Marshall v. City of Cambridge

Order of Appellate Division affirmed. This is an action of tort, brought in a District Court, in which the plaintiff seeks to recover, from the defendant city, compensation for a personal injury sustained as a result of falling on a sidewalk on a public highway. The parties agreed that if the notice given by the plaintiff was sufficient as matter of law there should be a finding for him. The judge of the District Court ruled that the notice was sufficient and found for the plaintiff. The Appellate Division ordered this finding vacated and judgment for the defendant. The plaintiff appealed. The notice stated that the “fall was caused by a defect on the sidewalk of the highway which the city knew or should have known about.” The defendant sent to the plaintiff a sufficient counternotice alleging that the notice “was insufficient because it did not adequately state the cause of the plaintiff’s injury.” It does not appear that any further notice was sent by the plaintiff. There was, however, no evidence that the plaintiff intended to mislead the defendant or that the defendant actually was misled. See G. L. (Ter. Ed.) c. 84, §§ 18-20, in the amended form; St. 1933, c. 114, §§ 1, 2; St. 1939, c. 147. There was an “omission” to state in the notice the cause of the plaintiff’s injury — not corrected by a new notice upon receipt of the counternotice — rather than an “inaccuracy” in the statement of such cause. Brown v. Winthrop, 275 Mass. 43, 46, and cases cited. Merrill v. Springfield, 284 Mass. 260. See also Cameron v. Somerville, 285 Mass. 307, 310, which is distinguishable. Compare Blanchard v. Stone’s Inc. 304 Mass. 634, 638, where no counternotice was given. Lack of intention to mislead, or failure actually to mislead, does not aid the plaintiff where, as here, there is an “omission,” rather than an “inaccuracy,” in the notice. Brown v. Winthrop, 275 Mass. 43, 46. The notice was not sufficient as matter of law and the plaintiff cannot prevail.