Low v. Inhabitants of Windham

75 Me. 113 | Me. | 1883

SvmoNds, J.

The statutes, 1874, c. 215, 1876, c. 97 and 1877, c. 206, which require the plaintiff in an action like this to. have given notice to the town of the fact that he had received an injury upon the highway, within a certain time thereafter and: with certain particulars in regard to it, have been considered by the court in the following cases: Jackman v. Garland, 64 Maine, 133; Blackington v. Rockland, 66 Maine, 332; Sawyer v. Naples, 66 Maine, 453; Perkins v. Oxford, 66 Maine, 547 Veazie v. Rockland, 68 Maine, 511; Bradbury v. Benton, 69 Maine, 194; Hubbard v. Fayette, 70 Maine, 121; Wagner v. Camden, 73 Maine, 485; Rogers v. Shirley, 74 Maine, 144.

In all of these cases, it seems to have been assumed to be an. essential part of the plaintiff’s case, in such an action, to prove that the notice required by the statutes was given. The language off the opinions would in many respects be irrelevant, if proof of the notice were not regarded as one of the conditions of the right of recovery. Notice to the municipal officers according to the statute is expressly stated in Hubbard v. Fayette to be a fact which the plaintiff must prove in order to entitle him to recover, and the precise question is decided by entering the nonsuit on. the ground that the notice was insufficient, in accordance with, the ruling at nisi prius and with the stipulations of the parties iii the report. Wagner v. Camden proceeds upon the same ground. There is no intimation that special pleading is required in defense' in order to raise that issue. If proof of the notice is wanting, the plaintiff’s case fails. Notice must have been given, and that fact must be averred and proved by the plaintiff, to sustain, the action. This is the clear conclusion from the authorities, and the only ground upon which they can be explained.

If tbe notice given in this case could be upheld in all other 'respects, it fails for want of a specification of the nature of the ■plaintiff’s injuries. All that is said in Blackington v. Rockland against a strict construction of notices of this class is true and important. It was right to hold there that notice of an injury to the plaintiff’s horse was notice of the respect in which the plaintiff was injured. It was a notice of damages to property, specifying the property. But it is impossible to hold that the words, "I shall claim damage for injuries which I received,” contain a specification of 'the nature of the plaintiff’s injuries. They might possibly be construed to refer to bodily injuries, as distinguished from damage to property, but we cannot regard the statutory requirement of a notice, "specifying the nature of his injuries,” as fulfilled by a notice to the town that the plaintiff has been injured in his person. That would be a construction opposed to the ordinary force of the words, " to the common meaning of the language.” B,. S., c. 1, § 4, I. The law has not been so understood or administered since its enactment. There are many intimations in the cases cited against the sufficiency of such a notice.

In Hubbard v. Fayette, the first notice given is passed over by the court as " fatally defective in several respects ;” and yet the only material point in which it differs from the second notice more fully considered by the court, is that it makes claim for damages "for injuries which my wife received,’.’ without further specification. It must have been this failure to specify the nature of the wife’s injuries to which the court referred when it treated the first notice as more clearly defective than the second.

It is true that full and exact details of the personal injury are not required, and that the plaintiff is not precluded from recovering for injuries which are not known, and, therefore, cannot be specified at the date of the notice, but which manifest themselves later. The object of the notice in this respect is not to limit the plaintiff’s right of recovery, but to give information to the town, by a general statement such as it is practicable for the plaintiff to make at the time, of the nature of the injuries for which he claims to recover damages. This is as important a requirement of the statute as it is that the plaintiff should not omit to set forth bis claim for damages. Wagner v. Camden, supra. When the main advantage which the town derives from the notice, namely, an early opportunity to investigate the case, is considered, the specification of the nature of the injuries may not be so important as that of the nature and location of the defect, but it is as positive a requirement of the statute and cannot be ignored. This provision by which an early notice to the town of the character and extent of the plain tiffs claim is required, is one of a series of enactments by which the legislature has limited or modified the right of action in this class of cases. It is for the court to allow it its legitimate effect. Bartlett v. Cabot, 54 Vt. 242.

A ruling at the trial against the sufficiency of this notice would have withdrawn the case from the jury. The jpro forma ruling was, therefore, given that the notice was sufficient.

(Exceptions sustained.

Walton, Barrows, Danporth, Virgin and Peters, JJ., concurred.