310 Mass. 822

October 9, 1941

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, Sections 18-20, in the amended form; St. 1933, c. 114, Sections 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.

Home SETRAK K. BOYAJIAN, petitioner to establish the truth of exceptions.

310 Mass. 822

October 27, 1941

Petition dismissed. Ordered that a copy of this rescript be transmitted to the clerk of the Superior Court for the county of Worcester, where the original case was brought. This is a petition, filed in this court on May 12, 1941, by the plaintiff in the equity case of Boyajian v. Hart, et als. to establish exceptions disallowed in the Superior Court. There are at least three reasons for dismissing the petition. 1. The petition does not show that it was filed "within twenty days after notice of such refusal," as required by Rule 6 of the Rules of the Supreme Judicial Court for the Regulation of Practice before the Full Court (1926), 252 Mass. 585 , 587. The notice therein referred to, as applied to this case, is a notice of the Superior Court. Under

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the Rules of the Superior Court (1932) Rules 3 and 74, such a notice could have been given by mail and would be given when mailed in conformity with the rules. Checkoway v. Cashman Brothers Co. 305 Mass. 470. Lincoln Electric Co. v. Sovrensky, 305 Mass. 476, 477. Siegel, petitioner, 309 Mass. 553. The petition does not show that notice in this case was not given by mail or, if mailed, was not mailed more than twenty days before the petition was filed. See Siegel, petitioner, 309 Mass. 553. 2. The petitioner did not give notice of the filing of the petition in accordance with the requirement of said Rule 6 that the petitioner "shall, before filing his petition, give notice thereof to the adverse party, by delivering a copy thereof to him or his attorney of record." Unlike the rules of the Superior Court, this rule contains no provision for notice by mailing and, consequently, in accordance with the principle generally applicable where there is no such provision, such notice is not given until received by the person to be notified. Regan v. Atlantic Refining Co. 304 Mass. 353, 354. Rule 6 was so interpreted in Thorndike, petitioner, 270 Mass. 334, 335, where it was said: "Before the petition is filed, notice must reach the adverse party or his attorney accompanied by copy of the petition proposed to be filed . . . The rule does not specify precisely how the copy and notice must be delivered. If resort is had to the mail, there must be proof that delivery was made to the adverse party or his attorney of record before the petition was filed." There was no such proof in the case at bar. The notice was received on May 13, 1941 -- the day after the filing of the petition. Delivery of the notice within the twenty-day period, but after the petition was filed, would not have been compliance with the rule. See McCarty v. Boyden, 275 Mass. 91, 93. The rule so interpreted cannot be pronounced void as unreasonable or beyond the scope of the statute applicable to such rules (G. L. c. 231, Section 117) on the ground that it imposed an unreasonable burden upon an excepting party -- at least in the circumstances of this case. 3. Even if the truth of the exceptions was established "no question of law of such gravity as properly to call for consideration of the court would be presented." Commonwealth v. Vallarelli, 273 Mass. 240, 247. The exceptions sought to be established are to an order striking from the record a motion of the petitioner and to an order forbidding the filing of further papers by him. It does not appear in the bill of exceptions that a final decree had not been entered in the case or that the petitioner's motion or any paper that he sought to file was of such a nature as to have any standing after the entry of a final decree. See Kingsley v. Fall River, 280 Mass. 395, 398; G. L. (Ter. Ed.) c. 214, Sections 21, 22.