Paszkowski v. Stony Brook Paper Co.

96 N.E. 129, 210 Mass. 86, 1911 Mass. LEXIS 1006

• Court: Massachusetts Supreme Judicial Court
• Decided: October 17, 1911
• Status: Published

Opinion

Braley, J.

The plaintiff concedes, that an action for personal injuries resulting from a defective condition of the premises which “ is caused by or consists in part of snow or ice ” cannot be maintained at common law since the St. of 1908, c. 305, unless within ten days after the injury, notice of the time, place and cause is given to the persons or corporations responsible therefor. Baird v. Baptist Society, 208 Mass. 29. O’Donoughue v. Moors, 208 Mass. 473. But having relied only on the third count of the declaration, which states a case under St. 1909, c. 514, § 127, governing under certain conditions the defendant’s liability as an employer, he contends that the earlier statute is inapplicable. The St. of 1908, c. 305, while broad and comprehensive, does not in terms purport to be an amendment of existing statutes, yet, as was said in Baird v. Baptist Society, 208 Mass. 29, “ it must be held that its scope is not limited to defects in ways, public or private, for which a person or corporation may be answerable at common law, but extends to any defect upon the premises whether or not it be in a way.” It was enacted when B. L. c. 106, §§ 70-75 were in force, which subsequently were codified with other laws, “relating to labor” by the St. of 1909, c. 514, §§ 127-132. The Legislature when it passed the statute in question must be presumed to have known, of the provisions of the employers’ liability act subjecting the employer, if notice was given within sixty -days under § 75 of R. L. c. 106, to an action for damages for injuries caused to employees by defective ways, works and machinery, which of course would include the premises used in the business. It also had been decided, that, if the premises became unsafe from accumulated snow and ice, there was evidence for the jury under the statute of the defendant’s negligence, and that, if the plaintiff’s due care and the defendant’s negligence were proved, he could have prevailed at common law, and resort to the statutory remedy did not enlarge the cause of action. Ryalls v. Mechanics' Mills, 150 Mass. 190. Urquhart v. Smith & Anthony Stove Co. 192 Mass. 257. It having been deemed expedient as the law stood to provide that the notice required by St. of 1908, c. 305, should be a condition precedent to recovery where the injury was caused in the manner described, no distinction was made as to the class of persons who might be affected, and § 75 having been modified accordingly, the defendant’s liability to an action for damages depended upon compliance with the requirement, and not upon the form of procedure by which it could be enforced. By the St. of 1909, c. 514, § 145, § 75 is repealed, but as § 132 of the codifying statute embodies in substance the provisions of § 75 it should be construed as a continuation rather than as a repeal and reenactment of the previous law. It is so declared by § 146, and this must have been the construction independently of the provision. Wright v. Oakley, 5 Met. 400, 406. United Hebrew Benevolent Association v. Benshimol, 130 Mass. 325, 327. Bear Lake Irrigation Co. v. Garland, 164 U. S. 1, 12.

The plaintiff presses the argument, that by the omission in the general act of Ml reference to the St. of 1908, c. 305, the legislative intention was to supersede it, where the person injured was an employee of the owner of the premises. But the statute not having been irreconcilable with existing laws before codification, it did not become repugnant when those laws were codified by the re-enactment of substantially similar provisions. Bear Lake Irrigation Co. v. Garland, 164 U. S. 1, 12. Copeland v. Springfield, 166 Mass. 498, 504, and cases cited.

The plaintiff having failed to bring himself within the condition, the action cannot be maintained, and the other questions raised are immaterial.

Exceptions overruled.