Tobin v. Taintor

229 Mass. 174 | Mass. | 1918

Carroll, J.

The plaintiff while a traveller upon a public street in Cambridge on February 8,1911, was injured by snow and ice, from the defendant’s occupied building, falling upon her. The question in the case is whether due and sufficient notice was given in accordance with St. 1908, c. 305. The plaintiff’s attorney testified that on February 11, 1911, he gave notice to the defendant by mailing a letter, postage prepaid, to him at No. 53 State Street, Boston, Mass., stating the time, place and cause of the accident and claiming damages. On the envelope was a notice “ return to Room 306, Kimball Building, Boston, Mass.” The letter was deposited in the regular mail chute of the Kimball Building and was not returned to the attorney. The defendant denied that he received this letter and testified that he never received any communication from the plaintiff’s attorney until he received a letter dated October 22, 1912. Under this statute, St. 1908, c. 305, the due service of a proper notice on the person sought to be charged, is a condition precedent to recovery. Baird v. Baptist Society, 208 Mass. 29. Sweet v. Pecker, 223 Mass. 286. Notice is to be given to the person obliged by law to keep the building in repair and “Leaving the notice with the occupant of said premises, or, in case there is no occupant, posting the same in a conspicuous place thereon, shall be a sufficient compliance with the foregoing provisions.”

In Blanchard v. Ely, 179 Mass. 586, which was a petition to enforce a lien under Pub. Sts. c. 192, § 24, requiring a demand for payment to be “delivered to the debtor or left at his usual place of abode,” it was held that demand in proper form, sent by mail, was a compliance with the statute. In that case the notice was received by the defendant at his residence, on the day after it was mailed, but the question decided was that a demand sent by mail was properly served. That case governs the case at bar and a notice sent by mail under St. 1908, c. 305, to the person obliged by law to keep the premises in repair was properly given. There was evidence that a notice in proper form was sent by mail to the defendant and was never returned. This was some evidence that the notice was sent and received. The depositing in the mail chute in the Kimball Building of a letter properly addressed, with the postage prepaid, is prima facie evidence that the defendant received it. It is a presumption of fact founded on the probability that the officers of the government will do their duty. Swampscott Machine Co. v. Rice, 159 Mass. 404. Johnson v. Brown, 154 Mass. 105, 106. Huntley v. Whittier, 105 Mass. 391. Briggs v. Hervey, 130 Mass. 186. As there was evidence that the notice was sent and received, the judge could not say as matter of law that it did not reach the defendant. Notwithstanding his testimony that he did not receive it, it was a question of fact for the jury. Shea v. New York, New Haven, & Hartford Railroad, 173 Mass. 177, 179. Elliott v. Baker, 194 Mass. 518.

The language of the statute which permits the leaving of the notice with the occupant of the premises, or if there is no occupant, posting the same in a conspicuous place thereon, provides a convenient way for the giving of the notice where the landlord is unknown or if for any other reason it is difficult to deliver the notice. This language does not imply that a proper notice sent by mail to the defendant is ineffectual. Blanchard v. Ely, supra.

Exceptions overruled.