Chase v. Inhabitants of Surry

88 Me. 468 | Me. | 1896

Foster J.

This was an action for an injury to the plaintiff’s horse alleged to have been caused by a defective highway in the defendant town.

The verdict was for the plaintiff and the town brings the case before the law court on two exceptions.

I. The first relates to the instruction given to the jury in relation to the twenty-four hours’ actual notice to a highway surveyor acting by appointment as an officer de facto, and notas an officer de jure.

Although this question has been elaborately discussed by the counsel on each side, it becomes unnecessary to consider it here, from the result to which we have arrived in reference to the other exception.

II. No notice of the injury was received by any town officer for more than fourteen days after the accident occurred. It is admitted that the written notice was not received until after the expiration of the fourteen days allowed by statute (JR. S., c. 18, § 80) for giving notice to town officers. But the plaintiff’ contends that he mailed a notice in writing directed to the chairman of the municipal officers of the defendant town, postage prepaid, and properly addressed, within the fourteen days and that such mailing is a legal notification within the purview of the statute, whether actually received by the town officers or not.

Upon this point the presiding justice instructed the jury: " That if this notice was mailed by Mr. Chase at such a time that by the usual and ordinary course of mail it would reach a post-office in the town nearest to the municipal officer to whom it was directed, that that would be a sufficient performance of the duty required by statute, even if that notice was not received by the municipal officer to whom it Avas directed, or any other municipal officer, until after the fourteen days.”

As a condition precedent to the plaintiff’s right to recover, the statute of the State declares that he shall within fourteen days after the injury notify the municipal officers of the town "by letter or otherwise, in writing,” setting forth his claim for damages, and specifying the nature of his injuries and the nature and location of the defect which caused such injury.

Was the mailing of the notice, which was within the fourteen days, and its reception after fourteen days, from the time of receiving the injury, a compliance with the statute?

We think it was not.

The statute expressly provides the time in which such notice may be given, and also the manner of giving it. The time is fixed by the words "within fourteen days thereafter.” The manner is determined by the words, " by letter or otherwise, in writing.” The words " by letter,” etc., relate to the manner and not to the time of giving notice.

The duty imposed by statute upon the party injured is to " notify” one of the municipal officers of the town, and this duty is imperative if he seeks to recover of such town. It is not directory, but mandatory. To "notify” is " to make known.” The statute requires that the municipal officers should have information, or knowledge within the time stated. It requires the party injured to communicate that information, or knowledge ; and it is not enough for him to write a notice, however formal; it is not enough for him to mail it, even within the fourteen days. The writing and mailing a notice within the time is not notifying the officers of the town as the statute requires.

True, the deposit of a letter, properly addressed and stamped, in the post-office, may be prima facie evidence of its receipt by the addressee by due course of mail, for the law assumes that government officers do their duty. Huntley v. Whittier, 105 Mass. 391; Rosenthal v. Walker, 111 U. S., 185, 193; Briggs v. Hervey, 130 Mass. 186; although this doctrine is limited by some decisions to matter expressly authorized by statute, or to the law merchant. Groton v. Lancaster, 16 Mass. 110; Freeman v. Morey, 45 Maine, 50; Bank v. Crafts, 4 Allen, 447. However that may be, it is immaterial in this case, as it is shown that the notice was not, as a matter of fact, received until after the expiration of the fourteen days, and the rule of presumptive evidence applicable to cases falling within the peculiar doctrine of the law merchant, and those expressly authorized by statute, as in the pauper law, does not apply in the case at bar. Shea v. Mass. Benefit Association, 160 Mass. 289, 295.

There is some aualogy between this case and cases where a demand must be made or notice given. In such cases it is held that merely mailing the demand or notice would not be a communication to the person addressed and would be ineffectual unless it was shown that the same was received. Castner v. Farmers Ins. Co. 50 Mich. 273, 277.

It is for a wise purpose that the law requires a notice of injury upon the highway to be given the officers of the town. It is to enable the town to investigate the circumstances while the facts are yet fresh in the memory of witnesses, as well as to protect itself by providing for the enforcement of its rights against other parties who may be liable over to the town for causing the defect.

Exception sustained.