(146 N.E.)

clared in Real Property Co., Inc., v. Pitt are MATSON v. SBREGA.

found in Kenyon v. Suburban Realty Corp.,

244 Mass. 571, 139 N. E. 172; Downey v. Lev. (Supreme Judicial Court of Massachusetts. Worcester. Oct. 18, 1924.)

enson, 247 Mass. 358, 142 N. E. 85; Wright v.

Graustein, 248 Mass. 205, 142 N. E. 797. Appeal and error m84(1)-Appeal from ap Appeal dismissed. pellate division, reversing rulings and order. ing new trial, held premature.

An appeal from action of appellate division of the district court reversing ruling of law HARVEY V. PAWTUCKET MUT. FIRE INS. made by district court and ordering new trial,

CO. without awaiting result of new trial in district court, was premature, as there must be final

(Supreme Judicial Court of Massachusetts. and complete decision upon merits to warrant

Hampden. Oct. 18, 1924.) appeal.

1. Insurance 336(2)— Insurance obtained by Appeal from District Court, Appellate Di mortgagee without owner's knowledge not vision,

violation of condition as to other insurance.

Insurance obtained without owner's knowlAction of tort by John Matson against edge by mortgagee of automobile was not in vioAmedeo Sbrega for negligence in allowing | lation of condition in owner's policy that inwater pipes to become defective and leaky. surer should not be liable if, at time of loss, From order of the appellate division, deciding there was other insurance. on report that there was reversible error in 2. Insurance en 282(6)-Fire policy on mortthe district court, plaintiff appeals. Appeal

gaged automobile not effective, where uncondismissed.

ditional ownership condition precedent. J. G. Annala, of Fitchburg, for appellant. Fire policy.on automobile, stating that it

was condition that it should be null and void RUGG, C. J. This case originated in the if interest be other than unconditional and First district court of Northern Worcester. sole ownership, never went into effect, where

at time of issue automobile was mortgaged; Rulings of law made at the trial were re

St. 1907, c. 576, $ 21, now Gen. Laws, c. 175, 3 ported for review. The appellate division

186, not applying. of the Western district reversed one of those rulings and ordered that a new trial be had

Report from Superior Court, Hampden of the whole case. The plaintiff appealed County; N. P. Brown, Judge. from that decision and has entered the appeal in this court without awaiting the re

Action of contract by Clinton A. Harvey sult of the new trial in the district court thus against the Pawtucket Mutual Fire Insurordered by the appellate division.

ance Company to recover for total loss of The case is entered prematurely in this automoblie on insurance policy. On report. court. There must be a final and complete Judgment for defendant. decision upon the merits of the whole con Morrissey & Gray, of Springfield, for plaintroversy, so that, if there should be affirm- tiff. ance here, the district court would have noth C. M. Thayer, F. C. Smith, Jr., and G. A. ing to do but to execute the judgment ren. Gaskill, all of Worcester, for defendant. dered. An order by the appellate division, if equivalent to a final settlement of the con PIERCE, J. This is an action of contract troversy, even though contrary to the deci- to recover for the total loss of an automosion of the judge of the district court, is suffi- bile upon a fire insurance policy. It was cient basis for immediate entry of appeal in agreed at the trial that proof of loss and all this court (Loanes v. Gast, 216 Mass. 197, 199, conditions precedent to bringing suit had 103 N. E. 473; Britton v. Goodman, 235 Mass. been complied with. 471, 126 N. E. 767), but an order by the ap [1] Under the heading “Exclusions" the pellate division for a new trial of facts in policy stated, among other conditions, “2. It the district court is not a basis for the im- is a condition of this policy that it shall mediate entry of appeal in this court. The be null and void • (c) if the interest case at bar is governed in every particular of the assured in the property be other than by Real Property Co., Inc., v. Pitt, 230 Mass. unconditional and sole ownership, or if the 526, 120 N. E. 141, where the subject is dis- subject of this insurance be or becomes encussed at large, and the authorities collected. cumbered by any lien or mortgage except as Hall Publishing Co. v. McLaughlin, 230 Mass. stated in warranty No. 3, or otherwise en534, 120 N. E. 69; Georgia Railway & Power dorsed herein." At the time the insurance Co. v. Decatur, 262 U. S. 432, 437, 43 Sup. policy issued, one Austin held a mortgage Ct. 613, 67 L. Ed. 1065; Arnold v. Guimarin upon it which had been given by the plain& Co., 263 U. S. 427, 434, 44 Sup. Ct. 144, tiff sometime previously. Austin, without the 68 L Ed. 371. Illustrations of correct prac- knowledge of the plaintiff, had insured his tice in accordance with the principles de- l mortgage interest with an insurance com

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pany other than the defendant company. Exceptions from Superior Court, Worcester This policy was in force at the time of the County; C. T. Callahan, Judge. fire and has not been paid. This insurance

Action of contract by Simon G. Friedman of the mortgagee was not in violation of the against Harry Ballard to recover commiscondition that the company shall not be liable sion for his services in procuring purchaser “(b) if at the time a loss occurs there be any for certain real estate owned by defendant. other insurance

which would at- Verdict directed for defendant, and plaintach if this insurance had not been effected.” tiff brings exceptions. Exceptions overruled. It was an insurance obtained by the mortgagee on his own interest in another insur Simon G. Friedman and John Henry Meaance company and it could not have been gher, both of Worcester, for plaintiff. controlled or prevented by the plaintiff. Rufus B. Dodge and Amos T. Saunders, Wheeler v. Watertown Fire Ins. Co., 131 both of Worcester, for defendant. Mass. 1, 8, 9. [2] Whether the words “the automobile de

PIERCE, J. This is an action of conscribed is fully paid for by the assured and is not mortgaged or otherwise encumbered, commission” for the sale of certain real es

tract to recover of the defendant the "usual except as follows" contained in paragraph tate owned by the defendant, in the city of 3 of the “Warranties" are to be treated as

Rochester, in the state of New York, to one a declaration of fact by the assured, or as

Rae Cohen. It appeared in evidence, and a question of the insurance policy to be an- the jury would have been warranted in findswered by the assured in a blank space be- ing, that the plaintiff was employed by the neath these words, and whether if not a dec- defendant to sell the property of the defendlaration of fact an answer thereto was

ant described in the plaintiff's declaration. waived by the issuance of the policy with. The only question for decision, on the exout such an answer, need not be determined; ceptions taken to the order of the judge that because in any event it sufficiently appears the jury find for the defendant, is whether, that the interest of the assured in the property insured was other than that of uncon- upon the undisputed testimony of witnesses

for the defendant and upon the testimony ditional and sole ownership. The defect in of the plaintiff, as matter of law it appeared the plaintiff's title went to the essence of the that during the negotiations for the sale of contract of insurance and the policy under the defendant's property the plaintiff was its conditions never took effect. Ballard v. employed by Cohen (the purchaser of the Globe & Rutgers Fire Ins. Co., 237 Mass. defendant's property) to sell or exchange 34, 129 N. E. 290; Dawsons, Ltd., v. Bonnin, property of Cohen in Clinton, which was con[1922] 2 A. C. 413. The provisions of St. veyed by Cohen to the defendant in exchange 1907, c. 576, § 21, now G. L. c. 175, § 186, are for the land of the defendant in Rochesnot applicable where as here sole and un- ter, N. Y. conditional ownership is a condition preced

It appeared by the uncontradicted testient to the creation of the alleged contract.

mony of witnesses, that Cohen, while the Ballard v. Globe & Rutgers Fire Ins. Co., su- negotiations with the defendant were pendpra.

ing, asked the plaintiff to represent him as The verdict for the defendant was prop

an attorney in drawing up the agreement of erly ordered; and judgment is to be entered sale which was to be executed in writing on for the defendant in accordance with the August 21, 1920; that Cohen further reterms of the report.

quested the plaintiff to go with him to RoJudgment for the defendant.

chester to look at the defendant's property and offered to pay the plaintiff a certain

sum for his service as an attorney; that FRIEDMAN V. BALLARD.

the plaintiff declined the offer of Cohen to

act as his attorney, stating that he wanted (Supreme Judicial Court of Magsachusetts. a commission for bringing the parties (CoWorcester. Oct. 18, 1924.)

hen and the defendant) together, if the 1. Brokers Cw65(4)-One acting as broker for agreement for the exchange of their respec

both parties in exchange of property not en- tive properties was effected; that thereafttitled to commission.

er the plaintiff again declined to act as an Where plaintiff in acting for two parties in attorney in the matter, claiming that he was exchange of properties was not mere middle- the broker and was going to claim a commisman, but broker for each, held, that he was not sion. It further appeared that the plaintiff entitled to commission from defendant.

brought an action against Cohen for serv2. Brokers Em 65(4)-One cannot act as bro. ices and disbursements, and also for a comker or agent of both parties exchanging land. mission which the plaintiff claimed was due

Broker could not act for each of two parties him for his services from the sale from exchanging lands and recover commission from Cohen to the defendant of the Clinton propboth, as matter of public policy.

erty. It further appeared that subsequently, ww For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(146 N.E.) in October, after the transfer had been made by town, though its operation was ultra vires; of the respective premises, Cohen paid the no relation of principal and agent or master and plaintiff $1,000 in full for all claims the servant arising between selectmen and driver. plaintiff had against the Cohens. At the trial, in response to questions by

Exceptions from Superior Court, Worcesthe judge, in substance, the plaintiff testi- ter County; R. W. Irwin, Judge. fied that his claim for a commission against

Action of tort by Frank Ducey against Cohen was confined to the Clinton property; George J. Brunell and others, to recover perthat he did not have any agreement with sonal injuries sustained by plaintiff, while Cohen for a commission before the exchange traveler on public highway, through being was made; that he did have a discussion struck by automobile ambulance. Court rulwith Cohen concerning a commission before ed for plaintiff, and defendant brings excepthe exchange was made and tried to estab- tions. Exceptions sustained. lisb a claim for a commission if the exchange went through; that the claim was R. B. Dodge and A. T. Saunders, both of made for a commission on Friday, August Worcester, for plaintiff. 20, before the agreement was signed on Sat J. A. Love and F. H. Berger, both of Web urday, August 21; and that when the par- ster, for defendants. ties came together he intended to charge a commission to Cohen if the exchange went

RUGG, C. J. This is an action to recover through.

[1, 2] These facts established that the compensation for personal injuries sustained plaintiff believed that he, as agent for Cohen by the plaintiff while a traveler on a public and for the defendant, was entitled by rea- way through being struck by an automobile son of his relation to the transaction to re- ambulance owned by the town of Webster ceive from each of them as sellers of real and driven by William G. Haggerty. The estate the usual commission. As the broker plaintiff brought an action against the town, or agent of the diverse interest of his clients, on this same cause of action, in which it was it is evident he could not serve both masters decided that there could be no recovery be with equal fidelity. As a matter of public cause the operation of the ambulance was

ultra vires the town. Ducey v. Webster, 237 policy, an agent so circumstanced is not permitted to recover a commission. Sullivan v.

Mass. 497, 130 N. E. 53. Tufts, 203 Mass. 155, 89 N. E. 239;, Tracy facts in substance as follows: The present

The case is now submitted upon agreed v. Blake, 229 Mass. 57, 118 N. E. 271. do not think the evidence warranted the defendants were the selectmen of the town of

Webster in 1917 at the time when the plainjury finding that the plaintiff was a mere middleman, as defined in Walker v. Osgood, tiff sustained his injuries. They had no in

terest in the ambulance except as officers of 98 Mass. 348, 93 Am. Dec. 168.

the town acting pursuant to certain votes. Exceptions overruled.

The ambulance was purchased in accordance with a vote of the town passed in 1911 from

which it appears that a part of its price DUCEY V. BRUNELL et al.

was contributed from private sources, the

rest having been paid by the town. Votes (Supreme Judicial Court of Massachusetts.

were passed by the town appropriating monWorcester. Oct. 18, 1924.)

ey for the maintenance of the ambulance, 1. Towns 31 - Select men required to take declaring that its use should be free to in

care of ambulance owned by town when habitants of the town, and upon charge to board of health declined.

inhabitants of an adjacent town. It was unUnder St. 1920, c. 591, § 11, now Gen. Laws, der the control of the board of health of the c. 40, § 3, selectmen of town owed duty to take town prior to 1917. In that year, before the care of ambulance when board of health declin- injury to the plaintiff, it was by vote of that ed to have anything further to do with it.

board turned over to the board of selectmen. 2. Towns 31-Officer liable for tort of ac

The latter board passed votes to receive the tive misfeasance personally committed, though ambulance, to house it in a specified garage, municipality not liable.

and to appoint a first driver and an assistant Public officer is liable for any tort of ac- driver, the latter being Haggerty, who was tive misfeasance committed by him while acting operating it at the time the plaintiff was in discharge of his ministerial duties as such, injured. Votes were passed by the selectand not as special agent of municipality, though men as to free use of the ambulance by citimunicipality may not be liable.

zens of the town, as to charges for its use 3. Towns em 31-Town selectmen not individ- to neighboring towns and as to pay of the

ually liable for negligence of driver of town drivers of the ambulance. It also was voted ambulance, whose operation ultra vires. that all ambulance calls be made direct to

Selectmen of town were not individually lia- the drivers and that all out of town calls ble for negligence of driver of ambulance owned | be made by a responsible person. At the time

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of the injury to the plaintiff, the ambulance , isterial duties as such and not as the spewas returning from a trip for the transfer cial agent of the municipality, although the of a patient to a hospital in the city of Wor- municipality in the absence of special statcester. Haggerty was paid by the town of ute may not be liable therefor. Moynihan v. Webster.

Todd, 188 Mass. 301, 74 N. E. 367, 108 Am. It was conceded that the plaintiff was in St. Rep. 473; Barry v. Smith, 191 Mass. 78, the exercise of due care and that his inju- 77 N. E, 1099, 5 L R. A. (N. S.) 1028, 6 Ann. ries were caused by the negligence of the Cas. 817; Johnson v. Somerville, 195 Mass. driver of the ambulance. The amount has 370, 81 N. E. 268, 10 L. R. A. (N. S.) 715; been agreed, for which judgment is to be Pinkerton v. Randolph, 200 Mass. 24, 85 N. entered if the plaintiff is entitled to recov. E. 892; Smith v. Gloucester, 201 Mass. 329, er. The only question for decision is wheth-333, 87 N. E. 626; Bolster v. Lawrence, 225 er the defendants are liable for the negli- Mass. 387, 114 N. E. 722, L. R. A. 1917B, gence of the driver of the ambulance on the 1285; Burroughs v. Rane, 241 Mass. 1, 134 occasion in question.

N. E. 361; Brown v. West, 75 N, H, 463, 76 [1] The defendants as selectmen do not ap- Atl. 169. pear to have given any specific directions as [3] The driver of the ambulance was in no to the use of the ambulance or as to its oper- sense the servant of the defendants or in ation. They did nothing by way of personal their employ. He did not act in their be misfeasance contributing to the injury of the half or on their credit. He did not receive plaintiff. They did not buy the ambulance. his pay from them but from the town. The They found it as a thing of value, title to relation of principal and agent did not arise which was in the town. Even before the between the selectmen and the driver of definite mandate of St. 1920, c. 591, $ 11, now the ambulance even though there was lack G. L. C. 40, § 3, to the effect that all real of authority on the part of the selectmen to and personal property of the town shall be bind the town with respect to the ambulance. under the control of selectmen in the ab- Public officers are not responsible under the sence of other provision by law or vote, the doctrine of respondeat superior for the misselectmen were required under their general conduct of those employed in the performduty to care for property of the town not in ance of duties, which inure in no sense for the custody of other town officers by law, the private benefit of such officers. The per. vote or custom. It therefore was their duty sons guilty of positive acts of misfeasance to take care of the ambulance when the are liable. board of health declined to have anything The defendants committed no' act of perfurther to do with it. There is nothing in sonal misfeasance with respect to the plainthis record to warrant an inference that the tiff. The wrong against the plaintiff was not defendants intended to act with respect to the tort of the defendants, or of their servant the ambulance in any private capacity or in or agent, therefore they cannot be held liaany other relation than as selectmen. There ble to the plaintiff. The case at bar is gove is nothing to indicate that in truth they had erned by Brown v. Wimpenny, 239 Mass. 278, any purpose other than to serve the public 132 N. E. 43; Skerry v. Rich, 228 Mass. 462, interest, or that they had any personal mo- 117 N. E. 824; Lajoie v. Milliken, 242 Mass. tive. They had no evil intent against the 508, 136 N. E. 419; Witham v. Gregory & plaintiff. The driver of the ambulance at Read Co., 243 Mass. 595, 137 N. E. 752. See the time of the plaintiff's injury was not be- Roosen v. Peter Bent Brigham Hospital, 235 ing paid by the defendants. He was not act Mass. 66, 71, 72, 126 N. E. 392, 14 A. L. R. ing under their personal direction. He was 563. driving the ambulance in his own way and The present case is distinguishable from according to his own conceptions of his ob- Wamesit Power Co. v. Allen, 120 Mass. 352, ligations. No one of the defendants were Brigham v. Edmands, 7 Gray, 359. Nowell y. present at the time of the plaintiff's injury, Wright, 3 Allen, 166, 80 Am. Dec. 62, and like or had given any order respecting the errand authorities, because in all those decisions the on which the ambulance was at that time public officers had personally directed the being used. Apparently the driver received performance of the specific wrong of which the call requesting the use of the ambulance complaint was made. Those authorities as and followed his own judgment in respond- well as Moynihan v. Todd, 188 Mass. 301, 305, ing to it and selecting his own route. Plain-| 74 N. E. 367, 108 Am. St. Rep. 473, in their ly the defendants had no private or personal application to the facts of the case at bar interest in the ambulance.

hold that the driver of the ambulance would [2] A public officer is liable for any tort of be liable to the plaintiff but that the defend. active misfeasance personally committed by ants are exonerated. him while acting in the discharge of his min Exceptions sustained.

(145 N.E.)

drove away without making known his name, COMMONWEALTH V. NURMI. residence and number of his motor vehicle. (Supreme Judicial Court of Massachusetts.

The defendant offered evidence tending to Worcester. Oct. 21, 1924.)

show that he saw a little girl run out from

behind a tree toward his automobile; that he 1. Municipal corporations Ow707-Motor vehi: felt no jolt of the car and did not know cle operator charged with injury without that he had collided with her; that he making known name held not entitled to di- stopped his car within 20 feet and got out rected verdict.

and went back to where he had seen her One charged with colliding with and caus: leave the sidewalk; that she had disaping injury to pedestrian without stopping and making known his name, residence, and number peared and there was no indication that she of his motor vehicle, under Gen. Laws, c. 90, was injured or that he had collided with $ 24, held not entitled to directed verdict of her; that some one in a group farther down not guilty, though he testified that he did not the street waved his hand to him in such a know that pedestrian actually collided with way as to indicate that no harm had resultcar, but stopped and went back and pedestrian ed, and shouted “All right” or “Go on"; had disappeared.

that he went back to his automobile and 2. Municipal corporations Ow707–Testimony

drove away.

He further testified that he automobilist would have reported to police thought the child did not collide with the station, if he knew of injury, irrelevant. automobile,

In prosecution under Gen. Laws, c. 90, $ At the close of the evidence the defend24, for injuring child without stopping and ant filed a motion that the jury be instructmaking known name, residence, and number of ed to return a verdict of not guilty, which motor vehicle, question to defendant, “If you was denied and the defendant excepted. had known that the little girl was injured The defendant also excepted to the excluwould you have gone across the street and reported to the police station?” was not rele- sion of the answer to a question put to him vant or material.

by his counsel, and to the refusal of the

court to instruct the jury as requested by Exceptions from Superior Court, Worces

him, ter County; G. H. W. Hayes, Judge.

(1) G. L. c. 90, $ 24, makes it a criminal

offense for a person who operates a motor Abel Nurmi was found guilty of colliding vehicle upon a way, and who without stopwith and causing injury to a person while ping and making known his name, residence operating a motor vehicle without stopping and the number of his motor vehicle, goes and making known his name, residence, and away after knowingly colliding with or othmotor vehicle number, and brings exceptions. erwise causing injury to a person. The de Exceptions overruled.

fendant admits that he was operating his C. B. Rugg, of Worcester, E. W. Baker, automobile on the highway on the day in of Fitchburg, and E. G. Norman and R. question, and there was evidence that it Nelson Molt, both of Worcester, for the Com-collided with and caused injury to the girl, monwealth,

and that thereafter he stopped his car at Anderson & Anderson, of Mtchburg, for some distance away from where the collision defendant.

occurred; but he does not contend that he

made known his name, reside:ice or number CROSBY, J. This is a complaint charg- of his motor vehicle. His testimony that he ing that the defendant on April 21, 1924, saw the girl run out from behind a tree while operating a motor vehicle, did go away toward his automobile, that he stopped with. after knowingly colliding with and causing in 20 feet, and got out and went back injury to a person, without stopping and to where he had seen her “dash off the sidemaking known his name, residence and num- walk," and that she had disappeared, tober of his motor vehicle.

gether with the evidence that she At the trial in the Superior Court, the knocked down and immediately got up and Commonwealth offered evidence tending to ran across the street, warranted the jury in show that while the defendant was operating finding that the defendant knew that he had his automobile in Gardner, one Regina collided with her. If he had knowledge of Chamberlain, a girl eight years old, ran such collision, it was his duty under the statout from behind a tree and collided with, ute not only to stop, but also to make known and was struck by, the right front mudguard his name, residence, and number of his moof the defendant's car, and thereby received tor vehicle. Commonwealth v. Horsfall, 213 a personal injury; that the girl was knocked Mass. 232, 100 N. E. 362, Ann. Cas. 1914A, down but immediately got up and ran across 682; State v. Verrill, 120 Me. 41, 112 Atl. the street; that the defendant stopped his 673; State v. Sterrin, 78 N. H. 220, 98 Atl. car within 80 feet of the place of collision; 482; People v. Curtis, 217 N. Y. 304, 112 N. that he got out and stood on the running E. 54, Ann. Cas. 1917E, 586. As it could board, looked back, and a few minutes later I have been found that he knowingly collided

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