pay $400. From this the plaintiffs appealed. It is manifest that the order for the payment of $400 as terms for the amendment of the bill was not in way of costs. The total costs taxed in the final decree amounted only to $175.32. We infer that the order was founded on the idea that the court had power to impose as terms for the allowance of the amendment the equivalent of something in way of counsel fees for the defendants. We are of opinion that it was beyond the power of the court to impose such terms on any principle of equity practice now prevalent in this commonwealth. [5] A nominal counsel fee is allowed as an item of taxable costs in civil causes. G. L. c. 261, § 23. Ordinarily no other attorney's fee is allowed. It is provided by G. L. c. 261, § 13, that in suits in equity "costs shall be wholly in the discretion of the court, but no greater amount shall be taxed therein than is allowed for similar charges in actions at law." "Taxable costs are in contemplation of law full indemnity for the expenses of a party who is successful in a suit between party and party, whether at law or in equity. Newton Rubber Works v. de las Casas, 182 Mass. 436." Rowland v. Maddock, 183 Mass. 360, 365, 67 N. E. 347, 349; McIntire v. Mower, 204 Mass. 233, 237, 90 N. E. 567. facts described in the statute is essential as, there was no compliance with the order to the basis for jurisdiction. The statute does not authorize, on the other hand, the correction of wrongs wholly executed and completed. It is not retroactive. It does not include within its words the redress of an evil that is past and gone. It does not afford the relief which is provided for minority stockholders in a business corporation to obtain for its benefit remedy for wrongs done to it by its officers. The principles illustrated by cases like Brewer v. Boston Theater, 104 Mass. 378, and Hayden v. Perfection Cooler Co., 227 Mass. 589, 116 N. E. 871, cannot be invoked under this statute with any due regard to its words. Of course, no surreptitious attempt to outwit the statute, as in Frost v. Belmont, 6 Allen, 152, can be tolerated, and under such circumstances relief would be afforded even though there had been a payment under the illegal vote. Russell v. Tate, 52 Ark. 541, 13 S. W. 130, 7 L. R. A. 180, 20 Am. St. Rep. 193, is a case similar to Frost v. Belmont. But nothing of that nature is set forth in the present bill. The acts of which complaint here is made must have been open and thoroughly known to everybody, because they are alleged by implication to have been the result of votes or action taken in six successive years in that most public of all governmental assemblies, the town meeting of a New England town. The case of Welch v. Emerson, 206 Mass. 129, 91 N. E. 1021, is no authority in support of the plaintiffs' contention. Continued future payments were there contemplated. Decisions like Webster v. Douglas County, 102 Wis. 181, 77 N. W. 885, 78 N. W. 451, 72 Am. St. Rep. 870, and Chippewa Bridge Co. v. Durand, 122 Wis. 85, 99 N. W. 603, 106 Am. St. Rep. 931, are distinguishable because rendered in a state where the subject is within general equity jurisdiction and is not controlled by statute. But it is doubtful whether even under that doctrine the present bill sets out ground for relief. See Frederick v. Douglas County, 96 Wis. 411, 71 N. W. 798, and First Wisconsin National Bank of Milwaukee v. Catawba, 183 Wis. 220, 197 N. W. 1013, 1018. It cannot be thought that the power to impose terms as a condition of allowing amendment of pleadings conferred in G. L. c. 231, § 5, authoizes the imposition of terms in excess of what could under any circumstances be included in taxable costs. If the rulemaking power of the courts under G. L. c. 213, § 3, second, extends to such a matter, the court has not yet exercised its power to that end. No rule of court expressly or by implication authorizes such terms as were here imposed. The allowance of counsel fees in excess of those included in taxable costs often has been made the subject of statutory regulation. The power to award counsel fees in contested will cases does not exist apart from express statute. G. L. c. 215, § 45; Brown v. Corey, 134 Mass. 249; Willard v. Lavender, 147 [3] It follows that the demurrers were sus- Mass. 15, 16 N. E. 582; Ensign v. Faxon, tained rightly! [4] The order sustaining the demurrers gave permission to the plaintiffs to amend their bill on or before a named date on condition that the amendment be accompanied by $400 imposed as terms to be divided equally between two attorneys for the benefit of the several defendants whom they respectively represented. From this order the plaintiffs appealed. The plaintiffs moved to amend their bill after the demurrers were sustained, but the amendment by direction of the judge was not received and was returned and a final decree was entered dismissing the bill with costs to each defendant, because 224 Mass. 145, 148, 112 N. E. 948. The allowance of counsel fees in divorce and separate maintenance proceedings is founded on express statute. G. L. c. 208, § 17; Id., c. 209, § 33; Churchill v. Churchill, 239 Mass. 443, 446, 132 N. E. 185. "Counsel fees" are allowed in the discretion of the court by G. L. c. 246, § 68, to persons summoned as trustees under trustee process. Reynolds v. Missouri, Kansas & Texas Railway, 224 Mass. 253, 112 N. E. 859. There is express provision for compensation for counsel of a guardian ad litem in suits in equity to quiet title to land. G. L. c. 240, § 9. Even the words, "costs and expenses," in a statute have sometimes (147 N.E.) ciple is of limited application and it rests on general principles of equitable jurisprudence, which have no relevancy to a case like the present. been held not broad enough to include coun- | mont, 6 Allen, 152, 164, 165. But this prinsel fees, although in other connections such fees have been held to be so included. See the exhaustive review of cases of that nature by Hammond, J., in Sears v. Nahant, 215 Mass. 234, 102 N. E. 491, Ann. Cas. 1914C, 1296; Haczela v. Krupa, 219 Mass. 261, 106 N. E. 1004. It is contended that the court has this power independently of the statutes. "It is the common practice, in bills for instructions by executors or trustees, and in other cases, where the suit is brought to solve difficulties created by some ambiguity or obscurity in a will or other instrument, to allow costs, taxed as between solicitor and client, to be paid out of the estate or fund which is the subject of controversy." Brown v. Corey, 134 Mass. 249, 251. On this principle costs as between solicitor and client have frequently been allowed out of a fund. Bigelow v. Morong, 103 Mass. 287, 290; Mandell v. Green, 108 Mass. 277, 283; Ricketson v. Merrill, 148 Mass. 76, 84, 19 N. E. 11; Davis v. Bay State League, 158 Mass. 434, 33 N. E. 591; Heard v. Read, 169 Mass. 216, 225, 47 N. E. 778; Cashman v. Bangs, 200 Mass. 498, 504, 86 N. E. 932; Shannon v. Shepard Manuf. Co., Inc., 230 Mass. 224, 236, 119 N. E. 768; Carlson v. Revere Beach County Fair & Musical Ry. Co., 227 Mass. 291, 116 N. E. 409; Guay v. Holland System Hull Co., 244 Mass. 240, 247, 138 N. E. 557. In Attorney General v. Old South Society in Boston, 13 Allen, 474, a fund for a strict public charity and another fund for religious uses had become intermingled in the lapse of many years and an information was instituted to separate them. It was held at page 497: "As the intermingling by the defendants of the fund of the charity with other funds has afforded ground for this information, and the information is sustained in part, the costs incurred in support of it, taxed as between counsel and client, are to be paid out of the charity fund; and the defendants will bear their own costs." Cases where amounts paid for counsel fees constitute an element of damage in actions against a defendant arising out of wrongful conduct, like Stiles v. Municipal Council of Lowell, 233 Mass. 174, 183, 184, 123 N. E. 615, 4 A. L. R. 1365, have no pertinency to this question. Costs of plans and reasonably necessary views may be allowed and taxed in fee bill. Stockbridge Iron Co. v. Cone Iron Works, 102 Mass. 80, 89, 90; Stewart v. Finkelstone, 206 Mass. 28, 38, 92 N. E. 37, 28 L. R. A. (N. S.) 634, 138 Am. St. Rep. 370. That principle, also, is remote from the case at bar. The result is that the order as to the payment of four hundred dollars as terms on which the bill might be amended was in excess of the power of the court. The decision in Manchester v. Hodge, 75 N. H. 502, 77 A. 76, at first sight seems opposed to this conclusion. As explained in Jacques v. Manchester Coal & Ice Co., 78 N. H. 248, 250, 100 A. 47, and in Barber v. Geo. R. Jones Shoe Co., 80 N. H. 507, 511, 517, 120 A. 80, we are of opinion that it is not in conflict with the result we have reached. [6] The disposition of the motion to amend the bill rested wholly in sound judicial discretion. One amended bill already had been allowed. The motion for further amendment might have been denied. Merchants' Bank of Newburyport v. Stevenson, 7 Allen, 489; Reno v. Cotter, 236 Mass. 556, 563, 129 N. E. 300. It might have been allowed upon severe terms as to costs. Drew v. Beard, 107 Mass. 64, 77. But it ought to be considered on its merits apart from consideration of the extraordinary terms imposed by the order. [7] The error in the interlocutory order requires a reversal of the final decree dismissing the bill. In that decree separate bills of costs were awarded to each of the several defendants. Whether separate costs or a single bill of costs be allowed rested in sound judicial discretion. G. L. c. 261, § 13. It has been customary to allow but a single bill of costs in suits against several defendants. Whelan v. Exchange Trust Co., 214 Mass. 121, 100 N. E. 1095, and cases there collected. See, as to costs in actions at law, Peabody v. Minot, 24 Pick. 329, 334; Mathers v. Cobb, 3 Allen, 467. It cannot be said to exceed judicial power to award several bills of costs in a case like the present. Commissioner of Banks, Petitioner, In re Prudential Trust Co., 240 Mass. 478, 489, 134 N. E. 253, was a case involving distribution of assets of an insolvent trust company, in process of liquidation by the commissioner of banks, between commercial and savings department depositors, Counsel were requested to prepare a brief and present arguments in behalf of depositors in the savings department whose individual interests were so small as to render it impracticable for any So much of the order of September 3, 1924, of them to retain counsel in their own be- as allowed the plaintiffs to amend their bill half. That was held to be "a proper case" on or before September 8, 1924, and imposed under general equity jurisdiction for the al- the payment of four hundred dollars, a moilowance of costs as between solicitor and cli-ety to each of two counsel, as terms of such ent. See, also, Frost v. Inhabitants of Bel- allowance, and the order of September 8, 147 N.E.-56 1924, and the final decree, are reversed. The TOPPING v. EASTERN MASSACHUSETTS (Supreme Judicial Court of Massachusetts. 1. Evidence 244 (9)-Complaint filed by motorman held inadmissible as admission. * * result, that the fact of such conduct, speech, or In passenger's action against street railway company for injuries caused by drunken (14) The court instructs you that it is not passenger, evidence that motorman had filed complaint charging such passenger with dis-only the right, but also the duty of a common orderly conduct held inadmissible as an admission, in absence of evidence of motorman's authority to act for corporation, or to make admissions binding employer. 2. Carriers 284(1),-Negligence in failing to prevent injury to passenger not shown. That person in charge of street car saw or ought to have seen drunken person getting on car is insufficient to establish negligence in failing to prevent injury to passenger subsequently resulting. 3. Trial 260(1) Denial of requested instructions covered by others given, not error. Denial of requested instructions, covered by others given, not error. 4. Trial 260 (8)-Requested charges as to street railway company's duty to protect passengers from disorderly conduct of other passengers held covered by instruction given. car In passenger's action against street railway company for injuries caused by drunken passengers, requested instructions as to operator's duty to protect plaintiff from threatened violence, and right and duty to remove disorderly and noisy passengers to protect and prevent annoyance of other passengers, held sufficiently covered by charge given. 5. Trial 252 (10)-Denial of requested instruction, inapplicable to evidence, not error. Denial of requested instruction as to street railroad company's duty to employ sufficient number of competent servants to meet any exigency likely to arise held not error, though instruction was correct statement of law, where there was no evidence of failure to perform such duty. carrier, such as the defendant is to remove disorderly persons in order to protect the rights of other passengers. (15) The court instructs you that it is not only the right, but also the duty, of a common carrier to remove passengers who are noisy and disorderly, to the annoyance of the other passengers. Beckwith v. Cheshire Railroad, 143 Mass. 68, 8 N. E. 875; Sullivan v. Old Colony Railroad Co., 148 Mass. 122, 18 N. E. 678, 1 L. R. A. 513. T. L. Reynolds and F. J. Garvey, both of Lowell, for plaintiff. J. M. O'Donoghue, of Lowell, for defendant. WAIT, J. The plaintiff claimed damages because, while seated as a passenger in a street car of the defendant, she was struck in the head during an altercation which arose between her companion, seated beside her, and a drunken passenger. At the It was Saturday night. The plaintiff and her companion took the car at Merrimack Square, Lowell. It was a "one-man" car, bound for an amusement park, and was crowded when it left the square. time of the alleged injury there were more than 70 passengers upon it, with seats for but 44. Soon after leaving the square, it stopped and took on 3 intoxicated men, obviously drunk. There was testimony that the motorman spoke with the men as they got on. One of them was given a seat by a woman, and went to sleep. The other two remained standing, and were noisy and boisterous. The motorman stopped his car (once, as he Exceptions from Superior Court, Middle- said; twice, as some other witnesses testisex County; J. H. Sisk, Judge. Action by Mabel F. Topping against the Eastern Massachusetts Street Railway Company. On plaintiff's exceptions after verdict for defendant. Exceptions overruled. Plaintiff's requests, Nos. 7, 13, 14, and 15, were as follows: (7) The court instructs you that, if you find that the conduct, speech, or manner of any passenger or passengers toward another passenger indicated that violence or harm was likely to fied), went back, and warned them. The last time he told them to come forward to the vestibule with him. They followed him, and, on the way, one pressed on the plaintiff's companion in passing him. Sharp words ensued, and the blow which the plaintiff claimed injured her. The motorman stopped the car on hearing a scream, seized the man, and with help put the 2 off the car. In the struggle his money apron and pouch were torn off. He reported the loss to the police, who arrested the men at the park. Earlier For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (147 N.E.) "On the other hand, a common carrier does not insure to its passengers immunity from harm. It is engaged in a public service which must be managed in such a manner as to be practical and adapted to the needs of contem in the evening the same 2 men had been re- | 815, 816, 7 L. R. A. (N. S.) 729, 118 Am. St. fused passage on another car by the car Rep. 516. starter at Merrimack Square, by order of the superintendent of the defendant's railway, on account of their drunken condition, and had been removed by a policeman. It appeared in the cross-examination of a wit-porary society, both as to expense, convenience, ness for the plaintiff that the men were tried in the police court for assault on the officer. The plaintiff offered evidence to show that a complaint was made by the motorman for disorderly conduct on the street car. It was offered as an admission by the defendant corporation of disorderly conduct by the two men. The evidence was exclud ed, and exception saved. [1] There was no dispute that there was disorderly conduct by the two men, and no error prejudicial to the plaintiff is shown, even had the ruling been wrong. It, however, was right. There was no evidence to show that the motorman had any authority to act for the corporation in making a complaint to the court, or after the event to make admissions binding his employer. Douglas v. Holyoke Machine Co., 233 Mass. 573, 575, 124 N. E. 478. [2] The plaintiff claimed exceptions to the refusal of the court to give seven instructions to the jury as requested. There was no error in the refusals. Requests 5, 6, and 8 were too broad. It is not enough to prove negligence in failing to prevent injury to a passenger to show that the person in charge of the car saw or ought to have seen a drunken person get upon the car and that injury subsequently resulted. The doctrine of Rylands v. Fletcher, L. R. 3, H. L. 330, is not to be extended to a drunken person on one's premises. Cobb v. Boston Elevated Railway, 179 Mass. 212, 60 N. E. 476. [3, 4] Requests 7, 14, and 15 were covered by the instructions actually given and to which no exception was taken. The judge instructed the jury in language quoted from decisions of this court: "It is the duty of the defendant, as a carrier of passengers for hire, to use the highest degree of care consistent with the nature and extent of its business, not only to provide safe and suitable vehicles for their carriage, but to maintain all such reasonable arrangements for control and supervision both of the passengers and of its own servants as prudence would dictate to guard its passengers, while they occupy that relation, against all dangers that are naturally and according to the usual course of things to be expected. And its duty to use all proper means and precautions to protect its passengers against injuries caused by the misconduct of other passengers, such as under the circumstances might have been anticipated and could have been guarded against, is no less stringent than the obligation to prevent misconduct or negligence on the part of its own servants." Kuhlen v. Boston & Northern Street Railway, 193 Mass. 341, 346, 79 N. E. * * comfort, and rapidity. Hence it cannot be held responsible for manifestations of lawlessness, heedlessness, impetuosity, or force which a high degree of prevision and sagacity could not reasonably be expected to forestall. Injury arising from the sporadic act of an individual or the aggregated impulses of a throng, if outside the limits of conduct reasonably to be apprehended by one under a strong legal duty to be most keenly sensitive to guard against preventable wrongs, affords no ground of liability. The carrier is not bound to adopt all possible precautions nor every conceivable safeguard for the safety of passengers, nor to exercise the utmost diligence which human ingenuity can imagine to avert injury." Glennen v. Boston Elevated Railway, 207 Mass. 497, 498, 93 N. E. 700, 701, 32 L. R. A. (N. S.) 470. [5] Request 13 was not based upon anything disclosed by the bill of exceptions. There was no evidence of any failure to select and employ a sufficient number of competent servants which had anything to do with the injury complained of. However correct as a statement of the law, the judge was not bound to give it in a case where the trial presented no issue to which it was applicable. Rich v. Silverman, 216 Mass. 195, 103 N. E. 382; Director General v. Eastern Steamship Lines, 245 Mass. 385, 401, 139 N. E. 823. The case properly was submitted to the jury. They decided for the defendant. We see no reason to disturb the verdict. CONARY v. BOSTON & M. R. R. (Supreme Judicial Court of Massachusetts. Middlesex. May 22, 1925.) 1. Death 95(1)-Damages against railroad held assessable under highway statute. Where death resulted from railroad's neglect of its duty under G. L. c. 229, § 1, to keep way over its railroad tracks in repair, and not from negligence in operation of business as a carrier, damages for death were assessable under section 1 and not under section 3 as for negligence. 2. Railroads 347 (7)-Admitting record of proceedings before county commissioners held prejudicial as showing railroad's breach of duty prior thereto. In action against railroad for death alleged to have been caused by neglect of duty to keep way over tracks in repair, admitting in evidence record of proceedings before county commissioners, in which preliminary statements of petition related to defendant's breach of duty For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes in 1845 and not that of 1920, was harmful er ror. Lowell street crosses the defendant's tracks by an overhead bridge. The intestate was 3. Railroads 347 (7) · As he was Evidence concerning operating a Ford automobile. original lay-out of highway held immaterial. traveling on the incline leading to the bridge, In action for death, alleged to have been one of the front wheels went into a deprescaused by railroad's failure of statutory duty sion in the surface of the way. The automoto keep way over its track in repair, plaintiff's bile turned and went through a wooden evidence concerning original lay-out of highway | fence onto the railroad location. The inheld immaterial; defendant's liability resting testate was injured and died November 18, on its neglect to comply with subsequent de- 1920. The plaintiff recovered a verdict of cree of county commissioners. $500 on the count for conscious suffering, and $5,000 on the death count. 4. Railroads 347(11)-Evidence as to construction of automobile properly excluded. Where decedent's automobile, traveling on incline leading to bridge over railroad tracks, struck depression and went through fence onto railroad location, evidence as to construction of automobile was properly excluded; there being nothing indicating any defect in it. [1] The defendant requested the trial judge to rule that, if it was liable, damages for the death were to be assessed under G. L. c. 229, § 1. This was refused. The plaintiff contended that damages were to be assessed under G. L. c. 229, § 3. Section 1, so far as material, provides that, if the life of 5. Death 60-Facts affecting degree of cul- a person is lost by reason of a defect or want pability held admissible. In action against railroad under G. L. c. 229, § 1, for death from failure to keep way on overhead bridge in proper repair, as damages were assessable with reference to defendant's degree of culpability, any facts affecting such question were admissible. 6. Bridges-43-Highways 196-To recover under highway statute, defect must be sole cause of injury. To recover under G. L. c. 229, § 1, for death caused by defect or want of repair on way or bridge, the defect must be the sole cause of the injury. 7. Appeal and error 1067-Refusal of request that defect of way must be sole cause of injury to permit recovery held harmless. In action for death, alleged to have been caused by railroad's failure to keep way on overhead bridge in proper repair, where evidence showed that decedent's automobile was not defective, refusal of defendant's request that defect in way must have been sole cause of injury to permit plaintiff to recover harmless. was Exceptions from Superior Court, Middlesex County; Robert F. Raymond, Judge. of repair in or upon a way or bridge, the "person by law obliged to repair the same shall * * * be liable in damages not exceeding one thousand dollars." Under section 3, so far as material to this case, it is provided: The defendant was the "person by law obliged to repair" the way. The procedure under the statute to recover against a railroad corporation, if it were obliged to keep the way in repair, would be the same as the procedure against a municipality obliged by law to keep the highway in repair. Notice to the defendant, as required by the statute, would be a condition precedent to recovery. Dickie v. Boston & Albany Railroad, 131 Mass. 516; Mack v. Boston & Albany Railroad, 164 Mass. 393, 41 N. E. 653. If the way were required to be kept in repair by the town, damages would be assessed under section 1, and we know of no reason why the same rule should not be applied where the defendant was charged with the duty of repair. The injury resulted from the defendant's neglect of its statutory duty to keep the way in a reasonably safe condition for travel. It did not result from the negligence of the defendant in the operation of its business as a carrier of passengers and goods. In Charles v. Boston Elevated Railway, 230 Mass. 536, 120 N. E. 69, the death of the passenger resulted from the negligence of the CARROLL, J. The plaintiff is the admin- defendant in transporting its passengers. istratrix of the estate of Arthur L. Conary. See, also, Commonwealth v. Boston & Lowell The action is in tort to recover damages for Railroad, 126 Mass. 61; Daley v. Boston & his conscious suffering and death resulting Albany Railroad, 147 Mass. 101, 112, 113, 16 from an accident which occurred November N. E. 690; Brooks v. Fitchburg & Leominster 15, 1920, in the town of Reading, where Street Railway, 200 Mass. 8, 86 N. E. 289. Action of tort by Olive W. Conary, administratrix of the estate of Arthur L. Conary, deceased, against the Boston & Maine Railroad, to recover for death resulting from an accident occurring on a street crossing defendant's tracks by an overhead bridge. Verdict for plaintiff, and defendant excepts. Exceptions sustained. C. H. Waterman, of Boston, for plaintiff. J. M. O'Donoghue, of Lowell, for defendant. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |