(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. presumably was acquainted—at least approx"It is further ordered and adjudged that the defendant, 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

torney fees; and to the clerk the costs of this

action; that, in the event defendant, Franklyn Wayne Norton, shall pay to plaintiff the sum of seven hundred fifty ($750.00) dollars during the present term of this court, and shall pay to plaintiff's attorneys the sum of seventy-five ($75.00) dollars, and shall pay the costs of this proceeding, such payments shall be in full satisfaction and in lieu of any further weekly payments as hereinabove set forth."

Exhibits were also introduced in evidence showing payment in full of the $750 ordered to be paid in the judgment for alimony, and the payment in full of the $75 ordered to be paid as attorney fees in the Lucas county

case.

The testimony of the wife given at the hearing upon the motion for temporary alimony tends to establish that the wife had no means of support whatever, owning no property, and having been cared for by her family during her present marital troubles. She testified that she was at the time not able to work; that her people live in Atlanta, Ga., where she herself resided until shortly before the bringing of the Lucas county suit; and that, during the pendency of the alimony suit brought by her in Lucas county, she resided temporarily in Toledo, Ohio, and was at the hospital during part of that time. It appears in the record that a child was born to the plaintiff and the defendant in 1919 which died shortly after its birth.

The right of a wife to temporary alimony rests largely in the discretion of the court. 19 Corpus Juris, 206. The right to the amount is to be determined by the wife's necessities and by the husband's means. Proof of the husband's ability to pay the allowance must be given before the allowance may be made. The allowance may be based on the husband's earnings, or his earning capacity, although he is not possessed of money or property. 19 Corpus Juris, 216; Peyre v. Peyre, 79 Cal. 336, 21 Pac. 838.

The poverty of a husband is no defense to the application where the action for divorce is brought by him, since he should not be permitted to prosecute the action if he cannot furnish the wife with means to make her defense.

Mere lack of present means will not in all cases be sufficient as a defense, especially where the husband is physically able to earn money for the support of himself and family. 19 Corpus Juris, 216.

It is so evident that a prima facie case in favor of temporary alimony is made where there is testimony establishing the wife's need and the husband's physical capacity to support her, and the order is so completely in control of the court and subject to change upon the submission of facts on the part of the husband, that courts sometimes go so far as to hold that alimony pendente lite may be granted without notice to the husband. Fowler v. Fowler, 61 Okl. 280, 161 Pac. 227, L. R. A. 1917C, 89.

Temporary alimony is granted the wife upon the theory that she is entitled to make her defense, and that she has no means to defend herself during the pendency of the suit. In the case herein ample evidence exists of the wife's financial inability to conduct the defense.

The testimony of the wife, also, was to the effect that the husband's health was "perfect," and that two years before that time the husband was getting $40 a week and his expenses as salary in the same company in which he is now employed. She testified upon information from the company that his present salary is $50 a week and expenses. This testimony, of course, was hearsay. As the hearing was held before a judge, and not before a jury, in itself it was probably not greatly prejudicial. However, is there enough competent other evidence in the rec-ing, enhanced the wife's expense, and enord to sustain the order of the trial court?

The necessity of railroad fare from Toledo to Elyria, coupled with the need of securing meals and possibly lodging in a place foreign to that where she was already board

hanced that expense directly in connection with the prosecution of her defense.

When a wife is destitute, if she cannot secure alimony pendente lite both for attor

It will be observed that, in the instant case, the husband is suing the wife. Notice was duly served of the time set for hearing the motion a week before the hear-ney fees and for the necessary increases in ing, but the husband was not present at that time. None of the statements made by the wife as to the earning capacity of the husband or as to his health were denied by the

expenditure which are imposed upon her by the divorce suit, she cannot make her defense.

Under the above authority and for the above reasons we hold that competent evi

dence sufficient to sustain the allowance was before the trial court and that the Court of Appeals erred in reversing the order for temporary alimony upon that ground.

It being the case that the continuance was not an abuse of discretion, and that competent testimony was before the court upon which to grant alimony pendente lite, it was not error to overrule the motion for a new trial.

We have considered all of the grounds upon which the Court of Appeals reversed the court of common pleas, and shall now discuss a point urged in this court by the defendant in error, who claims that the judgment for alimony in the alimony suit brought in Lucas county by the wife, since it was fully satisfied before the motion for temporary alimony was filed in the divorce suit brought by the husband, bars the wife's application for temporary alimony in the divorce suit.

It may be observed that, in the motion for temporary alimony, the wife is applying for suit money, and not for permanent alimony. In other words, this is not an independent action for a new allowance of permanent alimony, but is an application for alimony pendente lite growing out of the action brought by the husband for divorce.

The principal case upon which the defendant in error relies in this connection is the case of Collins v. Collins, 80 N. Y. 1, which holds in the syllabus:

"Where, at the time an action for divorce is instituted, the parties are living separate and apart, in pursuance of articles of separation, and suitable provision has been made by the husband for the separate maintenance of the wife, alimony pendente lite should not, as a general rule, be allowed."

This case, however, is not an authority against the plaintiff in error; it is an authority in her favor.

The fourth paragraph of the syllabus reads as follows:

"Such provision, however, does not prejudice an application on the part of the wife to be provided with means to prosecute the action; this will be granted if she is otherwise entitled, and has not sufficient means of her own."

We do not pass upon the merits of this case. If the wife was guilty of all of the actions charged in the petition, the case may be a proper one for divorce, but whatever the facts, the wife is entitled to be heard.

The instant case is stronger in favor of the plaintiff in error than the Collins Case; for in the Collins Case the wife was suing the husband for divorce after provision had been made by the husband for her separate maintenance. Here the husband is suing the wife for divorce. We make no holding upon the question which would arise if the wife,

after being granted permanent alimony, had herself sued for divorce.

This is a case where the husband has subjected his wife to additional expense not contemplated, so far as the record shows, in the settlement of the suit for alimony by satisfaction of the judgment therein.

Under these circumstances the wife is entitled to make her defense and to be protected in her right to temporary alimony for that purpose irrespective of the satisfaction of the previous judgment.

For the foregoing reason the judgment of the Court of Appeals is reversed. Judgment reversed.

MARSHALL, C. J., and DAY and CONN, JJ., concur.

THACHER v. COOK, Secretary of Common

wealth.

(Supreme Judicial Court of Massachusetts. Middlesex. Oct. 22, 1924.)

1. Statutes 203-Omissions cannot be supplied by courts or those administering law.

Plain omissions in law to provide for exigencies which may arise cannot be supplied by those administering law, or by courts in construing or interpreting statutes.

2. Statutes 206-Duty of courts to discover real meaning and correlate several parts of complicated enactment to give workable effect to whole.

It is duty of courts to discover real meaning contained in words in statute, to elucidate signification of those words and to correlate several parts of complicated enactment, so as to give rational and workable effect to whole, so far as practicable.

3. Elections 172-Two candidates of same party living in same town could not be placed on ballot for county commissioners, though each received more votes than rivals.

Where four candidates ran for Republican nomination for office of county commissioner, there being two offices to be filed, and two getting highest number of votes in primary both lived in same town, second highest was not entitled to have his name placed on ballot for election, in view of Gen. Laws, c. 54, § 158, providing that not more than one shall be chosen from same city or town, chapter 50, §§ 1, 2, and chapter 53, §§ 1, 24.

Report from Supreme Judicial Court, Middlesex County.

Petition by Frank G. Thacher for writ of mandamus to be directed against Frederic W. Cook, as Secretary of Commonwealth, to compel him to place name of petitioner on ballot as candidate of Republican party for election to office of County Commissioner for County of Barnstable. On report. Petition 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."

sioners, above referred to. The material HANNA v. INHABITANTS OF HAMPDEN parts of the lease are as follows:

COUNTY.

(Supreme Judicial Court of Massachusetts. Hampden. Oct. 21, 1924.)

1. Eminent domain 155-Lessee with mere right to renewal not entitled to sue for damages for taking land for streets.

Lessee "with the privilege of renewal," after giving notice of desire to renew, did not have such estate as entitled him to sue county for damages for taking of land for streets under St. 1915, c. 252; formal renewal or extension being necessary.

2. Eminent domain 155-Tenant at will

"Said Frost hereby leases to said Hanna stables 1, 3 and 4 and two offices for $100.00 per month, payable monthly, from August 1, 1918, to January 1, 1919, and after January 1, 1919 he leases to said Hanna stables 1, 2, 3, and 4 and 2 offices at $125.00 per month, payable monthly, for three years from January 1, 1919, with the privilege of a renewal for three years at the end of said term at the same rental."

On July 15, 1921, the petitioner caused to be written to Goldthwaite and to the county of Hampden a letter as follows:

not entitled to damages for taking of prop-ent owner of the property in West Springfield "Upon the assumption that you are the preserty. 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 accordance with its terms, for three years from January 1, 1922."

nent domain.

Exceptions from Superior Court, Hampden County; Nelson P. Brown, Judge.

Petition by George F. Hanna for assessment of damages alleged to have been caused by the Inhabitants of the County of Hampden, because of taking of lands and construction of streets, made by county commissioners under St. 1915, c. 252. Court instructed jury, and petitioner brings exceptions. Exceptions overruled.

Scott Adams, of Springfield, for petitioner. Henry W. Ely, Joseph B. Ely, and Wm. A. McDonough, all of Springfield, for respondents.

CROSBY, J. This is a petition for an assessment of damages, alleged to have been sustained by the petitioner through acts of the respondents in the taking by them of lands and the construction of streets in West Springfield, under the provisions of St. 1915, c. 252. The petitioner's claim for damages is based upon the allegation that he had a leasehold estate in the buildings and in portions of the land upon which they were situated, shown on a plan admitted in evidence. The record title to the land at the time of such taking, on October 6, 1920, stood in the name of Edward S. Goldthwaite. The county commissioners entered the land for the construction of streets therein on May 1, 1922, on which day the petitioner was first disturbed and deprived of the occupation of the premises described in his lease. On January 18, 1921, Goldthwaite executed and delivered to the county of Hampden a warranty deed of the premises, which deed constituted a settlement of his claim for damages sustained by reason of the taking.

The receipt of this letter by each of the addressees was admitted. The question for us to determine is whether the petitioner had an estate and property in the land described in the lease under the provision for renewal, which entitles him to maintain this proceeding for damages.

[1] In Leavitt v. Maykel, 203 Mass. 506, 508, 509, 89 N. E. 1056, 1057 (133 Am. St. Rep. 323), which was an action to recover rent for premises leased by plaintiffs to the defendants, similar language in a lease was construed by this court. It was there said that the clause, "It is further agreed in consideration hereof the lessees shall have the privilege and right to renew this lease at its expiration for further term of two years upon the same terms and conditions of this lease," gave the lessees a right to have a renewal of the lease for two years more, but without a formal renewal or something equivalent to it, it did not extend the term through this additional period. In Cunningham v. Pattee, 99 Mass. 248, 252, the court said:

"The word [renew], ex vi termini, imports the giving a new lease like the old one, with the same terms and stipulations, at the same rent and with all the essential covenants."

In construing the lease in the case at bar, we are unable to perceive any sound distinction as to meaning between the words "with the privilege of a renewal" and the words "the lessees shall have the privilege and right to renew" the lease. The decisions above referred to are in our opinion decisive, and preclude the petitioner from maintaining this proceeding. Emery v. Boston TerOn August 1, 1918, one Frost, Goldthwaite's minal Co., 178 Mass. 172, 59 N. E. 763, 86 predecessor in title, executed and delivered Am. St. Rep. 473; Cornell-Andrews Smeltto 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.

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 sweepv. 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 "simply the sweeping * * * nothing except dust in it;" "just a little bunch where the porter was sweeping. There was no skid mark on the stairs."

[2] It was said by Chief Justice Knowlton, in Leavitt v. Maykel, supra, at page 509, 89 N. E. 1057:

"Under the language used in the present lease, it was necessary that there should be, either the making of a new lease for the additional term, or a formal extension of the existing lease, or something equivalent thereto, in order to bind both parties for a period of two years more."

This language seems pertinent as applied to the lease in the present case. The petitioner at the time of the taking by the respondents was at most a tenant at will; such a tenant has no estate that entitles him to damages for the taking of property by eminent domain. Emerson v. Somerville, 166 Mass. 115, 44 N. E. 110. Exceptions overruled.

There was no evidence of negligence on the part of the defendant. The case is governed by numerous decisions. Goddard v. Boston & Maine Railroad, 179 Mass. 52, 60 N. E. 486; Hotenbrink v. Boston Elevated Railway, 211 Mass. 77, 97 N. E. 624, 39 L. R. A. (N. S.) 419; Norton v. Hudner, 213 Mass. 257, 100 N. E. 546, 44 L. R. A. (N. S.) 79; Zugbie v. J. R. Whipple Co., 230 Mass. 19, 119 N. E. 191; Labrie v. Donham, 243 Mass. 584, 138

N. E. 3; O'Neill v. Boston Elevated Railway, 248 Mass. 362, 142 N. E. 904, and cases there collected.

Exceptions overruled.

O'BRIEN v. BOSTON ELEVATED RY. CO. (Supreme Judicial Court of Massachusetts. Suffolk. Oct. 24, 1924.)

Carriers 318(2)-Evidence held not to show negligence as to passenger slipping on steps at station.

Evidence that passenger's foot slipped on slippery substance on step at station, without indication as to what substance was or how long it had been on step, held not to show negligence of carrier.

McLOUGHLIN v. SHEEHAN et al. (Supreme Judicial Court of Massachusetts. Worcester. Oct. 18, 1924.)

1. Evidence 474 (2) - Exclusion of testimony, not appearing to be based on personal observation that witness thought testatrix was certain age, not error.

There was no error in exclusion of testi

mony to effect that witness thought testatrix was woman over 80 years of age; it not appearing that this opinion was founded on personal observation.

Exceptions from Superior Court, Suffolk 2. Evidence 476- 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 322-Offer of evidence to render tiff brings exceptions. Exceptions overruled.

C. W. Blood, of Boston, for plaintiff.
John T. Hughes, of Boston, for defendant.

admissible other evidence on undue influence held properly excluded as at best remote.

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