Way, Public: defect. Notice. Municipal Corporations, Officers and agents.
A letter to one of the selectmen of a town stating that the writer had "been advised to sue" the town "for an accident which happened to me, last Saturday afternoon on Pond Street sidewalk" and containing language showing that the writer had been damaged in the accident, is a sufficient notice under R. L c. 51, § 21, as amended by St. 1912, c. 221, § 1.
A letter from the board of selectmen to the writer of Ake letter above described, stating that the letter did "not enlighten the Board sufficiently" and asking "if you will kindly in writing or in person advise the Board of Selectmen the exact time and place where you received the injury you wrote about. In fact, please give the Board full information to enable them to investigate the matter," does not fulfil the provisions of R. L. c. 51, § 22, as to the counter notice required in case the notice was inaccurate and them was no intention on the part of the person injured to mislead.
RUGG, C. J.
This is an action of tort whereby the plaintiff seeks to recover compensation for injuries received by her while a traveller on a highway in the defendant town by reason of a defect therein "caused," as found by the jury, "in part by or consisting in part of snow or ice."
Within less than ten days after her injury, the plaintiff sent the letter, signed by her, which is set out above in full. It is lain that this was not a notice such as was required by the law before the enactment of St. 1912, c. 221. See now St. 1917, c. 344, Part IV, § 27. McNamara v. Boston Maine Railroad, 216 Mass. 506. Grebenstein v. Stone Webster Engineering Co. 209 Mass. 196. A significant change was made by that statute in R. L. c. 51, § 20 (see now St. 1917, c. 344, Part IV, § 26), to, the effect that "Any form of written communication signed by the person so injured . . . which contains the information that the person was so injured, giving the time, place and cause of the injury or damage, shall be considered a sufficient notice."
The notice in the case at bar must be tested by the law as amended by that statute. The communication here in question was not directed to the town. But it was addressed to a person who was one of the selectmen. Service of a sufficient notice upon a member of the board of selectmen of a town is adequate by the express terms of the statute. McCarthy v. Dedham, 188 Mass. 204.
The communication, being in writing and served on the proper officer of the town, was a sufficient notice under said c. 221. Merrill v. Paige, 229 Mass. 511.
The written communication was inaccurate further in not stating the place of the injury, since Pond Street was a mile in length and without a sidewalk. Gardner v. Weymouth, 155 Mass. 595, 597. It is provided by R. L. c. 51, § 20, that such a "notice shall not be invalid or insufficient solely by reason of any inaccuracy in stating the time, place or cause of the injury, if it is shown that there was no intention to mislead and that the party entitled to notice was not in fact misled thereby." It is conceded that there was no intention on the part of the plaintiff to mislead and no actual misleading of the officers of the town. Fuller v. Hyde Park, 162 Mass. 51. It is enacted by H. L. c. 51, § 22 (see now St. 1917, c. 344, Part IV, § 28), that a town shall not avail itself in defence "of any omission to state in such notice the time, place or cause of the injury . . . unless, within five days after receipt of a notice," seasonably served, a counter notice is, given calling attention to its insufficiency, and requesting written notice in compliance with the law. In the present case a letter was sent within five days after the first communication, which is set out above in full. This notice was not in compliance with the terms of said § 22 as to counter notice because it requested the plaintiff to enlighten the selectmen "in writing or in person." A request for advice as to the exact time and place of receiving an injury either by a personal interview or in writing is not the equivalent of the request for "a written notice in compliance with the law" contemplated by said § 22. The terms of the letter sent to the plaintiff were satisfied by a conference had at the next meeting of the selectmen. While the town officers cannot waive the statutory requirement for a notice, Gay v. Cambridge, 128 Mass. 387, they are not bound under the law to demand by counter notice in all cases the more perfect notice required by § 22, if they honestly think that the interests of the municipality may be protected otherwise. The plaintiff is not to be prejudiced because they have failed to exercise their right to ask unequivocally for a new notice in writing. The plaintiff in the case at bar complied with the law as to giving notice. Burke v. Lynn, 219 Mass. 302. Merrill v. Paige, 229 Mass. 511.
R. L. c. 51, and St. 1912, c. 221, are repealed by St. 1917, c. 344, Part VIII, § 1, but the case at bar having arisen before May 26, 1917, is governed by their provisions under § 2 of said Part VIII.
Since the exceptions of the defendant must be overruled, the plaintiff is not harmed by alleged errors and waives whatever rights, if any, she might otherwise possess to have them considered.
Defendant's exceptions overruled. Plaintiff's exceptions waived.