PER CURIAM. [1, 2] This action was I of upper piazza, and that it collapsed, because originally in contract or tort. The plain- repairs were negligently made. tiffs waived the count in contract and relied 4. Appeal and error 1078(4) – Exceptions on the count in tort alone. That count al to admission of evidence not argued are leged conversion of a chattel. There was waived. evidence tending to show a sale of that chat

Exceptions to admission of evidence not tel by the plaintiffs to the defendant on argued are waived. credit. There was a general finding in favor of the defendant. Denial of the plaintiffs' Exceptions from Superior Court, Worces. requests for rulings, numbered 1 and 2, to ter County; R. 'W. Irwin, Judge. the effect that the plaintiffs were entitled

Action of tort by Margaret Sullivan to judgment, presents no error of law. The against Robert Northridge for personal in. credibility of the witnesses was entirely for juries sustained by falling of roof of piazza the trial judge. Commonwealth v. Russ, 232

on premises owned by defendant, and in Mass. 58, 70, 122 N. E. 176; Lindenbaum v.

which plaintiff's father occupied tenement. New York, New Haven & Hartford Railroad, Verdict for plaintiff, and defendant excepts. 197 Mass. 314, 323, 84 N. E. 129. If he be- | Exceptions overruled. lieved the testimony of the defendant, the plaintiffs were not entitled to recover. Re

J. C. Mahoney, of Worcester (J. J. Moyni. quest 3 was posited upon an alleged fact han, of Worcester, on the brief), for plainwhich the trial judge found did not exist.

tiff. It was denied rightly:

C. W. Proctor, of Worcester (J. C. McDon[3] Whether any amendment changing the ald, of Worcester, on the brief), for defend. form of action to contract ought to be al

ant. lowed in the circumstances here disclosed is a matter within the jurisdiction of the trial

BRALEY, J. (1) The plaintiff while in court. Johnson's Case, 242 Mass. 489, 495, the exercise of due care suffered personal 136 N. E. 563, and cases there collected.

injuries from the fall of a piazza roof con[4] This appeal appears to be frivolous, nected with a two-tenement brick building and double costs are awarded against the owned by the defendant's testator, who died appellants from the time when the appeal after the first trial, where a verdict in his to this court was taken. G. L. c. 211, § 10. favor was directed, which was set aside and

Order dismissing report affirmed, with a new trial ordered in Sullivan v. Northdouble costs.

ridge, 246 Mass. 382, 141 N. E. 114. The plaintiff's father, of whose family she was a member, hired and occupied the upper tenement and the jury would have been

warranted in finding on the evidence that the SULLIVAN V. NORTHRIDGE.

fall of the roof was caused solely by the

separation of the supporting joists or raft. (Supreme Judicial Court of Massachusetts.

ers at the place where they joined the build. Worcester. Nov. 25, 1924.)

ing, and that when examined after the ac. 1. Landlord and tenant Omw 169(11) Land.cident the ends of some of the joists aplord's control of roof held for jury.

peared to be water soaked and rotten. The Question of landlord's control over roof premises, including the roof, at the beginof second story piazza, which fell on tenant's ning of the tenancy appeared to be in sound daughter, properly held for jury, in view of evi-condition, but about eight or ten months bedence that landlord controlled upper piazza roof fore the collapse Northridge repaired the for benefit of tenants.

entire building. The eaves troughs on the 2. Trial em 260(1)-Requested instruction ful- main building, and some eaves troughs bely covered by given instructions.

tween the main roof and the piazza roof, Error cannot be predicated on refusal of and the water spouts which lead from the requested instruction, substance of which was eaves troughs to the ground were removed sufficiently covered by given instructions.

and not replaced. The questions, whether 3. Trial Omm 296(3)-Instruction on landlord's the changes caused the roof at the place of

duty to make repairs held not misleading nor the repairs to leak, and whether water perinconsistent, in view of other paragraphs. colated or circulated around the joists or

In action by daughter of tenant of second rafters where they rested on the building, floor for injuries from fall of roof of second were for the jury It also could be found story piazza, instruction that, while landlord that, if the repairs had been properly made, was not required to make repairs unless con

the joists or rafters would not have decayed, tract required him to do so, yet, if he made and the roof would not have fallen. The them in careless or negligent manner, then he was liable for repairs made, if it resulted in in- defendant contends that the roof fell because jury to another, was neither misleading nor in- of an unprecedented accumulation of snow jurious in view of instruction that there could and ice, which he could not anticipate. The be no recovery unless landlord retained controll judge submitted this question to the jury

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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(145 N.E.) under instructions that, if the accident was, does it in a careless manner, unskillful work, thus caused, the plaintiff could not recover. or in any way did that which might be Salisbury v. Herchenroder, 106 Mass. 458, deemed negligent, then he is liable for the re8 Am. Rep. 354. It does not appear that pairs he made, if it results in injury to Northridge had agreed with the tenant to another," was misleading and erroneous. make repairs and, as the judge instructed If it is treated separately, and confined to the jury in accordance with the defendant's the tenement let to the plaintiff's father, it second and third requests, there being no was erroneous, for reasons previously stated. evidence of gross negligence, the plaintiff It should not, however, be separated from could not recover unless the piazza roof the context. Adams v. Nantucket, 11 Allen, was in his possession and control, and a ver- 203; Connors Bros. Co. v Sullivan, 220 dict for the defendant was ordered on the Mass. 600, 607, 108 N. E. 503; Draper v. second count of the declaration. Bergeron v. Cotting, 231 Mass. 51, 65, 120 N. E. 365; Forest, 233 Mass. 392, 124 N. E. 74; Sullivan Cronin v. Boston Elevated Railway, 233 v. Northridge, supra. The plaintiff in the Mass. 243, 246, 123 N. E. 686. The judge first count and in her answer to the defend- said in the paragraphs immediately precedant's sixteenth interrogatory, rested her ing where he referred to the retention of right of recovery on this ground. As said control by Northridge: by Mr. Justice De Courcy in Sullivan v.

“This case involves a question of the defend. Northridge, supra:

ant's duty to the tenants, the Sullivans, and “The controlling question in the case is members of the family in the two tenement whether this piazza roof was included in the buildings. Did Mr. Northridge retain in himpremises let to the second floor tenant, or self the control of any portion of the building? whether the defendant retained the control, It has been argued upon the testimony and consequently owed the plaintiff, as a mem- ; that the landlord did not retain control of any ber of the tenant's family, the duty of using part of the premises. * If that piazza reasonable care to keep it in such condition as roof was singly and solely * a roof only it apparently was in at the time of the letting, to the upper part of the piazza, then the deas in tbe case of common entrances, halls, and fendant would not be liable. The plaintiff constairways."

tends, and it is for you to say, whether or not

the roof of that piazza served the purpose of The evidence was conflicting. But, if being a roof of both piazzas. * Was it the jury believed the plaintiff's witnesses, in control of the owner of the property, the dethe main roof, which was distinct from the fendant here?” “Whether or not he (the landpiazza roof, overhung the piazza roof 12 or lord) withheld or retained control of any por18 inches, and “the piazza roof carried water tion of the building is largely a question of

fact. off the top piazza, and shed the water from It may not be pronounced by the court the lower piazza.” They could further find served control and acted as if he had control


as a matter of law, but whether or not he rethat the piazza roof in question was con- and that his conduct treated it as in his custrolled by Northridge for the benefit of his tody is for the jury to determine. Did the deseveral tenants. Sullivan v. Northridge, fendant Northridge make repairs to the roof?” supra.

The motion for a directed verdict was denied rightly.

The instructions excepted to are to be [2] The sixth request, that “the only evi- read, not only with the quoted context, but dence of the negligence of the defendant is with the instruction given at the close, that: the fact that he took down a water spout

"If the jury find that the roof which fell and eaves trough on or near the piazza roof some eight or ten months before the accident, only then the plantiff can recover only upon

* is a protection for the upper piazza, and in order for the plaintiff to recover the proof that the defendant's servant or agent jury must find from a preponderance of the was guilty of gross negligence in the repairing evidence that the taking down of the eaves of said roof. * * There is no evidence of trough and waterspout caused the wood of gross egligence in the case, and I so rule." the roof to become rotten, so that it fell because of such rotten condition, and that [4] If so construed they were neither misthis rot developed between the time of the leading nor inconsistent. Adams v. Nantaking down of the eaves trough and water- tucket, supra; Connors Bros. Co. v. Sullispout, and the time of the falling of the van, supra; Sayles v. Quinn, 198 Mass, 492, piazza roof,” was sufficiently covered by the 496, 82 N. E. 713. The jury were plainly instructions.

told that the plaintiff, on whom the burden [3] The defendant also excepted to the rul- of proof rested, could not recover unless ing relating to the duty of the landlord to Northridge retained control of the upper make repairs. It is contended that the in- piazza, and that it collapsed because the restruction, “And while the landlord is not pairs were negligently made.

The exceprequired to make repairs unless the con- tions to the admission of evidence not having tract required him to do so, yet, nevertheless, been argued are treated as waived. if he undertakes and does make repairs, and Exceptions overruled.

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Judgments for plaintiffs, and defendant er. KENYON V. VOGEL.

cepts. Exceptions as to judgment of Flora

L. Kenyon overruled only on condition of DIMICK V. SAME.

remittitur; exceptions as to case of Nelson (Supreme Judicial Court of Massachusetts

A. Dimick overruled.
Norfolk. Nov. 26, 1924.)

F. J. Squires, of Norwood, for plaintiffs. 1. Evidence 220(2)-Evidence that chauf.

W. P. Murray, of Boston, for defendant. feur was defendant's servant properly admitted.

BRALEY, J. [1] These are actions of tort, Where defendant, not being under arrest in which the plaintiff in the first action re for violating G. L. c. 90, 88 12, 17, relating to covered damages for personal injuries, and obligations of owners of automobiles in em- in the second action the plaintiff recovered ployment of chauffeurs or in limitations of damages for injuries to his automobile. The speed, remained silent when bis chauffeur stat- plaintiff Dimick on Sunday, May 18, 1920, ed at police station that he worked for defend. I was driving his own automobile on a public ant, such evidence was properly admitted to show that chauffeur was defendant's servant. way in the town of Norwood, in which the

plaintiff Kenyon was also riding at his in2. Ev ncem 220(2)-Request that there vitation, when it came in contact with the

no inference from defendant's silence automobile of the defendant, in which he when chauffeur stated he was defendant's was riding, driven by one Huskins, who was servant rightly denied.

not specially licensed. G. L. C. 90, $ 12. The Where defendant not under duress remained record states that both cars were going in silent when chauffeur stated he was defendant's the same direction, and that the right-hand servant, request that there could be no inference drawn by jury against him because of front portion of the defendant's car came testimony that he said nothing was rightly de- into collision with the left-hand rear portion nied.

of the plaintiff's car, causing the injuries al. 3. Appeal and error w215(1)-Question of The defendant, while admitting there was

leged. But no further description appears. erroneous instruction not open for first time in Supreme Court.

evidence warranting the jury in finding that Question whether jury were erroneously in

the plaintiff's car was properly operated, and structed, on issue of defendant's liability, is not that the defendant's car was driven at excesopen for first time in Supreme Court.

sive speed by Huskins, who was under the

influence of intoxicating liquor, contends that 4. Damages 46—Husband and wife w151 evidence tending to show that Huskins was (7)-Wife may bind own estate for hospital the defendant's servant was improperly adexpenses, and recover in personal injury ac

mitted. tion.

After the accident the defendant

and Huskins went to the Norwood police Under G. L. c. 209, § 2, married woman living with her husband could bind herself per of the defendant asked Huskins for whom

station where the chief of police in presence sonally for hospital and medical expenses necessary to treat her physical sufferings caused he worked, and Huskins replied that on that by defendant's negligence, and recover amount Sunday he was working for the defendant. as damages.

During the colloquy the defendant not only 9 Damages Om46– Husband and wife 19

remained silent, but when asked “why he did (15)-In absence of evidence that wife con.

not drive his own car," answered "that he tracted for medical services individually, hus. had to have Huskins because his car went band solely responsible, and she could not re- too fast.” The defendant was not under arcover amount thereof in personal injury ac rest for violating G. L. c. 90, 88 12, 17, retion.

latirg to obligations of owners of automobiles In absence of evidence that married woman in the employment of chauffeurs, or in the living with her husband contracted for medical limitations of speed. And even it contraservices individually, if liability existed therefor, dicted by the defendant this evidence was her husband was solely responsible, and she could not recover amount thereof in personal plainly admissible, for reasons stated in Warinjury action.

ner v. Fuller, 245 Mass. 520, 139 N. E. 811,

where the authorities are collected. See, 6. Appeal and error on 1140(2)-Error affect- also, Commonwealth v. Spiropoulos, 208

ing measure of compensation only cured by Mass. 71, 74, 94 N. E. 451 ; Commonwealth v. remittitur.

Anderson, 245 Mass. 177, 139 N. E. 436. Where error affects only measure of com

[2-6] The sixth request, "There can be no pensation, it may be cured by remittitur.

inference drawn by the jury against this de

fendant, because of the testimony that the Exceptions from Superior Court, Norfolk defendant said nothing after Huskins stated County; G. A. Flynn, Judge.

in the presence of Vogel that he was employ. Separate actions in tort by Flora L. Ken- ed by the latter," was denied rightly. It is yon and Nelson A. Dimick against Louis L. further contended that the jury were erroVogel to recover respectively for personal neously instructed on the issue of liability, injuries and for injuries to automobile because there was no recognition of the doc

em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(145 N.E.) trine of proximate cause. But no exceptions sport, which states that due execution of the were taken to the instructions, nor was the bond and proper demand for the return of attention of the judge called to the omission. the replevied property were admitted. At The question is not open for the first time in the trial of this action to recover on the this court. Brigham v. Wentworth, 11 Cush. bond, the defendants offered to show that 123, 126. The plaintiff Mrs. Kenyon, al- the automobile replevied, when the writ of though a married woman living with her replevin was served, was not "the property husband, could bind herself personally for of the present plaintiff, but was the property the payment of hospital expenses, and for of another, and was taken on May 26, 1921, medical attendance made necessary for the from a person who had acquired supposed treatment of her physical sufferings caused title to it from the defendant, Arnold, prior by the defendant's negligence, and could re- thereto.” The exclusion of this evidence precover the amount as damages. Braun v. sents the question to be decided. Bell, 247 Mass. 437, 142 N. E. 93; G. L. C. If the right of possession of the defendant 209, $ 2. But there was no evidence that the in the original action were the only question bill for medical services of Dr. Brennan there involved, and the title of the defendant amounting to $383 was contracted by her in was not put in issue, the present defendants dividually, and at common law if any liabil in the suit on the bond would not be barred ity exists her husband is solely responsible from showing that the plaintiff was not the The tenth request that she could not recover true owner of the automobile. Davis v. the amount should have been given. May- Harding, 3 Allen, 302; Barry v. O'Brien, 103 hew v. Thayer, 8 Gray, 172; Jordan Marsh Mass. 520; Leonard v. Whitney, 109 Mass. Co. v. Hedtler, 238 Mass. 43, 130 N. E. 78. 265, 269; Easter y. Foster, 173 Mass. 39, 53 The error however only affects the measure N. E. 132, 73 Am. St. Rep. 257. But it was of compensation. If the plaintiff Kenyon agreed that the original action "was tried within thirty days after rescript remits the * upon its merits"; that the question sum of $383, the entry will be exceptions of title was raised and both parties introoverruled. If no remittitur is filed, the en- duced evidence bearing thereon, although the try will be exceptions sustained, the new particular evidence was offered for the first trial to be limited to damages. The error time at the trial on the bond. The title to however does not affect the plaintiff Dimick, the automobile having been put in issue and and in his case the exceptions are overruled. determined in favor of the defendant in the So ordered.

replevin action, the judgment is conclusive against the defendants in the action on the bond. See Leonard v. Whitney, supra; Eas

ter v. Foster, supra; Smith v. Mosby, 98. COHEN & HAYMOND, Inc., V. ARNOLD

Ind. 445. “When title to the property in diset al.

pute has been put in issue and made the sub

ject of judicial inquiry, the judgment ren(Supreme Judicial Court of Massachusetts. dered thereon against the plaintiff in reHampden. Nov. 24, 1924.)

plevin is indeed final and conclusive in all Principal and surety w 145(1)-Judgment de- subsequent litigation. It cannot be opened termining title held conclusive in action on in an action on the bond, at the hearing in replevin bond.

chancery to ascertain for what sum execution Where title to automobile was put in issue shall issue. It is too late, in order to prein replevin action and determined in defendants' vent the entry of judgment for a return, or favor, judgment therein was conclusive against to defeat a recovery on the bond, to allege defendants in action on replevin bond.

and prove facts affecting the title." Leonard

V. Whitney, supra. As we construe the reReport from Superior Court, Hampden County; N. P. Brown, Judge.

port, the title of the plaintiff in this action

was determined in the original action when Action on replevin bond by Cohen & Hay- that case was tried. In our opinion the demond, Inc., against A. H. B. Arnold and oth- fendants are bound by the former judgment. ers. Submitted on report from superior

It was also agreed that the plaintiff's damcourt. Judgment for plaintiff.

ages, if any, were $700. We need not thereBallard & Weston, of Springfield, for plain- fore consider whether the evidence offered tiff.

was material on the question of damages. D. H. Fulton, of Boston, for defendants. See Leonard v. Whitney, supra. Judgment is

to be entered for the plaintiff in the sum of CARROLL, J. This is an action on a re- $700. plevin bond. The case is before us on a re So ordered.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

SANDERSON, J. This is an action of tort MARCOTTE V. MASSACHUSETTS SECURI- for the conversion of one hundred shares of TY CORPORATION,

the preferred and twenty shares of the com

mon stock of the defendant corporation, and (Supreme Judicial Court of Massachusetts. comes to this court by report, after a findHampden, Nov. 28, 1924.)

ing for the plaintiff in the superior court.

The plaintiff purchased the stock in ques1. Corporations em 123(1)-Delivery of stock tion in 1921 from one George J. Chamberlain. certificates with forged collateral agreement to secure loan on forged signature held not Thereafter Chamberlain told him that it a pledge,

would be for the plaintiff's advantage to Where defendant corporation made loan on exchange said stock for stock in the Fisk forged signature of plaintiff to note, and re- Rubber Company, whereupon the plaintiff inceived as collateral thereto stock certificates dorsed the certificates in blank and delivered previously deposited with defendant's broker them to Chamberlain. About a week later and forged agreement pledging them as col- Chamberlain informed the plaintiff that this lateral, delivery of stock to defendant was not exchange could not be made, and suggested a pledge.

that the certificates be kept in his (Chamber2. Corporations en 149—Pledgee, paying for lain's) safe deposit box while the plaintiff

stock with check to which payee's indorse- was away. It appeared that the plaintiff was ment forged, not holder for value.

a woodchopper and that it was his custom Where defendant, in making loan od forged to go into the woods each fall. The plainnote secured by plaintiff's stock certificates, is- tiff assented to the above suggestion and the sued check in plaintiff's name, its bank had du- certificates were retained by Chamberlain. ty of determining whether signature of payee to Two days later the defendant received an check was genuine, and, when it paid check application for a loan of $500, for which on forged indorsement, defendant was not hold these certificates were to be pledged as coler for value, and, under G. L. c. 155, $ 33,

lateral. The application purported to be plaintiff could reclaim certificates.

signed by the plaintiff, but this signature 3. Customs and usages em 10-Custom to re was forged. The defendant, believing the

gard certificates of stock indorsed in blank signature to be genuine, m led to the plainas bearer certificates cannot affect rights of tiff at 22 Center street, Holyoke, Mass., care owner as against one paying no value.

of George J. Chamberlain, a letter containCustom to regard stock certificates indorsed ing a note for $500, payable in installments in blank as bearer certificates, passing by de- of $50 per month, and a collateral agreement livery, could not affect rights of owner, in case dated September 2, 1922, to be executed. The of unauthorized transfer, to recover certificate from one paying no value therefor, and who address to which this letter was sent was received it to secure payment of owner's forged the one shown on the books of the defendnote.

ant as that of the plaintiff. About Septem

ber 21, 1922, the defendant received back 4. Trover and conversion om Il-Purchase un- the note and collateral agreement, each bearder invalid pledge held conversion.

ing what purported to be the plaintiff's sig. Sale of stock by defendant at public auc- nature, both of which were forgeries. At the tion and delivery to itself as owner, when its only pretext of right to make sale was under same time the defendant received the said forged agreement and invalid pledge, was suffi- stock certificates each of which bore the cient exercise of dominion to make acts con- plaintiff's indorsement as he had written it version.

before delivering them to Chamberlain. The 5. Trover and conversion ww9(4)-No demand the note and collateral agreement were genu

defendant, believing that the signatures to necesary, where defendant, having no title, exercises dominion.

ine, mailed to the plaintiff at the same adNo demand is necessary, where defendant, dress a check for $474, payable to his order. having no title to personal property, exercises Thereafter a forged indorsement of the plaindominion over it.

tiff's name was made on the check, beneath

which Chamberlain's indorsement appeared, Report from Superior Court, Hampden and the check was collected through his County; A. R. Weed, Judge.

checking account in the Hadley Falls Trust

Company Letters demanding payment, the Action of tort by Hildevert Marcotte envelopes of which bore the return address against the Massachusetts Security Corpora- of the defendant, were mailed by it to the tion for conversion of corporation stock address of the plaintiff. None of these letowned by plaintiff. Submitted on report of ters was returned. On December 15, 1922, the superior court after finding for plaintiff. defendant sent to the same address, by regJudgment for plaintiff.

istered mail, notice that the stock would be Allen, Yerrall & Bellows, of Springfield, sold at public auction December 27, 1922, and for plaintiff.

received back a receipt signed by Chamber. Sherburne, Powers & Needham, of Boston, lain ostensibly in behalf of the plaintiff. for defendant.

The sale was duly advertised and on De em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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