(144 N.E.) In re COMMISSIONER OF BANKS (in Pos- 1. Appeal and error 694(1) Findings of fact by single justice accepted as true, no evidence being reported. Findings of fact by single justice must be accepted as true where no evidence is reported. 2. Appeal and error 907 (2)—Presumed that evidence introduced supported conclusion of single justice. If any evidence could have been introduced which in law would support conclusion reached by single justice, it must be presumed that there was such evidence and that orders for decrees rest upon it, no evidence being reported. 3. Banks and banking 314-Of no interest to directors sued for malfeasance that commissioner of banks accepts settlement from other directors. the defendants are liable for losses to the Directors sued for malfeasance have no interest and cannot complain of settlement between commissioner of banks and other directors sued for malfeasance, and they cannot compel those making peace to remain parties merely in order to make them contribute to ex-tural. penses of litigation. 4. Courts 101-Single justice had power to order decrees for commissioner of banks petitioning for settlement of litigation. Single justice had power under G. L. c. 167, § 24, to order decrees for commissioner of banks petitioning for approval of settlement of suits against directors of trust company. The petition with respect to Magrane sets out that he is one of the defendants in the suit described in 242 Mass. 95, 136 N. E. 403; that suit is pending against him to enforce his liability as the holder of 100 shares of the capital stock of the trust company, and that there is an action pending against him to collect a note for $10,500 with interest; that Magrane disputes liability on all these Report from Supreme Judicial Court, Suf- claims and has offered to pay to the commisfolk County. Petitions by the Commissioner of Banks, in possession of the Cosmopolitan Trust Company, in respect to Patrick B., Magrane and Patrick F. O'Keefe, respectively, for settlement of claims. On report. tered ås prayed for. sioner sums aggregating $150,000 upon the same general conditions as to covenants not to sue and surrender of note as are alleged in the O'Keefe petition. There are similar affidavits as to the advantage to the trust company of a settlement upon these terms, but there is no affidavit that the amount ofoffered is all the debtor possesses. Decrees en F. N. Nay, of Boston (G. L. Vaughn, Melrose, of counsel), for petitioner. F. M. Carroll, of Boston, for respondent The statements of fact in each petition have been found to be true by the single justice. There is also a finding that Magrane is a man "well along in years, and should he die, pending the final determinaton of the several suits, long further delays in the matter of obtaining decrees and judgments are likely to occur and the difficulties of collection of such decrees and judgments, when entered, will be correspondingly increased." It further is found that Magrane has available property in excess of $150,000 but there is no finding as to the amount of such excess. RUGG, C. J. These are two petitions in equity by the commissioner of banks in possession of the Cosmopolitan Trust Company. The single justice was of opinion that the The petition with respect to O'Keefe sets out petitions ought to be granted and decrees (1) the pendency against him and numerous entered authorizing and empowering the other defendants of a suit wherein the com- commissioner of banks, upon payment to him missioner of banks seeks to hold the defend- of the several sums, to take all necessary ants for a large amount on allegations that steps to cause the equity suits to be disFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes missed without prejudice against these two, cases. If any one of the directors, made dedefendants, to execute the covenants not to fendant in that suit, prefers to buy his peace sue and to deliver up the notes. upon terms which a justice of this court No direct parties to this suit object to finds just and reasonable, from the point of the allowance of the petition. Four code-view of the depositors in the trust company, fendants in the suit reported in 242 Mass. there is nothing in his legal relation to the 95, 136 N. E. 403, appeared in opposition be- other defendants which enables them to infore the single justice and at their request terpose an effective objection. As has been the cases were reported. said in numerous decisons, the object of our [1, 2] The findings of fact made by the sin- law as to closed trust companies is to reach gle justice must be accepted as true. No ev- a distribution of the assets among the crediidence is reported. The order that the pe- tors as soon as is reasonably practicable. No titions ought to be granted imports a finding one or all of the defendant directors who of all subsidiary facts necessary to war- prefer to litigate the claims of this nature rant the decrees. If any evidence could have against them can compel those who desire been introduced which in law would support to adjust upon terms found to be advanthe conclusion reached, it must be presumed tageous to the public interest the claims that there was such evidence and that the against them, to remain parties to the litigaorders for decrees rest upon it. The only tion merely in order to make them contribute question is whether these orders for decrees to the expenses thereof. The case at bar is could have been entered on the allegations distinguishable from Nickerson v. Wheeler, of the bill and the facts found. First Bap-118 Mass. 295, where the liability imposed tist Society in Brookfield v. Dexter, 193 Mass. on directors was strictly statutory and of a 187, 189, 79 N. E. 342; Hale v. Blanchard, nature permitting enforcement of contribu242 Mass. 262, 264, 136 N. E. 102; Nelson tion from his fellow directors by one comv. Wentworth, 243 Mass. 377, 378, 137 N. E. pelled to pay. 646. [3] The claims of the commissioner of banks, so far as they relate to collection of notes and the enforcement of stockholders' liability, are of no interest to the opponents of the orders for decrees. The issue is confined wholly to the suit to enforce liability of directors of the trust company for breaches of duty as directors in the many particulars wherein they are alleged in the bill in 242 Mass. 95, 136 N. E. 403, to have violated that duty. [4] The single justice had power under G. L. c. 167, § 24, to order the decrees for the petitioner. His opinion in each case that the petitions should be granted and decrees entered as prayed for was right. Decrees accordingly. O'CALLAGHAN v. BOSTON ELEVATED (Supreme Judicial Court of Massachusetts. Street railroads 98 (8)-Pedestrian crossing street without looking, guilty of contributory negligence. Person who walked across street without looking to see electric car, in full view, was guilty of contributory negligence, and there G. L. c. 231, § 85. can be no recovery for death, notwithstanding Exceptions from Superior Court, Middlesex County; Elias B. Bishop, Judge. It is manifest from the discussion in 242 Mass. 95, 136 N. E. 403, that the extent of the liability of the several directors for malfeasance, or nonfeasance, must ultimately be established upon the conduct of each director as revealed by the facts to be ascertained upon a trial. The allegations of the bill in that suit show loans by the trust company upon votes of the directors to individual borrowers in excess of the statutory limit, loans made while the reserves were less than the statutory requirement, loans from the savings department in violation of law, loans to persons without credit or business réputation, and loans otherwise in violation of settled principles of banking. There are further allegations of reckless and negligent conduct in the management of the affairs of the trust company and of liability arising from violation of the fiduciary duty owed to the trust company by the defendants as directors. There is nothing in the naD. H. Fulton, of Boston, for plaintiff. J. P. Carr, of Boston, for defendant. ture of the liability of the defendants in the suit referred to in 242 Mass. 95, 136 N. E. CARROLL, J. This action is to recover 403, or in the character of the relationship for the death of the plaintiff's intestate, who between the several directors which prevents was killed about 9 o'clock in the morning on the entry of decrees for the petitioner in these | February 27, 1921, by reason of being struck For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Action of tort by Denis O'Callaghan, administrator of the estate of May Canavan, deceased, against the Boston Elevated Railway Company to recover for death of intesVerdict was tate struck by an electric car. ordered for defendant, and plaintiff brings exceptions. Exceptions overruled. (144 N.E.) not excused by being put in position of sudden peril. It is no answer to charge of contributory negligence that one deliberately and negligently placing himself in great danger was put in a position of sudden peril. 3. Evidence 591-Party bound by own testimony. A party is bound by his own testimony. Exceptions from Superior Court, Suffolk County; Philip J. O'Connell, Judge. Action of tort by Patrick Fitzpatrick against the Boston Elevated Railway Company, for injuries sustained by reason of collision with defendant street car. Verdict for plaintiff, and defendant brings exceptions. Exceptions sustained, and judgment ordered entered for defendant. by an electric car operated by the defendant | 2. Negligence 67 - Contributory negligence on Beacon street, Somerville. A witness called by the plaintiff, who "saw about all there was of the occurrence," testified he was standing on Beacon street waiting for an inbound car and saw the plaintiff's intestate "coming out of Kent street" and continuing across Beacon street; that when she stepped from the curb to cross Beacon street the electric car was about 200 feet distant; that when it struck the intestate it was moving on Beacon street at the rate of 25 miles an hour, and went about 200 feet after it struck her. The witness stated he was "watching the girl (the plaintiff's intestate) the instant she stepped down off the sidewalk" and until she was struck, but did not see her look toward the approaching car and so far as he knew she "was looking straight ahead." There was evidence that no bell was sounded. From the undisputed facts shown in this case it appears that the plaintiff's intestate walked across the street when the approaching car was in full view, without looking and without taking any precautions for her safety. The evidence of the plaintiff's witness shows that the intestate was not in the exercise of due care. G. L. c. 231, § 85, does not help the plaintiff. The case is governed by Duggan v. Bay State Street Railway, 230 Mass. 370, 119 N. E. 757, L. R. A. 1918, 680; Pigeon v. Massachusetts Northeastern Street Railway, 230 Mass. 392, 119 N. E. 762; Sullivan v. Chadwick, 236 Mass. 130, 137, 127 N. E. 632; Will v. Boston Elevated Railway (Mass.) 142 N. E. 44. F. J. Daggett and J. T. Cassidy, both of Boston, for plaintiff. George Hoague, of Boston, for defendant. CROSBY, J. The plaintiff testified that he walked up the left side of A street to Broadway intending to take a car going toward City Point, the regular stopping place of which was at a white pole about opposite the junction of the two streets; that as he got to the curbing on Broadway he saw a car coming from City Point and about 300 feet or more away from him; that he looked in the opposite direction and saw a car coming towards City Point between 100 and 150 feet away; that he then started to walk across; that when he reached the inbound track he looked again and saw the car coming from City Point about 200 feet away; that he crossed the inbound track, and by that time the front end of the outbound car was op Bagnell V. Boston Elevated Railway (Mass.) 142 N. E. 63; Doyle v. Boston Elevated Railway (Mass.) 142 N. E. 693; Conroy v. Maxwell (Mass.) 142 N. E. 809; and Barrett v. Boston Elevated Railway (Mass.) 138 N. E. 543, are distinguishable from the case at bar. The judge was right in direct-posite him, moving slowly, and he waited for ing a verdict for the defendant. Exceptions overruled. it to pass; that he thought it was going to stop at the post; that he heard a noise and turning around saw the other car within 20 feet of him and coming fast; that as soon as he saw it was so close to him, he started to run around the rear of the car going to City Point to save himself; that he "got just FITZPATRICK v. BOSTON ELEVATED RY. about the steps" and was caught between the CO. (Supreme Judicial Court of Masachusetts. Suffolk. May 21, 1924.) 1. Carriers 327-Intending passenger struck by car held guilty of contributory negligence. Intending passenger seeing street car 300 feet away, and walking across street, without again looking until too late, to take a street car coming from other direction about 200 feet away, which slowed up in front of him and prevented his getting out of way of first car, which was speeding in violation of City of Boston Ordinances, c. 40, § 5, was guilty of contributory negligence as matter of law. two cars and was thrown down. He testified in cross-examination that after seeing the car coming from City Point when it was about 200 feet away he did not see it again and did not look for it until it was about 20 feet from him; that he could have seen it at any time; that there were no automobiles in front of it and no vehicles around there that obstructed his view; that from the time he got up to the first track until he was struck he did not stop walking except for a second when he saw this car so near him; that when he was stepping across the first track the front of the City Point car was about in the center of A street; that he wait For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [1, 2] It is obvious that the only reasonable inference that can be drawn from the evidence most favorable to the plaintiff is that his lack of due care contributed to his injury. It appears from the undisputed evidence that, from the time he started to cross the street to go to the white post on the opposite side, he had an unobstructed view of the tracks; that there were no vehicles or anything else to distract or require his attention. These two cars coming toward him were in plain sight from the time he started to cross until he was struck. He testified that he saw them both, the one coming from City Point first when it was about 300 feet away and again when about 200 feet from him, and again just before he was caught between it and the car going in the opposite direction. As counsel for the plaintiff argues, he was not negligent because he did not look oftener for the approaching cars; his lack of due care arises because, seeing them, he took no precautions for his safety until it was too late. If, as appears, he deliberately and negligently placed himself in great danger, it is no answer to a charge of carelessness that he was put in a position of sudden peril. As was said in Rundgren v. Boston & Northern Street Railway, 201 Mass. 156, 87 N. E. 189: ed for it to pass; that as it was moving he | from the opposite direction was in plain started to run around the rear of it in the sight and he must have known that it was space between the two tracks; that he ran about to pass at that place. Although it not quite the length of the car. There was could have been found that the inbound car evidence that the car from City Point was was running at a rate of 25 miles an hour in going at a speed of about 25 miles an hour, violation of the ordinances, that circumin violation of chapter 40, § 65 of the revised stance has no bearing upon the conduct of ordinances of the city of Boston, which were the plaintiff; it does not appear that its in force at the time of the accident. speed had changed from the time it was first seen by him, nor that he paid any attention to it after he saw it 200 feet away until it was too late to escape from the perilous position he had placed himself in. The evidence shows that with full knowledge that the cars were approaching from opposite directions, he walked leisurely across the street without taking any precaution for his safety when he might have escaped injury either. by quickening his pace or waiting for the cars to pass. It is manifest that upon his own testimony, by which he is bound, the accident was the result of his lack of due care. The case cannot be distinguished in principle from Holian v. Boston Elevated Railway, 194 Mass. 74, 80 N. E. 1, 11 L. R. A. (N. S.) 166; Fitzgerald v. Boston Elevated Railway, 194 Mass. 242, 80 N. E. 224; Casey v. Boston Elevated Railway, 197 Mass. 440, 83 N. E 867; Rundgren v. Boston & Northern Street Railway, supra; Kennedy v. Worcester Consolidated Street Railway, 210 Mass. 132, 96 N. E. 78; Stone v. Boston Elevated Railway, 211 Mass. 365, 97 N. E. 747; Adams v. Boston Elevated Railway, 219 Mass. 515, 107 N. E. 360; Will v. Boston Elevated Railway, 247 Mass. 142 N. E. 44, and cases cited; O'Callaghan v. Boston Elevated Railway, 248 Mass. —, 144 N. E. 74. It is distinguishable from the following cases relied on by the plaintiff: Creamer v. West End Street Railway, 156 Mass. 320, 31 N. E 391, 16 L. R. A. 490, 32 Am. St. Rep. 456; Kelly v. Wakefield & Stoneham Street Railway, 175 Mass. 331, 56 N. E. 285; Hurley v. West End Street Railway, 180 Mass. 370, 62 N. E. 263; Hennessey v. Taylor, 189 Mass. 583, 76 N. E. 224, 3 L. R. A. (N. S.) 345, 4 Ann. Cas. 396; Hatch v. Boston & Northern Street Railway, 205 Mass. 410, 91 N. E. 523; Salisbury v. Boston Elevated Railway, 239 Mass. 430, 132 N. E. 239. "A plaintiff cannot invoke the doctrine of sudden peril to extricatè himself from the position into which he has come through his own negligence." The case is plainly distinguishable from Lemay v. Springfield Street Railway, 210 Mass. 63, 96 N. E. 79, 37 L. R. A. (N. S.) 43. While he might rely somewhat upon the belief that neither motorman would negligently operate his car and thereby injure him, he was not justified in abandoning all care for his safety. [3] His expectation that the car going toward City Point would stop at the white post did not justify him in attempting to cross the track at a time when the car coming | As the defendant's motion for the direction of a verdict in its favor should have been granted, the exceptions must be sustained, and judgment is to be entered for the defendant under G. L. c. 231, § 122. So ordered. (144 N.E.) RUGG, C. J. This is a complaint for the BINGHAM et al. v. LONG, Commissioner of abatement of an income tax. The testator, Corporations and Taxation. (Supreme Judicial Court of Massachusetts. Suffolk. May 23, 1924.) I. Taxation 3632-Basis for ascertaining gain or loss for income tax purposes on sale of property by executor. In case of sale by executors of intangible property owned by testator at his death, basis for ascertaining gain or loss for income tax purposes under G. L. c. 62, § 5, is value of property at time of death of testator. of whose will the complainants are executors, died on February 27, 1921. After their appointment as executors and during 1921 the complainants sold intangible personal property of the estate of the testator at a considerable advance over its cost to the testator, who acquired it subsequent to January 1, 1916, but at a price less than its fair market value on the date of the death of the testator or at the time of the qualification of his executors. An income tax was levied on the difference between the cost to the 2. Taxation 104 What constitutes "in- testator and the amount realized from the come." sale by the executors. The word "income" as used in G. L. c. 62, § 5, includes true increase in amount of wealth which comes to a person in a stated period of time, and imports actual gain. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Income.] 3. Taxation 104-"Income" does not comprehend increase in value of capital investment. [1] The question for decision is whether, in case of a sale by executors, during the settlement of the estate, of intangible property owned by the testator at his death, the basis for ascertaining whether there has been a gain or a loss for income tax purposes is the value of such property at the time of the death of the testator or its value at the time of its acquisition by him. The relevant statutes are in G. L. c. 62, as follows: "Income" within G. L. c. 62, § 5, does not comprehend increase in value in capital investment discernible only by estimation, and not otherwise, but simply an increase in value real-received by any inhabitant of the commonwealth "Section 5. Income of the following classes ized by sales or conversion of capital assets. 4. Taxation 20-Whether income tax shall be levied depends upon residence of beneficiary. Although income tax under G. L. c. 62, § 9, is exacted from executor or administrator, person upon whom burden of tax finally rests is beneficiary, and right to levy of tax depends on residence of beneficiary. 5. Taxation 20-Mere fact that decedent was within commonwealth does not render personal estate outside commonwealth subject to tax. Mere fact that residence of decedent was within commonwealth does not under general principles of law render his personal estate subject to taxation within commonwealth, where such estate is not actually within the commonwealth, and executor or administrator who is its owner is a nonresident. 6. Statutes 245-Tax laws strictly construed against taxing power. Tax laws are to be strictly construed against taxing power, and if right to tax is not plain it is not to be implied. Report from Superior Court, Suffolk County; William Cushing Wait, Judge. Complaint by Norman W. Bingham, Jr., and others, as executors under the will of King Upton, deceased, against Henry F. Long, Commissioner of Corporations and Taxation, for abatement of income tax. On report. Tax paid ordered repaid. during the preceding calendar year shall be taxed as follows: "Section 9. The estates of deceased persons who last dwelt in the commonwealth shall be subject to the taxes imposed by this. chapter upon all income received by such persons during their lifetime, if assessed within the time limited by section thirty-seven, except income taxincome received by the estates of such deceased able under subsection (b) of section five. The persons shall be subject to all the taxes imposed by this chapter to the extent that the persons to whom such income is payable, or for whose benefit it is accumulated, are inhabitants of the commonwealth. * * * "9 [2, 3] The word "income" as used in these sections may be said to include the true increase in amount of wealth which comes to imports an actual gain. It is based on the a person during a stated period of time. It practical conception that additional property has come to the taxpayer out of which some contribution is exacted and can be N. W. Bingham, Jr., of Boston, for com- paid for the support of government. Income plainants. A. Lincoln, Asst. Atty. Gen., for respondent. indicates increase of wealth in hand out of which money may be taken to satisfy the en For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |