Merrill v. Paige, 229 Mass. 511

Merrill v. Paige

229 Mass. 511 | Mass. | 1918

Rugg, C. J.

The female plaintiff, hereafter called the wife, received injuries by falling upon ice on the sidewalk in front of a block owned by the defendant. There was evidence that this ice was caused by water collected by a spout on the building of the defendant and discharged within six or eight [inches of the sidewalk, whither it flowed and froze. The defendant might have been found responsible for this condition. Field v. Gowdy, 199 Mass. 568.

The defendant called upon the wife on the day after her injury.. There then was conversation respecting the time, place and extent of her injury. The defendant received on December 26, 1916, a communication bearing that date (signed by the husband, who is the other plaintiff), of this tenor: “Mr. Edward P. Dear Sir: — My wife fell on the sidewalk in front of a building owned by you on Market Street, Monday morning, Dec. 18, 1916, and injured herself and is now under the care of a doctor. The fall was caused by the icy condition of the sidewalk. Respectfully yours.” Both plaintiffs rely upon this as a statutory notice.

It is not necessary to decide whether this would have been a sufficient notice under Grebenstein v. Stone & Webster Engineering Corp. 209 Mass. 196, and McNamara v. Boston & Maine Railroad, 216 Mass. 506, because since the decision of those cases the pertinent statute law has been changed. One receiving injury from *513snow or ice upon a way adjoining premises of a landowner who has tortiously caused it to be there, must give a written notice as a condition precedent to any right of recovery against such landowner. Baird v. Baptist Society, 208 Mass. 29. It is enacted by St. 1913, c. 324 (which is an amendment of St. 1908, c. 305, amending R. L. c. 51, §§ 20-22, and re-enacting those sections as amended), that "The provisions of sections twenty, twenty-one and twenty-two of chapter fifty-one of the Revised Laws, in so far as they relate to notices of injuries resulting from snow or ice, shall apply” to cases like the present. There is no express reference among these words to amendments to the designated sections occurring after the enactment of St. 1908, c.- 305. Section twenty-one, however, had been amended previous to 1913 in a material particular by St. 1912, c. 221. The form of that amendment was in these words: “Section 1. Section twenty-one of chapter fifty-one of the Revised Laws, as amended by section one of chapter one hundred and sixty-six of the acts of the year nineteen hundred and ten, is hereby further amended by adding at the end thereof the words: — Any form of written communication signed by the person so injured, or by some person in his behalf, or by his executor or administrator, or by some person in behalf of such executor or administrator, which contains the information that the person was so injured, giving the time, place and cause of the injury or damage, shall be considered a sufficient notice,—so as to read as follows:—Section 21 ...” Then follows § 21 in its complete form as amended, including both the words theretofore composing it and those newly added by the amendment. The section in its previous form thereafter ceased to exist altogether as a statute. It became embodied as a part of a new and different statute. The words of the former statute incorporated with the modifying sentence now appended by the amendment constitute a rectified section expressive of the present mandate of the general court upon the subject. The old § 21 has become a thing of the past. It has been superseded by a new section of the same number. The express statement of legislative purpose is that the section shall be transformed “so as to read as follows.” There is no reason why that positive affirmative declaration should not be given effect. Section 21 became after that amendment as if originally enacted *514in that phrase. It was not necessary, therefore, in enacting St. 1913, c. 324, to do more than refer to “section twenty-one” in order to make manifest a design that that section in its amended form should be applicable. For convenience of reference and to avoid confusion often reference is made to the amending act. But under the circumstances here disclosed the reference imported the section as amended respecting notice into the snow and ice statute. Brooks v. Fitchburg & Leominster Street Railway, 200 Mass. 8, 17.

No discussion is required to demonstrate that the letter sent to the defendant was a written communication containing the information that the wife had suffered damages by ice with sufficient specifications as to the time, place and cause of her injury.

The notice was signed by the husband and not by the wife. There is no direct statement to the effect that it was signed by him in her behalf. It is not necessary that the notice should affirm in terms that it is given in behalf of the injured person. It is enough if this reasonably appears. Under the facts here disclosed the present signature was enough to comply with the requirements of the law. Meniz v. Quissett Mill, 216 Mass. 552, 555. Greenstein v. Chick, 187 Mass. 157.

The entry in each case, in accordance with the terms of the report, may be

Judgment on the verdict.