132 Mass. 187 | Mass. | 1882
Since the amendment of the St. of 1877, c. 234, § 4, by the St. of 1879, e. 244, it is necessary that a person injured by a defect in a highway should, as a condition precedent to his right to maintain an action against the city or town obliged by law to keep the highway in repair, give to the city or town notice in writing, signed by him or by some person duly authorized by him, of the time, place and cause of his injury or damage.
The written notice given by the plaintiff to the defendant in this case was not a compliance with the statute, because it did not sufficiently state either the place or the cause of the injury. St. 1877, c. 234, § 3. Miles v. Lynn, 130 Mass. 398. Donnelly v. Fall River, 130 Mass. 115. Noonan v. Lawrence, 130 Mass. 161.
It would violate the provisions and defeat the purposes of the statute if the plaintiff were permitted to supply the deficiencies of the written notice by proof that the city or its officers had oral information from her, or from any other source, of the time, place and cause of her injury, and the court rightly rejected the evidence offered by her for this purpose. The notice cannot be partly written and partly oral; it must be wholly in writing, and its sufficiency is to be determined by the court. The court therefore rightly refused to give the first, second, and fourth instructions requested by the plaintiff.
The notice was served upon the city clerk, and the plaintiff asked the court to rule “ that, in the absence of all inquiry or objection to the notice by the city clerk at the time it was served and a copy of it given back to the plaintiff’s attorney by him, it may justly be presumed that be, acting for the defendant, received the notice as being sufficiently specific, and, making no objection, waived a more extended specification.”
The court could not rule, as matter of law, that the silence of the city clerk was a waiver by the city. He was not bound to make any reply when the notice was served upon him, and his silence would not be sufficient evidence of a waiver, even if he had any power to waive the rights of the city.
Exceptions overruled.
On the twenty-third day of January 1882, the Honorable Charles Allen was appointed a justice of this court, in place of Mr. Justice Morton, appointed Chief Justice, and took his seat upon the bench on the twenty-fourth day of the same month, at the term of the court then held at Boston in the county of Suffolk.