Home JOHN F. BROCKLESBY, administrator, vs. CITY OF NEWTON. SAME vs. SAME.

294 Mass. 41

December 4, 1935 - March 3, 1936

Court Below: District Court of Newton, Middlesex

Present: RUGG, C.J., CROSBY, PIERCE, DONAHUE, & QUA, JJ.

An admission, by counsel for a municipality in open court at the trial of an action against it under G. L. (Ter. Ed.) c. 84, 15, that the notice required by s. 18 had been given, is binding upon the defendant for that trial; such an admission is not an attempted waiver of the statutory requirement.

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TWO ACTIONS OF TORT. Writs in the District Court of Newton dated July 11 and October 8, 1934, respectively.

The actions were heard together by Lynch, J. There were findings for the plaintiffs in the sums of $1,000 and $3,500, respectively. A report to the Appellate Division for the Northern District was ordered dismissed. The defendant appealed.

E. O'H. Mullowney, for the defendant.

B. F. Thornburg, for the plaintiff.


QUA, J. These are actions for the conscious suffering and death of the plaintiff's intestate, alleged to have resulted from a defect in a highway.

The only questions before us arise from the refusal of the judge to grant rulings requested by the defendant in each case to the effect that the statutory notice given by the plaintiff to the defendant of the time, place and cause of the injury was inadequate. On the first day of the trial, and again during the final arguments, colloquies took place between counsel and with the court, from which the judge was well justified in concluding that the defendant admitted that a sufficient notice had been given and that there was no question of notice in the case.

After what had taken place there was no error in refusing requests for rulings attacking the notice. It is true that the giving of the notice in cases within the statute is one of the facts required to create a cause of action. If it is not given, no cause of action arises. For this reason it has been held that the city or town cannot waive the notice. Gay v. Cambridge, 128 Mass. 387 . This means that there can he no waiver out of court which dispenses with the necessity for giving the notice. It does not bear upon the conduct of a trial in court by an attorney representing the municipality. It does not make it necessary for the plaintiff to prove the giving of a sufficient notice, when that fact is admitted in court by the defendant. It does not prevent the defendant from admitting in court the fact that notice has been given or from stating or agreeing in court that no issue exists as to that fact, just as it might admit, state or agree that the way in question was a pub-

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lic way or that the plaintiff was injured while travelling upon it, or as to the truth of any other fact which is a necessary part of the plaintiff's case. This is not waiving a condition precedent. It is a method of establishing facts. Nothing is more common in practice or more useful in dispatching the business of the courts than for counsel to admit undisputed facts. Their clients, including municipal corporations, are bound by such admissions. Lewis v. Sumner, 13 Met. 269 . Central Bridge Corp. v. Lowell, 15 Gray 106 , 128. Savage v. Blanchard, 148 Mass. 348 . Boston Electric Co. v. Cambridge, 163 Mass. 64 , 68. McMahon v. Lynn & Boston Railroad, 191 Mass. 295 , 299. Mercier v. Union Street Railway, 230 Mass. 397 , 406. Graustein v. H. P. Hood & Sons, Inc. 293 Mass. 207 , 217. Oscanyan v. Arms Co. 103 U. S. 261, 263. In Lewis v. Sumner, cited above, as in this case, counsel had admitted the giving of an adequate statutory notice which was essential to the plaintiff's recovery.

Brown v. Winthrop, 275 Mass. 43 , at page 47, is distinguishable from the present case. In that case the town, at a former trial, admitted the giving of the notice, and this court, in reviewing that trial, treated that fact as thereby established. Brown v. Winthrop, 270 Mass. 322 , 324. But before the beginning of the second trial, counsel for the town informed counsel for the plaintiff that he would require proof of notice, and this court held that the actual giving of the notice could not be waived and that under the circumstances the admission at the first trial that notice had been given was not binding at the second trial. See Cadigan v. Crabtree, 192 Mass. 233 , 241; Perry v. Simpson Waterproof Manuf. Co. 40 Conn. 313; Holley v. Young, 68 Maine, 215; Currie v. Cleveland, 108 Maine, 103; Morrison v. Montgomery, 105 Kans. 430; Paine v. Chicago & North Western Railway, 217 Wis. 601; Johnston v. Cornelius, 200 Mich. 209, 213; Stemmler v. Mayor, Aldermen & Commonalty of New York, 179 N. Y. 473, 481. In the cases at bar the very trial here under review proceeded upon the theory that notice had been admitted. Doubtless counsel for the plaintiff and the judge acted in reli-

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ance upon that admission. At the close of the trial it was too late to question the notice.

We have not found it necessary to pass upon various contentions not herein mentioned.

Order dismissing report affirmed.