Hubbard v. Inhabitants of Fayette

Libbey, J. To entitle the plaintiff to recover against the town it is incumbent on her, by act 1876, c. 97, to prove that she notified the municipal officers of the town, or some of them, within sixty days after receiving the injury, by letter or otherwise in writing, setting forth her claim for damages, and specifying the nature of her injuries and the nature and location of the defect which caused them. She introduced in evidence two notices given to the selectmen of the defendant town, one dated February 16, 1877, the other dated March 10, 1877. It is unnecessary to notice the first as it is fatally defective in several respects, and the plaintiff’s counsel do not rely upon it. The second reads as follows: “Fayette, March 10, 1877. To the selectmen of Fayette, Me. Gentlemen: I hereby notifiy you that my wife Sarah It. Hub [124] bard, of Fayette, .sustained an injury of a broken shoulder on account of a defect in the highway in said Fayette, on the 30th day of January last, near the southwest end of the Davenport road, so called. 1 hereby enter a claim against said town of Fayette for the sum of two hundred dollars. John Hubbard, per B.” On April 13, 1877, the selectmen of the town sent a reply addressed to John Hubbard, in which they say “We have considered your case for damages against the town on account of the accident to your wife on the highway and have decided that the town is not liable for.the damages sustained; ” and they deny that there was any defect in the way at the place where the accident is alleged to have occurred. The question presented by the report is, whether the notice is sufficient on proof that the plaintiff’s husband was authorized to act for her. We think it is not. I. It does not purport to come from the plaintiff or to be given in her behalf. It does not set forth her claim for damages; but it sets forth the claim of John Hubbard for damages by reason of the injury to his wife. There is nothing in it giving the municipal officers any notice that the plaintiff made any claim against the town on account of her injuries. Proof that her husband was authorized to act for her does not aid the notice ; because by it he does not purport to act for her and sets forth no claim in her behalf. II. It does not specify the nature of the defect. In this respect it is general. The statement is “ by reason of a defect in the highway.” It should have been sufficiently specific to call the attention of the municipal officers to the particular defect complained of. But it is claimed that the reply of the selectmen is a waiver of the want of notice by the plaintiff, or of the insufficiency of the one given. If the selectmen, being public officers, can legally waive the statute requirement in this respect, in behalf of their town, which we do not intend to decide, we think it clear that they did not do it in this case. A reply denying any liability of the town to John Hubbard for the claim made against it by him, cannot be held to be a waiver of notice by the plaintiff of her claim [125] for which she brings this suit. Veazie v. Rockland, 68 Maine, 511. Plaintiff nonsuit. Appleton, C. J., Walton, Barrows, Danforth and Symonds, JJ., concurred.