« ForrigeFortsett »
(145 N.E.) the issue of said marriage, and said child died , husband's attorney, who had filed the suit on or about the 15th day of October, 1919; for his client some time previously, who had and that the defendant, Franklyn Wayne Nor- in some manner communicated with him, and ton, abandoned this plaintiff without good cause.
"It is further ordered and adjudged that the presumably was acquainted—at least approxdefendant, Franklyn Wayne Norton, pay to the imately—with the actual earning capacity of plaintiff as her reasonable alimony in money the his client at that time. It was not stated sum of fifteen ($15.00) dollars on this, the 13th that the husband was not working, nor that day of October, 1921, and the further sum of he was working for less than the amount fifteen ($15.00) dollars each and every week claimed by the wife. Did the trial court err thereafter until further order of this court; in granting $15 a week temporary alimony that he pay to plaintiff's attorneys forthwith upon this evidence? the sum of seventy-five ($75.00) dollars as at
The right of a wife to temporary alimony torney fees; and to the clerk the costs of this action; that, in the event defendant, Franklyn rests largely in the discretion of the court.
19 Corpus Juris, 206. The right to the Wayne Norton, shall pay to plaintiff the sum of seven hundred fifty ($750.00) dollars during amount is to be determined by the wife's the present term of this court, and shall pay necessities and by the husband's means. to plaintiff's attorneys the sum of seventy-five Proof of the husband's ability to pay the ($75.00) dollars, and shall pay the costs of allowance must be given before the allowance this proceeding, such payments shall be in full may be made. The allowance may be based satisfaction and in lieu of any further weekly on the husband's earnings, or his earning payments as hereinabove set forth."
capacity, although he is not possessed of
money or property. 19 Corpus Juris, 216; Exhibits were also introduced in evidence Peyre v. Peyre, 79 Cal. 336, 21 Pac. 838. showing payment in full of the $750 ordered The poverty of a husband is no defense to to be paid in the judgment for alimony, and the application where the action for divorce the payment in full of the $75 ordered to be is brought by him, since he should not be paid as attorney fees in the Lucas county permitted to prosecute the action if he can
not furnish the wife with means to make her The testimony of the wife given at the defense. hearing upon the motion for temporary ali Mere lack of present means will not in mony tends to establish that the wife had no all cases be sufficient as a defense, espemeans of support whatever, owning no prop- cially where the husband is physically able erty, and having been cared for by her fam- to earn money for the support of himself ily during her present marital troubles. She and family. 19 Corpus Juris, 216. testified that she was at the time not able to It is so evident that a prima facie case in work; that her people live in Atlanta, Ga., favor of temporary alimony is made where where she herself resided until shortly before there is testimony establishing the wife’s the bringing of the Lucas county suit; and need and the husband's physical capacity to that, during the pendency of the alimony suit support her, and the order is so completely in brought by her in Lucas county, she resided control of the court and subject to change temporarily in Toledo, Ohio, and was at upon the submission of facts on the part of the hospital during part of that time. It the husband, that courts sometimes go so far appears in the record that a child was born as to hold that alimony pendente lite may to the plaintiff and the defendant in 1919 be granted without notice to the husband. which died shortly after its birth.
Fowler v. Fowler, 61 Okl. 280, 161 Pac. 227, The testimony of the wife, also, was to L. R. A. 1917C, 89. the effect that the husband's health was "per Temporary alimony is granted the wife upfect," and that two years before that time on the theory that she is entitled to make the husband was getting $40 a week and his her defense, and that she has no means to expenses as salary in the same company in defend herself during the pendency of the which he is now employed. She testified suit. In the case herein ample evidence exupon information from the company that his ists of the wife's financial inability to conpresent salary is $50 a week and expenses. duct the defense. This testimony, of course, was hearsay. As The necessity of railroad fare from Toledo the hearing was held before a judge, and not to Elyria, coupled with the need of securing before a jury, in itself it was probably not meals and possibly lodging in a place forgreatly prejudicial. However, is there eign to that where she was already boardenough competent other evidence in the rec-ing, enhanced the wife's expense, and enord to sustain the order of the trial court? hanced that expense directly in connection
It will be observed that, in the instant with the prosecution of her defense. case, the husband is suing the wife. No When a wife is destitute, if she cannot tice was duly served of the time set for secure alimony pendente lite both for attorhearing the motion a week before the hear. ney fees and for the necessary increases in ing, but the husband was not present at that expenditure which are imposed upon her by time. None of the statements made by the the divorce suit, she cannot make her defense. wife as to the earning capacity of the hus Under the above authority and for the band or as to his health were denied by the above reasons we hold that competent evi.
dence sufficient to sustain the allowance was , after being granted permanent alimony, had before the trial court and that the Court of herself sued for divorce. Appeals erred in reversing the order for tem This is a case where the husband has subporary alimony upon that ground.
jected his wife to additional expense not It being the case that the continuance was contemplated, so far as the record shows, in not an abuse of discretion, and that compe- the settlement of the suit for alimony by tent testimony was before the court upon satisfaction of the judgment therein. which to grant alimony pendente lite, it was Under these circumstances the wife is ennot error to overrule the motion for a new titled to make her defense and to be protrial.
tected in her right to temporary alimony for We have considered all of the grounds up that purpose irrespective of the satisfaction on which the Court of Appeals reversed the of the previous judgment. court of common pleas, and shall now dis For the foregoing reason the judgment of cuss a point urged in this court by the de- the Court of Appeals is reversed. fendant in error, who claims that the judg. Judgment reversed. ment for alimony in the alimony suit brought in Lucas county by the wife, since it was MARSHALL, C. J., and DAY and CONN, fully satisfied before the motion for tempo JJ., concur. rary alimony was filed in the divorce suit brought by the husband, bars the wife's application for temporary alimony in the divorce suit.
THACHER V. COOK, Secretary of CommonIt may be observed that, in the motion
wealth. for temporary alimony, the wife is apply
(Supreme Judicial Court of Massachusetts. ing for suit money, and not for permanent
Middlesex. Oct. 22, 1924.) alimony. In other words, this is not an independent action for a new allowance of 1. Statutes w203—Omissions cannot be suppermanent alimony, but is an application for plied by courts or thosė administering law. alimony pendente lite growing out of the Plain omissions in law to provide for exaction brought by the husband for divorce. igencies which may arise cannot be supplied by
The principal case upon which the defend those administering law, or by courts in conant in error relies in this connection is the struing or interpreting statutes. case of Collins v. Collins, 80 N. Y. 1, which 2. Statutes 206–Duty of courts to discover holds in the syllabus:
real meaning and correlate several parts of “Where, at the time an action for divorce is
complicated enactment to give workable ef
fect to whole. instituted, the parties are living separate and apart, in pursuance of articles of separation,
It is duty of courts to discover real meanand suitable provision has been made by the ing contained in words in statute, to elucidate husband for the separate maintenance of the signification of those words and to correlate wife, alimony pendente lite should not, as a gen- several parts of complicated enactment, so as eral rule, be allowed.”
to give rational and workable effect to whole,
so far as practicable. This case, however, is not an authority 3. Elections Ons 172—Two candidates of same against the plaintiff in error; it is an au
party living in same town could not be placed thority in her favor.
on ballot for county commissioners, though
each received more votes than rivals. The fourth paragraph of the syllabus reads as follows:
Where four candidates ran for Republican
nomination for office of county commissioner, "Such provision, however, does not prejudice there being two offices to be filed, and two getan application on the part of the wife to be pro- ting highest number of votes in primary both vided with means to prosecute the action; this lived in same town, second highest was not will be granted if she is otherwise entitled, and entitled to have his.name placed on ballot for has not sufficient means of her own."
election, in view of Gen. Laws, c. 54, § 158,
providing that not more than one shall be chosWe do not pass upon the merits of this en from same city or town, chapter 50, $8 1, case. If the wife was guilty of all of the 2, and chapter 53, SS 1, 24. actions charged in the petition, the case may be a proper one for divorce, but whatever Report from Supreme Judicial Court, Midthe facts, the wife is entitled to be heard.
dlesex County. The instant case is stronger in favor of Petition by Frank G. Thacher for writ of the plaintiff in error than the Collins Case; mandamus to be directed against Frederic for in the Collins Case the wife was suing W. Cook, as Secretary of Commonwealth, to the husband for divorce after provision had compel him to place name of petitioner on been made by the husband for her separate ballot as candidate of Republican party for maintenance. Here the husband is suing the election to office of County Commissioner for wife for divorce. We make no holding upon County of Barnstable. On report. Petition the question which would arise if the wife, I dismissed.
For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes
(145 N.E.) H. F. R. Dolan and J. H. Morson, both of, therein as there are persons to be elected to Boston, for petitioner.
that office, and no more.” A. Lincoln, Asst. Atty. Gen., for respondent.
[1, 2] The general purpose of the Legisla
ture in enacting the statutes regulating priRUGG, C. J. This is a petition for a writmaries and elections was to make a reasonof mandamus to compel the secretary of the ably consistent and harmonious body of law commonwealth to place upon the official bal- which should afford to qualified citizens an lot, to be used in the county of Barnstable at opportunity to cast votes efficient to express the state election on the 4th of November next, their preferences and which should have the the name of the petitioner as a candidate of final result of filling the offices required by the Republican party for the office of county law. Plain omissions in the law to provide commissioner, and to desist from placing up-for exigencies which may arise cannot be on that ballot the name of Benjamin F. supplied by those charged with administering Bourne as such candidate. The essential the law or by the courts in construing and facts are that the petitioner is a resident of interpreting the statutes. It is the duty of the town of Barnstable in the county of the courts to discover the real meaning conBarnstable. At the primaries held on the tained in the words used in a statute, to elu9th day of September last, the name of the cidate the signification of those words, and petitioner appeared upon the official ballot to correlate the several parts of a complias a candidate for the Republican nomination cated enactment so as to give a rational and for the office of county commissioner of the workable effect to the whole so far as praccounty of Barnstable, as did also the names ticable. of John D. W. Bodfish of said Barnstable,  No contention has been made that the Benjamin F. Bourne of Bourne and Arthur name of Bodfish ought not to be upon the Underwood of Falmouth, all within said official ballot as a Republican candidate for county. As a result of the primary as certi- the office of county commissioner for Barnfied to the secretary of the commonwealth stable county. He is a resident of BarnstaBodfish received 1,945 votes, the petitioner ble. The petitioner also is a resident of 1,887 votes, Bourne 1,769 votes, and Under- Barnstable. It is manifest that if the names wood 1,127 votes. Thereupon the respondent of both Bodfish and the petitioner appear updetermined to place upon the official ballot on the official ballot only the one of them refor the state election in Barnstable county ceiving the larger number of votes can be deas candidate of the Republican party for the clared elected. G. L. c. 54, $ 158. The protwo vacancies in office of county commis- visions of G. L. c. 53, 88 1, 24, must be read sioners the names of Bodfish and Bourne in the light of that dominant requirement. and to omit from the official ballot the name We interpret all of these provisions to mean of the petitioner.
as applied to the facts of the case at bar that The pertinent provisions of the statutes at a primary of any political party for the are that two persons are this year to be elect- nomination of candidates where two or more ed county commissioners for the county of persons are to be elected to an office, such Barnstable. G. L. C. 54, 8 '158. The same political party may nominate as many cansection provides that "not more than one of didates with such qualifications as to resithe county commissioners
shall be dence or otherwise as may be elected to such chosen from the same city or town." By G. office. The party nominations must be effecL. c. 50, $$ 1, 2, in elections of county officers, tive to the end of an election so that any par. "the person receiving the highest number of ty may nominate as many such candidates votes for an office shall be deemed and de- only as may be elected under the law. More clared to be elected to such office; and if narrowly stated the word "candidates" in two or more are to be elected to the same the first sentence of G. L. c. 53, § 1, signifies oflice, the several persons, to the number to "ca lidates capable under the law of being be chosen to such office, receiving the highest elected.” number of votes, shall be deemed and de No question has been raised as to the form clared to be elected.
That stat- of the remedy. Since the petition must be ute governs primaries, G. L. c. 53, 8 24. These dismissed, there is no objection to stating words are found in G. L. c. 53, g 1:
grounds of substantive law requiring that re“At any primary, caucus or convention held sult without considering the form of the remunder this chapter, each party having the right edy or the effect of the provisions of G. L. c. to participate in or hold the same may nomi- 53, § 12 as to the functions of the state balnate as many candidates for each office for lot law commission. which it has the right to make nominations Petition dismissed.
sioners, above referred to. The material HANNA V. INHABITANTS OF HAMPDEN parts of the lease are as follows: COUNTY.
"Said Frost hereby leases to said Hanna (Supreme Judicial Court of Massachusetts. stables 1, 3 and 4 and two offices for $100.00 Hampden. Oct. 21, 1924.)
per month, payable monthly, from August 1,
1918, to January 1, 1919, and after January 1. Eminent domain Om 155—Lessee with mere 1, 1919 he leases to said Hanna stables 1, 2, 3,
right to renewal not entitled to sue for dam- and 4 and 2 offices at $125.00 per month, pay. ages for taking land for streets.
able monthly, for three years from January 1, Lessee "with the privilege of renewal,” | 1919, with the privilege of a renewal for three after giving notice of desire to renew, did not years at the end of said term at the same renthave such estate as entitled him to sue county al." for damages for taking of land for streets un. der St. 1915, c. 252; formal renewal or ex
On July 15, 1921, the petitioner caused to tension being necessary.
be written to Goldthwaite and to the county
of Hampden a letter as follows: 2. Eminent domain m155 - Tenant at will not entitled to damages for taking of prop
"Upon the assumption that you are the preserty.
ent owner of the property in West Springfield Tenant at will has no estate that entitles which I occupy under my lease from Victor M. him to damages for taking of property by emi- Frost, dated August 1, 1918, I hereby notify
you that I desire to renew said lease, in acdent domain.
cordance with its terms, for three years from
January 1, 1922.”
The receipt of this letter by each of the Petition by George F. Hanna for assess- addressees was admitted. The question for ment of damages alleged to have been caused | us to determine is whether the petitioner had by the Inhabitants of the County of Hamp- in the lease under the provision for renewal,
an estate and property in the land described den, because of taking of lands and construction of streets, made by county commission which entitles him to maintain this proceed
ing for damages. ers under St. 1915, c. 252. Court instructed jury, and petitioner brings exceptions. Ex
 In Leavitt v. Maykel, 203 Mass. 506, ceptions overruled.
508, 509, 89 N. E. 1056, 1057 (133 Am. St.
Rep. 323), which was an action to recover Scott Adams, of Springfield, for petitioner. rent for premises leased by plaintiffs to the
Henry W. Ely, Joseph B. Ely, and Wm. A. defendants, similar language in a lease was McDonough, all of Springfield, for respond- construed by this court. It was there said ents.
that the clause, “It is further agreed in con
sideration hereof the lessees shall have the CROSBY, J. This is a petition for an as- privilege and right to renew this lease at its sessment of damages, alleged to have been expiration for further term of two years sustained by the petitioner through acts of upon the same terms and conditions of this the respondents in the taking by them of lease," gave the lessees a right to have a relands and the construction of streets in West newal of the lease for two years more, but Springfield, under the provisions of St. 1915, without a formal renewal or something c. 252. The petitioner's claim for damages is equivalent to it, it did not extend the term based upon the allegation that he had a through this additional period. In Cunningleasehold estate in the buildings and in por- ( ham v. Pattee, 99 Mass. 248, 252, the court tions of the land upon which they were sit- said: uated, shown on a plan admitted in evidence.
"The word (renew], ex vi termini, imports The record title to the land at the time of the giving a new lease like the old one, with such taking, on October 6, 1920, stood in the the same terms and stipulations, at the same name of Edward S. Goldthwaite. The coun rent and with all the essential covenants." ty commissioners entered the land for the construction of streets therein on May 1, In construing the lease in the case at bar, 1922, on which day the petitioner was first we are unable to perceive any sound distinc. disturbed and deprived of the occupation of tion as to meaning between the words "with the premises described in his lease. On Jan- the privilege of a renewal” and the words uary 18, 1921, Goldthwaite executed and de- “the lessees shall have the privilege and livered to the county of Hampden a warranty right to renew” the lease. The decisions deed of the premises, which deed constituted above referred to are in our opinion decisive, a settlement of his claim for damages sus- and preclude the petitioner from maintaintained by reason of the taking.
ing this proceeding. Emery v. Boston TerOn August 1, 1918, one Frost, Goldthwaite's minal Co., 178 Mass. 172, 59 N. E. 763, S6 predecessor in title, executed and delivered Am. St. Rep. 473; Cornell-Andrews Smelt. to the petitioner a lease of certain portions ing Co. v. Boston & Providence Railroad, 209 of the land and buildings thereon which Mass. 298, 95 N. E. 887; Gardella v. Greenwere included in the taking by the commis- / burg, 242 Mass. 405, 136 N. E. 106.
em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
(145 N.E.) The language of the lease under consider-, in a station of the defendant, in order to ation differs from that construed in Kramer avoid an employee of the defendant sweepF. Cook, 7 Gray, 550, Dix v. Atkins, 130 Mass. ing the stairs, she stepped to the other side, 171, Kimball v. Cross, 136 Mass. 300, Stone and the sweeper "stood so she would pass by v. St. Louis Stamping Co., 155 Mass. 267, 29 as she went down the third step N. E. 623, and other cases cited by the peti- she felt her foot going from under her. tioner, where it was held that the language
The surface of the step felt very used did not contemplate the making of a slippery.
The front of the foot new lease, but provided that the original slipped right over a slippery substance." term should include the additional period, if There was nothing to indicate what this subthe lessee so elected by continuing to occupy stance was or how long it had been there. the premises and paying the stipulated rent- No witness saw it or described it. The tesal.
timony was that there was on the stairs  It was said by Chief Justice Knowlton, "simply the sweeping * nothing exin Leavitt v. Maykel, supra, at page 509, 89 cept dust in it;" "just a little bunch where N. E. 1057:
the porter was sweeping. There was no skid "Under the language used in the present
mark on the stairs." lease, it was necessary that there should be, There was no evidence of negligence on the either the making of a new lease for the addi- | part of the defendant. The case is governed tional term, or a formal extension of the ex- | by numerous decisions. Goddard v. Boston & isting lease, or something equivalent thereto, Maine Railroad, 179 Mass. 52, 60 N. E. 486 ; in order to bind both parties for a period of Hotenbrink v. Boston Elevated Railway, 211 two years more."
Mass. 77, 97 N. E. 624, 39 L. R. A. (N. S.)
419; Norton v. Hudner, 213 Mass. 257, 100 This language seems pertinent as applied N. E. 546, 44 L. R. A. (N. S.) 79; Zugbie v. to the lease in the present case. The peti. J. R. Whipple Co., 230 Mass. 19, 119 N. E. tioner at the time of the taking by the re- 191; Labrie v. Donham, 243 Mass. 584, 138 spondents was at most a tenant at will ; such N. E. 3; O'Neill v. Boston Elevated Raila tenant has no estate that entitles him to way, 248 Mass. 362, 142 N. E. 904, and cases damages for the taking of property by emi- there collected. nent domain. Emerson v. Somerville, 166
Exceptions overruled. Mass. 115, 44 N. E. 110.
O'BRIEN V. BOSTON ELEVATED RY. CO.
MCLOUGHLIN V. SHEEHAN et al. (Supreme Judicial Court of Massachusetts.
(Supreme Judicial Court of Massachusetts. Suffolk. Oct. 24, 1924.)
Worcester. Oct. 18, 1924.) Carriers 318(2)-Evidence held not to show 1. Evidence Cw474(2) — Exclusion of testinegligence as to passenger slipping on steps
mony, not appearing to be based on personal at station.
observation that witness thought testatrix
was certain age, not error. Evidence that passenger's foot slipped on slippery substance on step at station, without
There was no error in exclusion of testiindication as to what substance was or how mony to effect that witness thought testatrix long it had been on step, held not to show neg
was woman over 80 years of age; it not apligence of carrier.
pearing that this opinion was founded on per
sonal observation. Exceptions from Superior Court, Suffolk 2. Evidence C476 — Witness may sometimes County; Frederick Lawton, Judge.
give his deductions from specific facts as to
age of another. Action of tort by Catherine O'Brien
In appropriate instances witness may tesagainst the Boston Elevated Railway Com- tify as to age of another as deduction from pany, to recover damages for personal inju- sufficiently specific facts within his own knowlries, in consequence of falling upon stairs edge, but much must be left to discretion of maintained by defendant at a station. Ver-trial judge. dict was directed for defendant, and plain- 3. Wills Emm 322–Offer of evidence to render tiff brings exceptions. Exceptions overruled.
admissible other evidence on undue influence C. W. Blood, of Boston, for plaintiff.
held properly excluded as at best remote. John T. Hughes, of Boston, for defendant.
On refusal by trial judge, on question of
undue influence, to admit conversation with PER CURIAM. This is an action of tort testatrix in 1917, offer made to show that some
time between 1917 and 1921 testatrix made to recover compensation for personal inju- certain statement, held properly excluded as ries sustained by the plaintiff. The evidence not being directed to time at which witness in its aspect most favorable to the plaintiff had knowledge and relating to time subsequent tended to show that while descending stairs to execution of will, and at best remote.
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes