Gardner v. Inhabitants of Weymouth

Knowlton, J. Under the Pub. Sts. c. 52, § 19, a person injured by a defect in a highway, who seeks to recover from a city or town for his injury, must give notice in writing of the time, place, and cause of the injury. This statute has never been repealed, but remains in full force. The only modification of it applicable to ordinary cases is found in the St. of 1882, c. 36, which is repealed and re-enacted by the St. of 1888, c. 114. The language of the amendment is as follows: “ But no notice given under the provisions of this section shall be deemed to be invalid or insufficient solely by reason of any inaccuracy in stating the time, place, or cause of the injury; provided, that it is shown that there was no intention to mislead, and that the party entitled to notice was not in fact misled thereby.” This amendment does not relieve a plaintiff of the necessity of giving a notice, nor of stating in his notice each of the three facts called for by the statute, namely, the time, place, and cause of the injury. It purports to relieve only from the effect of an inaccuracy in stating either of these, where there was no intention to mislead the defendant, and where the defendant was not in fact misled. Construing it strictly, it seems to contemplate a case where the notice would be sufficient as to the required elements, were it not for an inaccuracy in the statement that is liable to mislead. Before the passage of this statute, it was held that a notice, to be good, must be sufficiently full and accurate in stating each of the required particulars to furnish substantial aid to the defendant in the investigation of the claim, and to enable the authorities to ascertain with reasonable certainty on [597] what it was founded. Noonan v. Lawrence, 130 Mass. 161. Bailey v. Everett, 132 Mass. 441. We think it would be too strict a-construction to hold that the amendment applies only to cases of misstatement; for an incomplete and imperfect statement which is not false may be termed inaccurate, and may sometimes mislead. Yet the amendment can have no application where there is no statement at all; and this is true, whether the omission to make a statement relates to only one of the required particulars, or to all of them. Since the passage of the amendatory statute, as well as before, there must be, in regard to each particular, a statement such as would, if correct, be of substantial assistance to the authorities in the investigation of the claim. This is a condition precedent to the maintenance of the suit. If there is a statement of the kind required which as to the time or the place or the cause of the injury is inaccurate, whether from falsity or deficiency, whether through omission or error, the plaintiff may still recover if there was no intention to mislead, and if the inaccuracy did not in fact mislead. In the present case the notice contains no statement of the place of the injury, even if it could be held that there is a statement of the cause of it. All that appears is that the accident happened on some sidewalk where there was a hydrant; but this is not enough. For this reason the notice is fatally defective, and it cannot properly be said that there was an inaccuracy in stating the place, so as to make the amendment applicable, when there was no statement of it, nor any attempt to state it. The decision in Fortin v. Easthampton, 142 Mass. 486, does not go far enough to sustain the plaintiff’s contention, and we know of no authority inconsistent with the view of the case which we have taken. See Liffin v. Beverly, 145 Mass. 549; Pendergast v. Clinton, 147 Mass. 402; Canterbury v. Boston, 141 Mass. 215, 218. The principle which governs this case was applied to another very similar statute in Ellinwood v. Worcester, 154 Mass. 590. Exceptions sustained.