(145 N.E.)

MATSON v. SBREGA.

(Supreme Judicial Court of Massachusetts. Worcester. Oct. 18, 1924.)

Appeal and error 84(1)-Appeal from appellate division, reversing rulings and order

ing new trial, held premature.

An appeal from action of appellate division

clared in Real Property Co., Inc., v. Pitt are found in Kenyon v. Suburban Realty Corp., 244 Mass. 571, 139 N. E. 172; Downey v. Levenson, 247 Mass. 358, 142 N. E. 85; Wright v. Graustein, 248 Mass. 205, 142 N. E. 797. Appeal dismissed.

CO.

of the district court reversing ruling of law HARVEY v. PAWTUCKET MUT. FIRE INS. made by district court and ordering new trial, without awaiting result of new trial in district court, was premature, as there must be final and complete decision upon merits to warrant appeal.

Appeal from District Court, Appellate Division.

Action of tort by John Matson against Amedeo Sbrega for negligence in allowing water pipes to become defective and leaky. From order of the appellate division, deciding on report that there was reversible error in the district court, plaintiff appeals. Appeal dismissed.

J. G. Annala, of Fitchburg, for appellant.

RUGG, C. J. This case originated in the First district court of Northern Worcester. Rulings of law made at the trial were reported for review. The appellate division of the Western district reversed one of those rulings and ordered that a new trial be had

of the whole case. The plaintiff appealed

from that decision and has entered the appeal in this court without awaiting the result of the new trial in the district court thus ordered by the appellate division.

(Supreme Judicial Court of Massachusetts. Hampden. Oct. 18, 1924.)

1. Insurance 336(2)-Insurance obtained by mortgagee without owner's knowledge not violation of condition as to other insurance.

Insurance obtained without owner's knowl

edge by mortgagee of automobile was not in vio-
lation of condition in owner's policy that in-
surer should not be liable if, at time of loss,
there was other insurance.
2. Insurance

282(6)-Fire policy on mort

gaged automobile not effective, where unconditional ownership condition precedent.

Fire policy on automobile, stating that it was condition that it should be null and void if interest be other than unconditional and sole ownership, never went into effect, where at time of issue automobile was mortgaged; St. 1907, c. 576, § 21, now Gen. Laws, c. 175, § 186, not applying.

Report from Superior Court, Hampden County; N. P. Brown, Judge.

Action of contract by Clinton A. Harvey against the Pawtucket Mutual Fire Insurance Company to recover for total loss of automoblie on insurance policy. On report. Judgment for defendant.

Morrissey & Gray, of Springfield, for plain

C. M. Thayer, F. C. Smith, Jr., and G. A. Gaskill, all of Worcester, for defendant.

PIERCE, J. This is an action of contract to recover for the total loss of an automobile upon a fire insurance policy. It was agreed at the trial that proof of loss and all conditions precedent to bringing suit had been complied with.

The case is entered prematurely in this court. There must be a final and complete decision upon the merits of the whole controversy, so that, if there should be affirm-tiff. ance here, the district court would have nothing to do but to execute the judgment rendered. An order by the appellate division, if equivalent to a final settlement of the controversy, even though contrary to the decision of the judge of the district court, is sufficient basis for immediate entry of appeal in this court (Loanes v. Gast, 216 Mass. 197, 199, 103 N. E. 473; Britton v. Goodman, 235 Mass. 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- mortgage interest with an insurance com

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pany other than the defendant company.
This policy was in force at the time of the
fire and has not been paid. This insurance
of the mortgagee was not in violation of the
condition that the company shall not be liable
"(b) if at the time a loss occurs there be any
other insurance *
which would at-
tach if this insurance had not been effected."
It was an insurance obtained by the mort-
gagee on his own interest in another insur-
ance company and it could not have been
controlled or prevented by the plaintiff.
Wheeler v. Watertown Fire Ins. Co., 131
Mass. 1, 8, 9.

[2] Whether the words "the automobile described is fully paid for by the assured and is not mortgaged or otherwise encumbered, except as follows" contained in paragraph

Exceptions from Superior Court, Worcester County; C. T. Callahan, Judge.

Action of contract by Simon G. Friedman against Harry Ballard to recover commission for his services in procuring purchaser for certain real estate owned by defendant. Verdict directed for defendant, and plaintiff brings exceptions. Exceptions overruled.

Simon G. Friedman and John Henry Meagher, both of Worcester, for plaintiff. Rufus B. Dodge and Amos T. Saunders, both of Worcester, for defendant.

PIERCE, J. This is an action of contract to recover of the defendant the “usual commission" for the sale of certain real estate owned by the defendant, in the city of

Rochester, in the state of New York, to one Rae Cohen. It appeared in evidence, and the jury would have been warranted in finding, that the plaintiff was employed by the

3 of the "Warranties" are to be treated as a declaration of fact by the assured, or as a question of the insurance policy to be answered by the assured in a blank space beneath these words, and whether if not a dec-defendant to sell the property of the defendlaration of fact an answer thereto was

waived by the issuance of the policy without such an answer, need not be determined; because in any event it sufficiently appears that the interest of the assured in the property insured was other than that of unconditional and sole ownership. The defect in the plaintiff's title went to the essence of the contract of insurance and the policy under its conditions never took effect. Ballard v. Globe & Rutgers Fire Ins. Co., 237 Mass. 34, 129 N. E. 290; Dawsons, Ltd., v. Bonnin, [1922] 2 A. C. 413. The provisions of St. 1907, c. 576, § 21, now G. L. c. 175, § 186, are not applicable where as here sole and unconditional ownership is a condition precedent to the creation of the alleged contract. Ballard v. Globe & Rutgers Fire Ins. Co., su

pra.

The verdict for the defendant was properly ordered; and judgment is to be entered for the defendant in accordance with the terms of the report.

Judgment for the defendant.

FRIEDMAN v. BALLARD. (Supreme Judicial Court of Massachusetts. Worcester. Oct. 18, 1924.)

ant described in the plaintiff's declaration. The only question for decision, on the exceptions taken to the order of the judge that the jury find for the defendant, is whether, upon the undisputed testimony of witnesses for the defendant and upon the testimony of the plaintiff, as matter of law it appeared that during the negotiations for the sale of the defendant's property the plaintiff was employed by Cohen (the purchaser of the defendant's property) to sell or exchange property of Cohen in Clinton, which was conveyed by Cohen to the defendant in exchange for the land of the defendant in Rochester, N. Y.

It appeared by the uncontradicted testimony of witnesses, that Cohen, while the negotiations with the defendant were pending, asked the plaintiff to represent him as an attorney in drawing up the agreement of sale which was to be executed in writing on August 21, 1920; that Cohen further requested the plaintiff to go with him to Rochester to look at the defendant's property and offered to pay the plaintiff a certain sum for his service as an attorney; that the plaintiff declined the offer of Cohen to act as his attorney, stating that he wanted a commission for bringing the parties (Cohen and the defendant) together, if the agreement for the exchange of their respective properties was effected; that thereafter the plaintiff again declined to act as an attorney in the matter, claiming that he was the broker and was going to claim a commission. It further appeared that the plaintiff brought an action against Cohen for servbro-ices and disbursements, and also for a commission which the plaintiff claimed was due him for his services from the sale from Cohen to the defendant of the Clinton property. It further appeared that subsequently,

1. Brokers 65(4)-One acting as broker for both parties in exchange of property not en

titled to commission.

Where plaintiff in acting for two parties in exchange of properties was not mere middleman, but broker for each, held, that he was not entitled to commission from defendant. 2. Brokers 65(4)-One cannot act as ker or agent of both parties exchanging land. Broker could not act for each of two parties exchanging lands and recover commission from both, as matter of public policy.

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(145 N.E.)

in October, after the transfer had been made of the respective premises, Cohen paid the plaintiff $1,000 in full for all claims the plaintiff had against the Cohens.

At the trial, in response to questions by the judge, in substance, the plaintiff testified that his claim for a commission against Cohen was confined to the Clinton property; that he did not have any agreement with Cohen for a commission before the exchange was made; that he did have a discussion with Cohen concerning a commission before the exchange was made and tried to establish a claim for a commission if the exchange went through; that the claim was made for a commission on Friday, August 20, before the agreement was signed on Saturday, August 21; and that when the parties came together he intended to charge a commission to Cohen if the exchange went through.

[1, 2] These facts established that the plaintiff believed that he, as agent for Cohen and for the defendant, was entitled by reason of his relation to the transaction to receive from each of them as sellers of real estate the usual commission. As the broker or agent of the diverse interest of his clients, it is evident he could not serve both masters with equal fidelity. As a matter of public policy, an agent so circumstanced is not per

mitted to recover a commission. Sullivan v. Tufts, 203 Mass. 155, 89 N. E. 239; Tracy v. Blake, 229 Mass. 57, 118 N. E. 271. We do not think the evidence warranted the jury finding that the plaintiff was a mere middleman, as defined in Walker v. Osgood,

98 Mass. 348, 93 Am. Dec. 168. Exceptions overruled.

DUCEY V. BRUNELL et al. (Supreme Judicial Court of Massachusetts. Worcester. Oct. 18, 1924.)

I. Towns 31-Selectmen required to take care of ambulance owned by town when board of health declined.

Under St. 1920, c. 591, § 11, now Gen. Laws, c. 40, § 3, selectmen of town owed duty to take care of ambulance when board of health declined to have anything further to do with it.

by town, though its operation was ultra vires; no relation of principal and agent or master and servant arising between selectmen and driver.

Exceptions from Superior Court, Worcester County; R. W. Irwin, Judge.

Action of tort by Frank Ducey against George J. Brunell and others, to recover personal injuries sustained by plaintiff, while traveler on public highway, through being struck by automobile ambulance. Court ruled for plaintiff, and defendant brings exceptions. Exceptions sustained.

R. B. Dodge and A. T. Saunders, both of Worcester, for plaintiff.

J. A. Love and F. H. Berger, both of Webster, for defendants.

RUGG, C. J. This is an action to recover compensation for personal injuries sustained by the plaintiff while a traveler on a public way through being struck by an automobile ambulance owned by the town of Webster and driven by William G. Haggerty. The plaintiff brought an action against the town, on this same cause of action, in which it was decided that there could be no recovery be cause the operation of the ambulance was ultra vires the town. Ducey v. Webster, 237 Mass. 497, 130 N. E. 53.

The case is now submitted upon agreed facts in substance as follows: The present defendants were the selectmen of the town of Webster in 1917 at the time when the plain

tiff sustained his injuries. They had no in

Votes

terest in the ambulance except as officers of the town acting pursuant to certain votes. 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 was contributed from private sources, the rest having been paid by the town. were passed by the town appropriating money for the maintenance of the ambulance, declaring that its use should be free to inhabitants of the town, and upon charge to inhabitants of an adjacent town. It was under the control of the board of health of the town prior to 1917. In that year, before the injury to the plaintiff, it was by vote of that board turned over to the board of selectmen. The latter board passed votes to receive the ambulance, to house it in a specified garage, and to appoint a first driver and an assistant driver, the latter being Haggerty, who was operating it at the time the plaintiff was injured. Votes were passed by the selectmen as to free use of the ambulance by citizens of the town, as to charges for its use 3. Towns 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

2. Towns 31-Officer liable for tort of active misfeasance personally committed, though municipality not liable.

Public officer is liable for any tort of active misfeasance committed by him while acting in discharge of his ministerial duties as such, and not as special agent of municipality, though municipality may not be liable.

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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 Worcester. Haggerty was paid by the town of Webster.

municipality in the absence of special statute may not be liable therefor. Moynihan v. 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, The only question for decision is wheth-333, 87 N. E. 626; Bolster v. Lawrence, 225

(145 N.E.)

COMMONWEALTH v. NURMI. (Supreme Judicial Court of Massachusetts. Worcester. Oct. 21, 1924.)

1. Municipal corporations 707-Motor vehicle operator charged with injury without making known name held not entitled to directed verdict.

One charged with colliding with and causing injury to pedestrian without stopping and making known his name, residence, and number of his motor vehicle, under Gen. Laws, c. 90, § 24, held not entitled to directed verdict of not guilty, though he testified that he did not know that pedestrian actually collided with car, but stopped and went back and pedestrian had disappeared.

2. Municipal corporations 707-Testimony automobilist would have reported to police station, if he knew of injury, irrelevant.

In prosecution under Gen. Laws, c. 90, § 24, for injuring child without stopping and making known name, residence, and number of motor vehicle, question to defendant, "If you had known that the little girl was injured would you have gone across the street and reported to the police station?" was not relevant or material.

Exceptions from Superior Court, Worcester County; G. H. W. Hayes, Judge.

Abel Nurmi was found guilty of colliding with and causing injury to a person while operating a motor vehicle without stopping and making known his name, residence, and motor vehicle number, and brings exceptions. Exceptions overruled.

C. B. Rugg, of Worcester, E. W. Baker, of Fitchburg, and E. G. Norman and R. Nelson Molt, both of Worcester, for the Commonwealth.

drove away without making known his name, residence and number of his motor vehicle.

The defendant offered evidence tending to show that he saw a little girl run out from behind a tree toward his automobile; that he felt no jolt of the car and did not know that he had collided with her; that he stopped his car within 20 feet and got out and went back to where he had seen her leave the sidewalk; that she had disappeared and there was no indication that she was injured or that he had collided with her; that some one in a group farther down the street waved his hand to him in such a way as to indicate that no harm had resulted, and shouted "All right" or "Go on"; that he went back to his automobile and

drove away. He further testified that he thought the child did not collide with the automobile.

At the close of the evidence the defendant filed a motion that the jury be instructed to return a verdict of not guilty, which was denied and the defendant excepted. The defendant also excepted to the exclusion of the answer to a question put to him by his counsel, and to the refusal of the court to instruct the jury as requested by him.

[1] G. L. c. 90, § 24, makes it a criminal offense for a person who operates a motor vehicle upon a way, and who without stopping and making known his name, residence and the number of his motor vehicle, goes erwise causing injury to a person. The deaway after knowingly colliding with or othfendant admits that he was operating his automobile on the highway on the day in question, and there was evidence that it collided with and caused injury to the girl, and that thereafter he stopped his car at

Anderson & Anderson, of Fitchburg, for some distance away from where the collision defendant.

CROSBY, J. This is a complaint charging that the defendant on April 21, 1924, while operating a motor vehicle, did go away after knowingly colliding with and causing injury to a person, without stopping and making known his name, residence and number of his motor vehicle.

occurred; but he does not contend that he made known his name, residence or number of his motor vehicle. His testimony that he saw the girl run out from behind a tree toward his automobile, that he stopped within 20 feet, and got out and went back to where he had seen her "dash off the sidewalk," and that she had disappeared, together with the evidence that she was 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 have been found that he knowingly collided For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes