(144 N.E.)

133 N. E. 90, it was decided that an officer appointed by the selectmen and "removable by them when the public interest requires" could legally be removed without notice or hearing. It was determined in Bailen Assessors of Chelsea, 241 Mass. 411, 135 N. E. 877, that power vested in the board of aldermen of a city to "remove" an assessor might be exercised by simple vote without a notice or hearing. Power to "remove" conferred by the Constitution was said in Com. v. Harriman, 134 Mass. 314, not to require notice and hearing. To the same general effect are Eckloff v. District of Columbia, 135 U. S. 240, 241, 10 Sup. Ct. 752, 34 L. Ed. 120; Townsend v. Kurtz, 83 Md. 331, 34 Atl. 1123; People v. Fire Commissioners, 73 N. Y. 437; Kimball v. Olmsted, 20 Wash. 629, 56 Pac. 377; State v. Somers, 35 Neb. 322, 53 N. W. 146; Sweeney v. Stevens, 46 N. J. Law, 344.

"I am obliged to regard them (the other members of the board) as incapable, on March 17, 1919, of impartial judicial consideration of accusations against him, especially of accusadertaken any such consideration." tions framed by themselves, had they ever un

"I do not find, however, that their preparation and adoption of the resolution to dismiss him was wholly induced by feeling against him of the above character. I find that the controlling motive which induced its adoption by the defendants who voted for it was the desire on their part to remove the obstacle presented by the plaintiff's presence on the board to their attempts to arrange a compromise with the trustees; though they acted the more readily under said controlling motive by reason of their willingness to disassociate themselves from a colleague with whom they could not agree and whom they did not like. Except to the above extent, I am unable to find that their action was not in good faith."

These findings do not warrant interference by the court. The board of directors acting by majority vote constitute the tribunal authorized under this particular ecclesiastical polity to dismiss a director. No other can be substituted for it. Whatever may be their infirmities they still are the persons clothed with power. The adequacy of the grounds on which such vote rests is not open to inquiry in a judicial proceeding provided they are actuated by good faith.

This principle governs respecting the power created and authority conferred by article I, § 5, of the Church Manual. It apparently was thought by its framer or framers that the ultimate welfare of the church required definite responsibility to rest somewhere and that it was better to have it plainly vested in a small body. Where the controlling statute or rule, rightly construed, does not require a notice and hearing, then the frequently expressed idea that natural justice demands notice and hearing has no room for The "controlling motive" was found by operation. Cases like Gray v. Christian So- the master to be a desire to eliminate the ciety, 137 Mass. 329, 331, 50 Am. Rep. 310, obstacle presented by the plaintiff's presence are not pertinent or controlling. Burgess v. to the attempts of the other members of the Mayor & Aldermen of Brockton, 235 Mass. board of directors to compose the trouble 95, 100, 126 N. E. 456. The distinction is which was litigated in Eustace v. Dickey, between an executive or administrative re- 240 Mass. 55, 132 N. E. 852. In view of the moval where the exercise of the power is general favor of the law toward the comabsolute, on the one side, and a removal promise of litigation this hardly can be founded on the determination of questions pronounced anything other than a just moJudicial in character where the mandates of natural justice must be, obeyed, on the other side. If the removal does not depend upon the decision of judicial or quasi Judicial questions, but only upon administrative or executive determination, then there is no occasion to comply with judicial forms. Where there is an express requirement that there can be removal only "for cause," there is implied ascertainment of definite facts and a hearing is required. Ham v. Boston Board of Police, 142 Mass. 90, 7 N. E. 540. Decisions of that class are distinguishable

tive.

It is unneccessary to discuss any other questions. The grounds already considered are decisive of the case.

[15] The rule to the master in the case at bar required him "to hear the parties and their evidence, to find the facts and report the same to the court." All exceptions to the master's report so far as they concern questions of fact are overruled. No evidence is reported. Glover v. Waltham Laundry Co., 235 Mass. 330, 334, 127 N. E. 420. The exceptions so far as they relate to rulings of law need not be considered as such because rulings of law were not within the requirement of the rule to the master. New England Foundation Co. v. Reed, 209 Mass. 556, 562, 95 N. E. 935. Bradley v. Borden, 223 Mass. 575, 586, 112 N. E. 416. In some essentials those rulings of law are contrary to the principles here determined. Decrees

are to be entered confirming the master's re-
port as to matters of fact but not as to rul-
ings of law, and dismissing the bill.
Ordered accordingly.

NORTHERN INDUSTRIAL CHEMICAL CO. v. DAVIS, Agent.*

(Supreme Judicial Court of Massachusetts. Suffolk. May 23, 1924.)

19. Carriers 185(2)-Testimony as to practice of using metal containers for shipment of oil properly excluded.

In action against terminal carrier for loss of castor oil shipped in 1918 in wooden barrels, court properly excluded evidence that in 1923 practice was to use metal containers, and

I.'Carriers 132-Burden on carrier to show that they were considered better than wood. cause of loss.

Where castor oil in proper barrels was properly loaded, and leaked in transit, burden was on carrier to show cause of loss was something for which it was not responsible. 2. Evidence 588–Jury not bound to accept testimony.

In action against carrier for loss of castor oil in shipment, jury could reject or accept testimony for defendant that oil leakage was observed at certain points.

10. Carriers 57-Purchaser of bill of lading entitled to rely on recital that shipment in good order.

Purchaser of negotiable bill of lading had right to rely on recital therein that shipment was received "in apparent good order."

Exceptions from Superior Court, Suffolk County; R. F. Raymond, Judge.

Action of contract by the Northern In3. Carriers 177(4)-Connecting carrier ac-dustrial Chemical Company against Walker cepting waybill indicating leaks of castor oil D. Hines, Director General of Railroads, for should take precautions to prevent further whom James C. Davis was substituted as loss. party defendant, to recover damages to shipment of castor oil. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled.

Employés of railroad, after being notified of leaks of castor oil by notations on waybill, and accepting shipment from preceding carrier, should have taken all necessary precautions to prevent further leakage.

4. Carriers 187-Whether loss of castor oil on defendant's line held for Jury.

In action for loss of castor oil during shipment against terminal carrier, whether loss occurred on defendant's line held for jury. 5. Stipulations 14(11)-Agreement of counsel that verdict should be certain amount rendered it unnecessary to determine amount of leakage on defendant carrier's line.

Agreement of counsel what amount of verdict should be, if plaintiff recovered, rendered it unnecessary to determine what amount of leakage occurred on connecting lines in action against terminal carrier for loss of castor oil. 6. Evidence 518-"Clean bill of lading" and "exceptions" technical expressions as which expert could testify.

to

Words, "clean bill of lading," being technical expression of trade, it was not error to admit testimony of experts to interpret phrase, and same is true as to absence of "exceptions" in bill of lading.

7. Appeal and error

1170(7)-Witnesses 257-Affidavit of witness testifying held improperly admitted but not prejudicial.

Where witness stated he had no present recollection of facts stated in affidavit, but that when he made statements they were true, and later on looking at affidavits he stated as fact matter therein stated, affidavit itself was not admissible, but its admission did not affect substantial rights of parties, testimony and affidavit being only cumulative, under G. L. c. 231, § 132.

8. Carriers 177(4)-Terminal carrier accepting shipment assumes obligations of car

rier.

Terminal carrier was free to refuse leaky shipment of castor oil, if not satisfied with condition of lading, and, having accepted it and issued clean bill of lading, it assumed usual obligations of carrier.

*Certiorari denied 45 Sup. Ct. 97, 69 L. Ed.

L. B. King, of Boston, for plaintiff.
A. W. Blackman, of Boston, for defendant.

DE COURCY, J. The plaintiff, purchaser of a carload of castor oil, brought this action to recover damages to the shipment while it was in transit from Seattle, Washington, to West Barrington, Rhode Island, where it arrived on September 16, 1918, in a leaky

The

condition. The declaration is in three counts,
for one and the same cause of action.
first is against the Director General, based
on his operation of the New York, New
Haven & Hartford Railroad, the terminal
carrier. The second and third in substance
are against the United States Railroad Ad-
ministration on the theory that there was
but a single common carrier from the ship-
ping point to the place of delivery. The jury
returned a verdict for the plaintiff on the
first count in the sum of $3,380, and in the
same amount on counts 2 and 3. The de-
fendant's exceptions are to the refusal of the
court to direct verdicts in its favor, and to
give certain requested rulings; to the ad-
mission and exclusion of testimony; and to
certain portions of the charge.

1. The separate verdict for the plaintiff on
the first count, especially in view of the in-
structions of the court, fixes the injury as
occurring on the New York, New Haven &
Hartford, the terminal road. Accordingly
the question of directing a verdict on counts
2 and 3 has become moot; and it is unneces-·
sary to consider whether the federal control
resulted in merging the several railroad
systems into a single common carrier unit,
or whether they were operated as separate
and distinct entities. And see Director Gen-
eral v. Donovan, 265 U. S. 257, 44 Sup. Ct.
513, 68 L. Ed.

(144 N.E.)

As to the first count: There was evidence, were given, and the last seven are expressly from which it could be found that the one waived. The others are not specifically hundred barrels, in which the oil was sent, were proper containers for oil shipments; that the barrels when loaded were in fit condition, were properly dunnaged or braced in the car, and passed upon by the checker of the railroad company; and that a "clean bill of lading" was issued, reciting that the goods were in "apparent good order." On arrival at West Barrington, according to the evidence, two of the barrels had broken heads and seven were in pieces "with the staves busted"-these nine barrels being empty; the dunnage, or bracing and wooden supports, was broken down; and there was oil on and underneath the car. There was affirmative evidence, in addition to the presumption, that the serious harm occurred on the lines of the terminal carrier. Moore v. New York, New Haven & Hartford Railroad, 173 Mass. 335, 53 N. E. 816, 73 Am. St. Rep. 298; Cote v. New York, New Haven & Hartford Railroad, 182 Mass. 290, 65 N. E. 400, 94 Am. St. Rep. 656; Bullock v. Haverhill & Boston Dispatch Co., 187 Mass. 91, 72 N. E. 256; Shapiro v. Boston & Maine Railroad, 213 Mass. 70, 99 N. E. 459, Ann. Cas. 1913E, 1028.

[1-4] The burden was on the defendant to show that the cause of the loss was something for which he was not responsible. Hastings v. Pepper, 11 Pick. 41; L. L. Cohen & Co., Inc., v. Director General of Railroads (Mass.) 142 N. E. 75. He did offer testimony tending to show that some oil leakage was observed at Spaulding, Illinois, East Buffalo, New York and West Springfield, Massachusetts. But under the established rule of Lindenbaum v. New York, New Haven & Hartford Railroad, 197 Mass. 314, 84 N. E. 129, the jury could reject or accept that testimony. Even if they believed it in whole or in part, the employees on the New Haven road, after being notified of the leaks by the notations on the way bill, accepted the shipment from the preceding carrier, and should have taken all necessary precautions to prevent further damage from there on. In short, as the plaintiff had established the common law presumption against the terminal carrier, and the burden was on the defendant to show facts that would relieve him from liability, on this record there was no error in the refusal of the trial judge to direct a verdict for the defendant on the first count. Hannibal Railroad v. Swift, 12 Wall. 262, 20 L. Ed. 423; Chicago & Northwestern Railway v. Whitnack Co., 258 U. S. 369, 42 Sup. Ct. 328, 66 L. Ed. 665; Atlantic Coast Line Railroad v. Rice, 169 Ala. 265, 52 South. 918, 29 L. R. A. (N. S.) 1214, Ann. Cas. 1912B, 389; Paramore v. Western Railroad, 53 Ga. 383; Wabash Railroad v. Priddy, 179 Ind. 483, 101 N. E. 724. [5] 2. Of the twenty-six rulings requested by the defendant, those numbered 5 and 6 144 N.E.-5

argued, so we treat the subject-matter thereof briefly. As regards the quantity of oil shipped at Seattle, there was not only the record of the certified weighers, Core & Herbert, but the bill of lading acknowledging the receipt of 45,770 pounds of castor oil; the cars were scaled before leaving Seattle to obtain the transcontinental weight; and the way bill indicates that the shipment was weighed by the carrier and found to be 46,380 pounds, or 610 pounds greater than the plaintiff claimed. There was ample evidence that wooden barrels were suitable containers for oil shipments, and that they were properly dunnaged. As to requests 8, 9, 10, 12 and 13, dealing with the loss on lines other than the New Haven, as already stated the burden was on the defendant to prove that the damage was one for which he was not responsible. And the agreement of counsel that the amount of the verdict should be $3,380, if the jury should find for the plaintiff, rendered it unnecessary to determine what amount of leakage occurred on the connecting lines. The same is true, in addition to other grounds, of request 16. An examination of all the requests discloses no reversible error in the failure to give them, so far as they were not given in substance in the charge.

[6-10] 3. There were numerous exceptions to evidence. We treat only those argued by the defendant, and not hereinbefore considered. The words "clean bill of lading," being a technical expression of the trade, it was not error to admit the testimony of experts to interpret the phrase. The same is true as to the absence of "exceptions" in the bill of lading. The witness Davis, dock foreman at Seattle, had made an affi davit at the time of the shipment, that he found the barrels in first-class condition when loaded, and also properly dunnaged. Although he had no present recollection of these facts as stated in the affidavit, he tes tified that when he made the statements they were true. Later on looking at the affidavit he stated as a fact that the barrels were properly dunnaged. It seems to us that the affidavit itself was not admissible, although the testimony of the witness, that the statements therein as to the dunnage were truthfully made when his recollection was fresh, seems to come within cases like Cumberland Glass Manuf. Co. v. Atteaux, 199 Mass. 426, 85 N. E. 536, and Gurley v. Springfield Street Railway, 206 Mass. 534, 92 N. E. 714. In any event, the testimony and affidavit were only cumulative evidence. The carrier was free to refuse this shipment if not satisfied with the condition of the lading; and having accepted it, and issued a clean bill of lading, it assumed the usual obligations of a carrier. L. L. Cohen, Inc., v. Director General. of Railroads, supra. In other words, even as

RUGG, C. J. This is an action of contract. It was brought originally in our superior court. It comes before us on appeal from an order of that court accepting the defendant's petition and bond for removal of the cause from that court to the District Court

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(144 N.Ę.)

of the United States for the District of Mas-1 34 Sup. Ct. 278, 58 L. Ed. 544. Whether a sachusetts. It is rightly before us. Long cause for removal is made out on the face of v. Quinn Bros., 215 Mass. 85, 86, 102 N. E. the record is a question of law which must 348; Samuel v. Page-Storms Drop Forge Co., be decided by the state court subject to re243 Mass. 133, 134, 137 N. E. 169. No ques- view by the Supreme Court of the United tion is raised as to the form or seasonableness States. Eaton v. Walker, 244 Mass. 23, 27, of the petition for removal, the sufficiency of 138 N. E. 798, and cases there collected. It the bond, or the jurisdictional amount in- follows as an inevitable corollary' to this volved. proposition that the allegations of law inserted in a petition for removal are not accepted as sound or binding. So far as material they must be critically examined and stand or fall on their own merits.