145 Mass. 105 | Mass. | 1887
In the case at bar, the person injured lived more than ten days in a condition in which it was possible for him to have given the notice required by statute, as preliminary
The Pub. Sts. c. 52, § 19, have provided that a notice in writing shall be given by the person injured, or by some one on his behalf, within thirty days after the injury, to the town alleged to be responsible therefor; “ but if from physical or mental incapacity it is impossible for the person injured to give the notice within the time provided in said section, he may give the same within ten days after such incapacity is removed, and in case of his death without having given the notice, and without having been for ten days at any time after his injury of sufficient capacity to give the notice, his executor or administrator may give such notice within thirty days after his appointment.” Pub. Sts. e. 52, § 21.
It was held in Taylor v. Woburn, 130 Mass. 494, that a notice might be given by one who was the father of the person injured, who was entitled to administer on his estate, and who was after-wards appointed administrator, as a person giving it on his behalf. That case was decided under the St. of 1877, c. 234, which statute contained in terms no provision for any notice which might be given by an executor or administrator. Such provision is first found in the St. of 1881, c. 236, and is embodied in the Pub. Sts. c. 52, § 21, above recited. The plaintiff urges that this case is governed by precisely the same rules of law, in respect to the death of the person injured without giving notice,
Exceptions overruled.