is whether the defect in the notice constituted an ‘omission to state the place’ within the meaning of the last cited act.

In view of the re-enactment a few days after this statute of the provision in the Public Statutes that a notice shall not be invalid by reason of any inaccuracy in stating the time, place or cause, provided that there was no intention to mislead and the defendant was not misled (St. 1894, c. 422), and in view also of the distinction between inaccuracy and omission taken shortly before in Gardner v. Weymouth, 155 Mass. 595, 597, 30 N. E. 363, we think it must be assumed that the statutes intend an antithesis. See, also, Rev. Laws, c. 51, §§ 20, 22. If there is an omission to state the [182 Mass...