315 Mass. 757

November 2, 1943

Judgment on the verdict for the defendant. This is an action of tort brought in the Superior Court to recover compensation for personal injuries alleged to have been sustained by the plaintiff as a result of slipping on an accumulation of ice on the sidewalk adjacent to the premises of the defendant. The case was tried before a judge and a jury. Upon motion of the defendant a verdict was directed for the defendant. The judge reported the case for the determination of this court upon the stipulation of the parties that if there was error in the direction of a verdict, judgment should be entered for the plaintiff in the sum of $1,500, otherwise judgment should be entered on the verdict. The verdict was directed rightly. It was an essential element of the plaintiff's case that the plaintiff should have given notice to the defendant of the time, place and cause of the plaintiff's injury. G. L. (Ter. Ed.) c. 84, Sections 18, 19, 20, as appearing in St. 1933, c. 114. G. L. (Ter. Ed.) c. 84, Section 21. Walsh v. Riverway Drug Store Inc. 311 Mass. 326, 328, and cases cited. The evidence did not warrant a finding that such notice was given. For this reason, if for no other, the plaintiff cannot maintain his action. Judgment must be entered on the verdict for the defendant.


315 Mass. 757

November 30, 1943

Order dismissing report affirmed. Judgment for the plaintiff on the finding. This action of contract was brought in a District Court. There was a finding for the plaintiff in 1935. Since that time the case has been before this court in various aspects four times. 296 Mass. 215. 298 Mass. 415. 303 Mass. 311. 310 Mass. 825. Immediately upon receipt of the rescript reported in 310 Mass. 825, holding that a motion for a stay of proceedings was denied rightly, the defendant again moved for such a stay on the ground that the action "was brought and prosecuted, and is now being so prosecuted, by a corporation operating as a collection agency, or by attorneys engaged or recommended by such corporation." The judge denied the motion and certain requests for rulings made by the defendant. A report to the Appellate Division was dismissed and the defendant appealed to this court. Since, apart from the motion, the case, according to the record, was ripe for judgment, the motion was in effect a motion to stay the entry of judgment. Even if we assume that the report means that all the evidence therein recited favorable to the defendant was admitted to be true, there was no error in denying the motion. While in certain particulars the situation presented by the motion is somewhat different from the situations before this court in 296 Mass. 215, and in 310 Mass. 825, the present situation is governed by the principles there stated. The finding for the plaintiff must stand in accordance with the decision in 296 Mass. 215. This decision is not in conflict with Gill v. Richmond Co-operative Association, Inc. 309 Mass. 73, 75. Even if the case can be said to

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be being now prosecuted in behalf of the plaintiff by an unauthorized attorney, the only such prosecution now being carried on is opposition to the present motion. No further prosecution by the plaintiff is necessary, for the case, apart from the present motion, is ripe for the entry of judgment as of course under G. L. (Ter. Ed.) c. 235, Section 2. Rule 36 of the District Court (1940). Obviously unauthorized opposition to a motion to stay the entry of such a judgment is not a sufficient ground for granting the motion. The denial of the motion was right, irrespective of the rulings requested by the defendant, and it is unnecessary to consider them.