action was of upper piazza, and that it collapsed, because The plain-repairs were negligently made. waived. Exceptions to admission of evidence not argued are waived. Exceptions from Superior Court, Worcester County; R. W. Irwin, Judge. PER CURIAM. [1, 2] This originally in contract or tort. 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 evidence tending to show a sale of that chattel by the plaintiffs to the defendant on credit. There was a general finding in favor of the defendant. Denial of the plaintiffs' requests for rulings, numbered 1 and 2, to the effect that the plaintiffs were entitled to judgment, presents no error of law. The credibility of the witnesses was entirely for the trial judge. Commonwealth v. Russ, 232 Mass. 58, 70, 122 N. E. 176; Lindenbaum v. New York, New Haven & Hartford Railroad, 197 Mass. 314, 323, 84 N. E. 129. If he believed the testimony of the defendant, the plaintiffs were not entitled to recover. Request 3 was posited upon an alleged fact which the trial judge found did not exist. It was denied rightly. [3] Whether any amendment changing the form of action to contract ought to be allowed in the circumstances here disclosed is a matter within the jurisdiction of the trial court. Johnson's Case, 242 Mass. 489, 495, 136 N. E. 563, and cases there collected. [4] This appeal appears to be frivolous, and double costs are awarded against the appellants from the time when the appeal to this court was taken. G. L. c. 211, § 10. Order dismissing report affirmed, with double costs. SULLIVAN v. NORTHRIDGE. (Supreme Judicial Court of Massachusetts. Worcester. Nov. 25, 1924.) Action of tort by Margaret Sullivan against Robert Northridge for personal injuries sustained by falling of roof of piazza on premises owned by defendant, and in which plaintiff's father occupied tenement. Verdict for plaintiff, and defendant excepts. Exceptions overruled. J. C. Mahoney, of Worcester (J. J. Moynihan, of Worcester, on the brief), for plain tiff. C. W. Proctor, of Worcester (J. C. McDon ald, of Worcester, on the brief), for defend ant. BRALEY, J. [1] The plaintiff while in the exercise of due care suffered personal injuries from the fall of a piazza roof connected with a two-tenement brick building owned by the defendant's testator, who died after the first trial, where a verdict in his favor was directed, which was set aside and a new trial ordered in Sullivan v. Northridge, 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 fall of the roof was caused solely by the separation of the supporting joists or rafters at the place where they joined the building, and that when examined after the ac I. Landlord and tenant 169(11) Land- cident the ends of some of the joists aplord's control of roof held for jury. Question of landlord's control over roof of second story piazza, which fell on tenant's daughter, properly held for jury, in view of evidence that landlord controlled upper piazza roof for benefit of tenants. peared to be water soaked and rotten. The premises, including the roof, at the beginning of the tenancy appeared to be in sound condition, but about eight or ten months before the collapse Northridge repaired the entire building. The eaves troughs on the 2. Trial 260(1)-Requested instruction ful- main building, and some eaves troughs bely covered by given instructions. Error cannot be predicated on refusal of requested instruction, substance of which was sufficiently covered by given instructions. 3. Trial 296 (3)-Instruction on landlord's duty to make repairs held not misleading nor inconsistent, in view of other paragraphs. In action by daughter of tenant of second floor for injuries from fall of roof of second story piazza, instruction that, while landlord was not required to make repairs unless contract required him to do so, yet, if he made them in careless or negligent manner, then he was liable for repairs made, if it resulted in injury to another, was neither misleading nor injurious in view of instruction that there could be no recovery unless landlord retained control tween the main roof and the piazza roof, and the water spouts which lead from the eaves troughs to the ground were removed and not replaced. The questions, whether the changes caused the roof at the place of the repairs to leak, and whether water percolated or circulated around the joists or rafters where they rested on the building, were for the jury It also could be found that, if the repairs had been properly made, the joists or rafters would not have decayed. and the roof would not have fallen. The defendant contends that the roof fell because of an unprecedented accumulation of snow and ice, which he could not anticipate. The judge submitted this question to the jury For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (145 N.E.) under instructions that, if the accident was is "The controlling question in the case whether this piazza roof was included in the premises let to the second floor tenant, or whether the defendant retained the control, and consequently owed the plaintiff, as a member of the tenant's family, the duty of using reasonable care to keep it in such condition as it apparently was in at the time of the letting, as in the case of common entrances, halls, and stairways." The evidence was conflicting. But, if the jury believed the plaintiff's witnesses, the main roof, which was distinct from the piazza roof, overhung the piazza roof 12 or 18 inches, and "the piazza roof carried water off the top piazza, and shed the water from the lower piazza." They could further find that the piazza roof in question was controlled by Northridge for the benefit of his several tenants. Sullivan v. Northridge, supra. The motion for a directed verdict was denied rightly. [2] The sixth request, that "the only evidence of the negligence of the defendant is the fact that he took down a water spout and eaves trough on or near the piazza roof some eight or ten months before the accident, and in order for the plaintiff to recover the jury must find from a preponderance of the evidence that the taking down of the eaves trough and waterspout caused the wood of the roof to become rotten, so that it fell because of such rotten condition, and that this rot developed between the time of the taking down of the eaves trough and waterspout, and the time of the falling of the piazza roof," was sufficiently covered by the instructions. [3] The defendant also excepted to the ruling relating to the duty of the landlord to make repairs. It is contended that the instruction, "And while the landlord is not required to make repairs unless the contract required him to do so, yet, nevertheless, if he undertakes and does make repairs, and does it in a careless manner, unskillful work, * * * a roof only "This case involves a question of the defendant's duty to the tenants, the Sullivans, and members of the family in the two tenement buildings. Did Mr. Northridge retain in himself the control of any portion of the building? It has been argued upon the testimony that the landlord did not retain control of any * If that piazza part of the premises. * roof was singly and solely to the upper part of the piazza, then the defendant would not be liable. The plaintiff contends, and it is for you to say, whether or not the roof of that piazza served the purpose of being a roof of both piazzas. Was it in control of the owner of the property, the defendant here?" "Whether or not he [the landlord] withheld or retained control of any portion of the building is largely a question of fact. It may not be pronounced by the court as a matter of law, but whether or not he reserved control and acted as if he had control, and that his conduct treated it as in his custody is for the jury to determine. Did the defendant Northridge make repairs to the roof?" * * * [4] If so construed they were neither misAdams v. Nanleading nor inconsistent. tucket, supra; Connors Bros. Co. v. Sullivan, supra; Sayles v. Quinn, 198 Mass. 492, The jury were plainly 496, 82 N. E. 713. told that the plaintiff, on whom the burden of proof rested, could not recover unless Northridge retained control' of the upper piazza, and that it collapsed because the reThe exceppairs were negligently made. tions to the admission of evidence not having been argued are treated as waived. Exceptions overruled. KENYON v. VOGEL. DIMICK v. SAME. (Supreme Judicial Court of Massachusetts Norfolk. Nov. 26, 1924.) 1. Evidence 220 (2)-Evidence that chauffeur was defendant's servant properly admitted. Where defendant, not being under arrest for violating G. L. c. 90, §§ 12, 17, relating to obligations of owners of automobiles in employment of chauffeurs or in limitations of speed, remained silent when his chauffeur stated at police station that he worked for defendant, such evidence was properly admitted to show that chauffeur was defendant's servant. 2. Evidence 220 (2)-Request that there was no inference from defendant's silence when chauffeur stated he was defendant's servant rightly denied. Where defendant not under duress remained silent when chauffeur stated he was defendant's servant, request that there could be no inference drawn by jury against him because of testimony that he said nothing was rightly de nied. 4. Damages 46-Husband and wife (7)-Wife may bind own estate for hospital expenses, and recover in personal injury action. Under G. L. c. 209, § 2, married woman living with her husband could bind herself personally for hospital and medical expenses necessary to treat her physical sufferings caused by defendant's negligence, and recover amount as damages. 5 Damages 46-Husband and wife 19 (15)-In absence of evidence that wife contracted for medical services individually, husband solely responsible, and she could not recover amount thereof in personal injury action. In absence of evidence that married woman living with her husband contracted for medical services individually, if liability existed therefor, her husband was solely responsible, and she could not recover amount thereof in personal injury action. 6. Appeal and error 1140 (2)-Error affecting measure of compensation only cured by remittitur. Where error affects only measure of compensation, it may be cured by remittitur. Judgments for plaintiffs, and defendant excepts. Exceptions as to judgment of Flora L. Kenyon overruled only on condition of remittitur; exceptions as to case of Nelson A. Dimick overruled. F. J. Squires, of Norwood, for plaintiffs. BRALEY, J. [1] These are actions of tort, in which the plaintiff in the first action recovered damages for personal injuries, and in the second action the plaintiff recovered damages for injuries to his automobile. The plaintiff Dimick on Sunday, May 18, 1920, was driving his own automobile on a public way in the town of Norwood, in which the plaintiff Kenyon was also riding at his invitation, when it came in contact with the automobile of the defendant, in which he was riding, driven by one Huskins, who was not specially licensed. G. L. c. 90, § 12. The record states that both cars were going in the same direction, and that the right-hand front portion of the defendant's car came into collision with the left-hand rear portion of the plaintiff's car, causing the injuries alleged. But no further description appears. The defendant, while admitting there was evidence warranting the jury in finding that the plaintiff's car was properly operated, and that the defendant's car was driven at excessive speed by Huskins, who was under the influence of intoxicating liquor, contends that evidence tending to show that Huskins was the defendant's servant was improperly admitted. After the accident the defendant and Huskins went to the Norwood police station where the chief of police in presence of the defendant asked Huskins for whom he worked, and Huskins replied that on that Sunday he was working for the defendant. During the colloquy the defendant not only remained silent, but when asked "why he did not drive his own car," answered "that he had to have Huskins because his car went too fast." The defendant was not under arrest for violating G. L. c. 90, §§ 12, 17, relating to obligations of owners of automobiles in the employment of chauffeurs, or in the limitations of speed. And even if contradicted by the defendant this evidence was plainly admissible, for reasons stated in Warner v. Fuller, 245 Mass. 520, 139 N. E. 811, where the authorities are collected. See, also, Commonwealth v. Spiropoulos, Mass. 71, 74, 94 N. E. 451; Commonwealth v. Anderson, 245 Mass. 177, 139 N. E. 436. 208 [2-6] The sixth request, "There can be no inference drawn by the jury against this defendant, 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 employSeparate 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 docFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (145 N.E.) bond and proper demand for the return of the replevied property were admitted. At the trial of this action to recover on the bond, the defendants offered to show that the automobile replevied, when the writ of replevin was served, was not "the property of the present plaintiff, but was the property of another, and was taken on May 26, 1921, from a person who had acquired supposed title to it from the defendant, Arnold, prior thereto." The exclusion of this evidence presents the question to be decided. trine of proximate cause. But no exceptions 1 port, which states that due execution of the were taken to the instructions, nor was the attention of the judge called to the omission. The question is not open for the first time in this court. Brigham v. Wentworth, 11 Cush. 123, 126. The plaintiff Mrs. Kenyon, although a married woman living with her husband, could bind herself personally for the payment of hospital expenses, and for medical attendance made necessary for the treatment of her physical sufferings caused by the defendant's negligence, and could recover the amount as damages. Braun V. 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 v. 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; Easter v. Foster, supra; Smith v. Mosby, 98. Ind. 445. "When title to the property in dispute has been put in issue and made the subject of judicial inquiry, the judgment rendered thereon against the plaintiff in replevin is indeed final and conclusive in all subsequent litigation. It cannot be opened in an action on the bond. at the hearing in chancery to ascertain for what sum execution shall issue. It is too late, in order to prevent the entry of judgment for a return, or to defeat a recovery on the bond, to allege and prove facts affecting the title." Leonard V. Whitney, supra. As we construe the report, the title of the plaintiff in this action was determined in the original action when that case was tried. In our opinion the defendants are bound by the former judgment. It was also agreed that the plaintiff's damages, if any, were $700. We need not there COHEN & HAYMOND, Inc., v. ARNOLD et al. (Supreme Judicial Court of Massachusetts. Hampden. Nov. 24, 1924.) Principal and surety 145(1)-Judgment determining title held conclusive in action on replevin bond. Where title to automobile was put in issue in replevin action and determined in defendants' favor, judgment therein was conclusive against defendants in action on replevin bond. Report from Superior Court, Hampden County; N. P. Brown, Judge. Action on replevin bond by Cohen & Haymond, Inc., against A. H. B. Arnold and oth ers. Submitted on report from superior court. Judgment for plaintiff. Ballard & Weston, of Springfield, for plain- fore consider whether the evidence offered tiff. D. H. Fulton, of Boston, for defendants. CARROLL, J. This is an. action on a replevin bond. The case is before us on a re was material on the question of damages. See Leonard v. Whitney, supra. Judgment is to be entered for the plaintiff in the sum of $700. 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. (Supreme Judicial Court of Massachusetts. Hampden. Nov. 28, 1924.) 1. Corporations 123(1)-Delivery of stock certificates with forged collateral agreement to secure loan on forged signature held not a pledge. Where defendant corporation made loan on forged signature of plaintiff to note, and received as collateral thereto stock certificates previously deposited with defendant's broker and forged agreement pledging them as collateral, delivery of stock to defendant was not a pledge. 2. Corporations 149-Pledgee, paying for stock with check to which payee's indorsement forged, not holder for value. Where defendant, in making loan on forged note secured by plaintiff's stock certificates, issued check in plaintiff's name, its bank had duty of determining whether signature of payee to check was genuine, and, when it paid check on forged indorsement, defendant was not holder for value, and, under G. L. c. 155, § 33, plaintiff could reclaim certificates. 3. Customs and usages 10-Custom to regard certificates of stock indorsed in blank as bearer certificates cannot affect rights of owner as against one paying no value. Custom to regard stock certificates indorsed in blank as bearer certificates, passing by delivery, could not affect rights of owner, in case of unauthorized transfer, to recover certificate from one paying no value therefor, and who received it to secure payment of owner's forged the preferred and twenty shares of the common stock of the defendant corporation, and comes to this court by report, after a finding for the plaintiff in the superior court. The plaintiff purchased the stock in question in 1921 from one George J. Chamberlain. Thereafter Chamberlain told him that it would be for the plaintiff's advantage to exchange said stock for stock in the Fisk Rubber Company, whereupon the plaintiff indorsed the certificates in blank and delivered them to Chamberlain. About a week later Chamberlain informed the plaintiff that this exchange could not be made, and suggested that the certificates be kept in his (Chamberlain's) safe deposit box while the plaintiff was away. It appeared that the plaintiff was a woodchopper and that it was his custom to go into the woods each fall. The plaintiff assented to the above suggestion and the certificates were retained by Chamberlain. Two days later the defendant received an application for a loan of $500, for which these certificates were to be pledged as collateral. The application purported to be signed by the plaintiff, but this signature was forged. The defendant, believing the signature to be genuine, mailed to the plaintiff at 22 Center street, Holyoke, Mass., care of George J. Chamberlain, a letter containing a note for $500, payable in installments of $50 per month, and a collateral agreement dated September 2, 1922, to be executed. The address to which this letter was sent was the one shown on the books of the defendant as that of the plaintiff. About September 21, 1922, the defendant received back the note and collateral agreement, each bearing what purported to be the plaintiff's signature, both of which were forgeries. At the same time the defendant received the said stock certificates each of which bore the plaintiff's indorsement as he had written it before delivering them to Chamberlain. The defendant, believing that the signatures to the note and collateral agreement were genu ine, mailed to the plaintiff at the same address a check for $474, payable to his order. Thereafter a forged indorsement of the plaintiff'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. Action of tort by Hildevert Marcotte against the Massachusetts Security Corporation for conversion of corporation stock owned by plaintiff. Submitted on report of superior court after finding for plaintiff. Judgment for plaintiff. checking account in the Hadley Falls Trust Company Letters demanding payment, the envelopes of which bore the return address of the defendant, were mailed by it to the address of the plaintiff. None of these letters was returned. On December 15, 1922, the defendant sent to the same address, by reg 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 ChamberSherburne, Powers & Needham, of Boston, lain ostensibly in behalf of the plaintiff. for defendant. The sale was duly advertised and on De For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |