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behavior and shall not be removed except Under rule 55 the trial board never had after a full hearing, of which he shall have any power to remove, but only to determine at least 72 hours written notice with a state- the question of guilt or innocence. ment of the reasons for the contemplated re [2-4] Ordinarily, where adequate relief moval, and except upon a written order stat. may be had by resorting to some other reming fully and specifically the causes therefor, edy, mandamus will not lie. If, as in the case made after a hearing as above provided for, at bar, a person contends that he has been and signed by the board or officer before wrongfully removed from an office classified whom the hearing is held Any hearing un- under the civil service rules of the Commonder this section shall, if the police officer so wealth and is entitled to bring a petition for requests in writing, be public and shall be reinstatement in a police, district, or muheld before the officer or board having power nicipal court in conformity with the provi. of appointment and removal. It is further sions of St. 1911, c. 624, as amended, now recited in the statute that at any such hear- | G. L. C. 31, § 45, he cannot maintain a petiing charges shall be made by the officer in tion for mandamus unless it appears that the command of the department or of the dis- remedy so given is not adequate, Butler v. trict where the police officer is on duty or by Directors of the Port of Boston, 222 Mass. any person designated by the official in com- 5, 109 N. E. 653; Thomas v. Municipal Counmand of the department, and the police of-cil of the City of Lowell, 227 Mass. 116, ficer shall be allowed to answer such charg- 120, 116 N. E. 497. The statute above rees either personally or by counsel. He shall ferred to provides that a person so be notified in writing within three days after moved may, within thirty days after the the hearing of the decision at such hearing. hearing upon which his removal is based, The statute contains other provisions which bring a petition in the district court praying need not be referred to as they are not mate that the action of the office or board may rial to the questions involved in the case at be reversed by the court; and after notice it bar.

shall review such action, hear witnesses and [1] The contention of the petitioner that affirm the decision of the officer or board, he cannot lawfully be removed without a unless it shall appear that it was made with. bearing before a trial board and a decision out proper cause or in þad faith; in which by it, in accordance with rule 55 of the gen- case the decision shall be reversed, and the eral regulations relative to the police force of petitioner reinstated in his office without loss the city, cannot be sustained. Rule 55 is sub- of compensation. Although the statute project to the provisions of the civil service laws. vides that “the decision of the court shall be If adopted under St. 1912, c. 611, § 5, that final and conclusive upon the parties," and statute expressly provides in section 7 that as such decision, so far as it relates to ques. the authority therein conferred is subject to tions of fact, will not be reversed, yet the the laws relating to the civil service. It is parties are not deprived of the right to have apparent that the charges against the peti- manifest errors of law corrected by a writ or tioner could not lawfully have been heard by certiorari. The Legislature did not intend by the trial board; although notice was given to the words "final and conclusive" to leave the him that such hearing would be held, it was parties without remedy if there were subafterwards abandoned. See Gordon v. Chief stantial errors of law apparent on the recof Police of Cambridge, supra.

ord of proceedings, depriving them of subSt. 1923, c. 242, provides that the hearing stantial rights. Swan v. Justices of the Suof charges shall be held "before the officer perior Court, 222 Mass. 542, 111 N. E. 386 ; or board having power of appointment and Commissioner of Public Works of the City of removal.” Rule 55 so far as it provides for Boston v. Justices of the Municipal Court of hearing by a trial board appointed by the the Dorchester District, 228 Mass. 12, 116 chief of police, is no longer in force because N. E. 969. inconsistent with St. 1918, c. 247, now G. L. As the emedy provided by G. L. 31, 8 c. 31, 88 43, 44 and 45, as amended by St. 45, was adequate to protect the rights of the 1923, c. 242. Gordon v. Chief of Police of petitioner, the entry must be: Cambridge, supra.

Petition dismissed.

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(148 N.E.)

8. Wills 316(1)-Not presumed in advance ALLEN et al. v. GUARANTE et al.

that counsel will go beyond established

bounds, or jury not restricted to real issues. (Supreme Judicial Court of Massachusetts. Norfolk. June 29, 1925.)

In framing issues for jury as to validity of

will, it cannot be presumed in advance that 1. Wills 316(2)—Statements of expected counsel will go beyond established bounds, or evidence of testatrix's family physician held that attention of jury will not be restricted to to justify framing issue of soundness of her real issues to be tried, and all extraneous matmind.

ter excluded.
In framing issues for jury trial, under G. L.
c. 215. § 16, statements of expected evidence

Appeal from Probate Court, Norfolk Coun-
from family physician of testatrix held to war- ty; J. R. McCoole, Judge.
rant submission of issue as to her soundness

In the matter of the estate of Mary R. of mind.

Allen, deceased. Petition for proof of will 2. Wills Ow316(1)--Issue as to lawful execu- by Frank J. Allen and others, opposed by

tion of will not allowed, unless there is contest Winifred Roughan Guarante and others, based on doubtful question of fact.

From an order of the probate court, framing Issue as to whether there was failure to issues for trial by jury, proponent and cerconform to law in execution of will, including tain legatees appeal. Order affirmed. understanding of its contents, ought not to be allowed, unless there is genuine contest, based T. W. Proctor, of Boston, for appellants. on doubtful question of fact.

S. L. Whipple, C. B. Cross, and L. H. 3. Wills am 316(3)-Fact that circumstances Leary, all of Boston, for appellees.

afford fertile field for appeal to religious
prejudices held not ground for refusal to
frame issues for jury.

RUGG, C. J. This is an appeal from an
Where testatrix, at age of 68 years and of order of the probate court framing three is-
Roman Catholic faith, married proponent, aged sues for trial by jury concerning (1) the
31 years and a Christian Scientist, first cere- due execution of the alleged will of Mary R.
mony not being performed by a priest, but sub-Allen; (2) her soundness of mind; and (3)
sequent ceremony being within her church, in the fraud or undue influence of the proponent
framing issues as to undue influence in execu- in procuring its execution. The petitioner for
tion of her will, fact that circumstances afford- the proof of the alleged will is the second
ed fertile field for appeal to religious preju- husband of the decedent.
dices held not ground for refusal to frame is-

The general principles of law and practice sues for jury trial, notwithstanding they could have been more satisfactorily tried by the which ought to govern the probate court in court.

deciding under G. L. c. 215, $ 16, whether to

frame issues for trial by jury in a petition 4. Wills Em 316(1)-Court has discretion to for the proof of a will have been declared,

refuse to frame issues, where Jury cannot discussed and amplified in recent decisions.
consider case without prejudice or impartial-

They need not be repeated. Fuller v. Syl-
Court, in exercise of sound discretion, may

via, 240 Mass. 49, 133 N. E. 381; Cook v. decline to frame issues in cases where it would Mosher, 243 Mass. 149, 137 N. E. 299; Clark be hard for jury to approach consideration of v. McNeil, 246 Mass. 250, 140 N. E. 922; Bur. case without prejudice and in spirit of judicial | roughs v. White, 246 Mass. 258, 140 N. E. 940. impartiality.

[1] There was statement of expected evi5. Wills 323–Inquiry into religious affilia. dence from the family physician of the de

tions of parties to will contest does not justify cedent of such nature that it cannot be proappeal to religious bias or passion, or warrant nounced wrong to frame an issue on her sarcasm as to sectarian views.

soundness of mind. Whitney v. Twombly, Inquiry into religious affiliations of maker 136 Mass. 145; Becker v. Becker, 238 Mass. of alleged will and of direct parties to contest, 362, 130 N. E 843; Needham Trust Co. v. relevant under appropriate circumstances, does Cookson, 251 Mass. —, 146 N. E. 268; Johnnot justify appeal to religious bias or passion, son v. Jenks, 231 Mass. 147 N. E. 814. or warrant sarcasm of particular sectarian We are of opinion, also, that it cannot be views,

said that the framing of an issue ought to be 6. Witnesses Em 340 (2)--Credibility affected reversed respecting the fraud or undue inonly by evidence of witness' disbelief in God. fluence of the proponent in procuring the

In view of G. L. c. 233, § 19, credibility of execution of the instrument offered for prowitnesses may be affected by evidence of their bate. It would serve no useful purpose to disbelief in existence of God.

narrate the evidence. The principles of law 7. Trial C 18–Presiding judge has adequate are well settled and need not be stated again. power and duty to see that fair trial is had. Neill v. Brackett, 234 Mass. 367, 126 N. E. 93,

Power and duty of presiding judge are ade- and cases there cited ; Neil v. Brackett, 241 quate, if wisely exercised to see that in ordi- Mass. 534, 135 N. E. 690; Raposa v. Oliveira, nary case fair trial is had.

247 Mass. 188, 141 N. E. 870; Connell v. OmFor other cases see same toplo and KEY-NUMBER in all Key-Numbered Digests and Indexes

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Sokoll, 247 Mass. 203, 142: N. E. 55; Angell, the court than by a jury. The statement as
V. Lighthipe, 251 Mass. 146 N. E, 692; | to the practice of the Supreme Judicial Court
Craig v. Lamoureux, [1920] A. C. 349.

in Fuller y. Sylvia, 240 Mass. at page 53,
[2] There is in the record slight, if indeed 133 N. E. 386, that when "there is such a
there is any, evidence tending to show that real and true question of fact to be tried
there was failure to conform to the law in supported by evidence of a substantial na-
the execution by the testatrix of the instru- ture, then issues were framed in almost ev.
ment offered for probate, including an under- ery case," plainly leaves it to the sound dis.
standing on her part of its contents. Rich- cretion of the court to decline to frame is-
ardson v. Richards, 226 Mass. 240, 115 N. sues in cases where it would be hard for
E. 307. That issue ought not to be allowed the jury to approach the consideration of the
unless there is a genuine contest based upon case without prejudice and in the spirit of
doubtful questions of fact. It is compara- | judicial impartiality. Inquiry into the re-
tively rarely that the situation justifies the ligious affiliations of the maker of the al-
framing of that issue. In the case at bar leged will and of the direct parties to the
no argument has been urged by the propo- contest may be relevant under appropriate
nent, restricted to this point alone. In the circumstances. Neill v. Brackett, 234 Mass.
light of all these circumstances, though with 367, 369, 126 N. E. 93. But that inquiry falls
some hesitation, we are of opinion that the far short of justifying an appeal to religious
portion of the order framing that issue ought bias or passion or of warranting sarcasm of
not to be reversed. Old Colony Trust Co. v. particular sectarian views.
Spaulding, 250 Mass. 400, 145 N. E. 927.

[6] It cannot be said in the case at bar that [3-5] The main contention of the propo- the decision of the court below ought to be nent is that no issues ought to have been reversed on the ground urged. If the nature framed for trial to a jury. That contention of the trial as it progresses make such course is founded on the peculiar facts shown in necessary, the presiding judge must immedithe record, Succinctly stated, those facts ately and completely repress direct or covert are that the decedent was about 68 years incitement of religious prejudice and open of age at the time of her marriage to the or veiled sarcasm or mockery of religious beproponent, then about 31 years of age; that liefs or affiliations. These considerations she had been a lifelong adherent of the Ro- can have no proper place in a court of jusman Catholic church, while he was a Chris- tice and ought to be utterly banished. Comtian Scientist; that they were not married monwealth v. Buzzell, 16 Pick. 153; Searle by a Roman Catholic priest; that after the v. Roman Catholic Bishop of Springfield, 203 marriage the testatrix relaxed in observance Mass. 493, 89 N. E. 309, 25 L. R. A. (N. S.) of the rites of the Roman Catholic church | 992, 17 Ann. Cas. 340; Commonwealth v. and attended services of the Christian Sci- Kazules, 246 Mass. 564, 141 N. E. 584. The ence church with her husband; and that credibility of witnesses can be affected only shortly before her death another marriage by evidence of their disbelief in the existence ceremony at her request was performed by of God. G. L. c. 233, § 19; Commonwealth a Roman Catholic priest. It is argued with | v. Smith, 2 Gray, 516, 61 Am. Dec. 478; Comearnestness that these circumstances afford monwealth v. Burke, 16 Gray, 33. Adherence a fertile field for appeal to religious preju- to any particular sect is no basis for argudice and for ridicule of the somewhat unfa- ment in this respect. miliar phrases and other usages of the mod [7,8] The power and the duty of the preern sect known as Christian Science. These siding judge are adequate, if wisely exerelements of the case, so far as likely to make cised, to see that in the ordinary case a fair it “difficult, if not impossible, for a jury to trial is had. Whitney v. Wellesley & Boston confine their consideration to those aspects Street Railway, 197 Mass. 495, 502, 84 N. E. of it which were legitimate to the issue,” | 9.5; Plummer .v. Boston Elevated Railway, well might have been given weight in decid- 199 Mass. 499, 515, S4 N. E. 849; Posell v. ing whether to frame issues for trial by jury. Herscovitz, 237 Mass. 513, 515, 130 N. E. 69. Fay v. Vanderford, 154 Mass. 498, 28 N. E. It cannot be presumed in advance that con: 681; Davis v. Davis, 123 Mass. 590; Ross duct of counsel will go beyond established v. New England Ins. Co., 120 Mass. 113. The bounds, or that the attention of the jury will conclusion would have been justified that un- not be restricted to the real issues to be tried der all the existing conditions these issues and all extraneous matters be excluded. could have been more satisfactorily tried by Order framing issues affirmed.

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(148 N.E.)

8. Master and servant 219(7)-Risk of elecLAMBERTI V. NEAL.

trical current held not obvious; "safety

ground wire." (Supreme Judicial Court of Massachusetts.

That motor operating coal conveyor was Middlesex. June 27, 1925.)

plainly marked 550 volts, and that a person 1. Master and servant Om 278(14)-Evidence could see that no wire connected its frame with held to justify finding of negligence in not the ground, did not make risk of receiving fatal discovering dangerous condition of machine electrical current through coal chute an obvious and making it safe.

one; a "safety ground wire" being one making

direct connection between framework on which Evidence that defendant's foreman knew, motor sat and the ground, whereby leakage of before fatal accident, of complaints that em; electricity was carried into the ground. ployees were getting electrical shocks from coal conveyor, held to justify finding of jury that de- 9. Master and servant om 106(1)-Purchase of fendant was negligent in not discovering its machinery from reputable manufacturer not dangerous condition, and making it safe.

discharge of master's duty, where dangerous

condition was due to absence of safety device. 2. Master and servant Om 107 (8)—"Defect in condition of machinery” refers to safety of

That motor was purchased from reputable employees.

manufacturer did not show employer's discharge Words “defect in the condition of the his coal chute in accordance with plan of engi

of whole duty, where he had incorporated it into machinery," in Employers' Liability

neer, and dangerous condition complained of was Act, § 1, cl. (1), do not refer to working capac- l in not attaching adequate safety device, or inity of machinery, but to its condition with re- stalling transformer to reduce current, or in gard to safety of employees.

other ways making it reasonably safe. 3. Master and servant Ow107(8)-To "remedy" | 10. Master and servant Om 105(2) - That same a defect is to end dangerous condition.

kind of machines are commonly used is no de.

fense, When Employers' Liability Act, § 1, cl. (1), speaks of defect not having been remedied, it If employer sets employees to work on or does not mean that machine must have been near a machine, with the concealed danger of made perfect for working purposes, but that its its becoming charged with current of electricdangerous condition must have been ended. ity which, in exercise of reasonable care, he

[Ed. Note.-For other definitions, see Words ought to have made safe, even if machine is and Phrases, First and Second Series, Remedy.) perfect in mechanism, but if unsuitable and un

safe, and employer in exercise of reasonable 4. Master and servant Om 107(8) — “Defect" care ought to have known it, it is no defense to may be want of safety device.

show that same kind of machines are commonly

used in work similar to his. "Defect" in condition of machinery, within Employers' Liability Act, § 1, cl. (1), may be u. Master and servant 103(1)-Employer, want of a safety device or appliance.

not discharged from duty by showing com{Ed. Note.-For other definitions, see Words pliance with requirements of electrical inand Phrases, First and Second Series, Defect.] spector, or engaging engineer to install wires

properly. 5. Master and servant am 278(1)-Showing of Where duty of using reasonable care to see facts from which negligence may be inferred that coal conveyor and motor were so erected is sufficient.

that they would not carry fatal electrical curIn action for death of laborer from electrical rent might have been found to be personal duty, shock while working on coal conveyor, plaintiff employer was not relieved by showing compliwas not bound to prove specific defect or act of ance with requirements of inspector of wires, negligence to entitle her to recover; it being or engagement of competent engineers and elecenough if she showed facts from which defend-tricians to design and install wires and apparaant's negligence might be inferred.

tus properly, or by following their advice. 6. Master and servant 219(10)–Rule of as 12. Master and servant On 125(1)-Employer sumed risk applies to obvious conditions and not discharged from duty by lack of knowledge dangers.

ground wire would be additional protection, Rule that employee assumes risks of busi Employer was not discharged of personal ness, and employer is not bound to change his duty to use reasonable care to see that coal constructure to make it safer for employees, or to veyor and motor were so erected and maintained use most improved machinery, applies to all that they would not carry fatal electrical curobvious conditions and dangers, which should rent, because he had no knowledge that safety be observed and appreciated.

ground wire would be additional protection. 7. Master and servant om 219(10)-Rule of as 13. Master and servant 103(1)-Employer sumed risk does not protect employer, failing not discharged from duty by showing delegato exercise reasonable care to remedy defect tion to another. not obvious.

Employer was not discharged from personal Rule of assumed risk does not protect em duty of using reasonable care to see that coal ployer, if he has failed to exercise reasonable conveyor and motor were so maintained that care to discover and remedy defects that are they would not carry fatal electrical current not obvious in condition of ways, works, and by delegation of performance of such duty to machinery.

another, whether in his service or not.
Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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14. Master and servant 270(10)–Evidence , conveyor at the time of said injury to Dom.

relating to safety ground wire and transform- inic Lamberti, the verdict must be for de er to reduce voltage properly received.

fendant, In action for death from electrical current while defendant's decedent was working on coal

P. M. Foss, of Boston, for plaintiff. conveyor, on issue whether defendant had used

H. L. Boutwell and F. A. Cross, both of reasonable care

to furnish safe machinery, Boston, for defendant. plaintiff held within rights in introducing evidence relating to safety ground wire and trans SANDERSON, J. In this action the plainformer to reduce voltage of motor.

tiff seeks to recover damages for the death, 15. Trial C 260(8)-Refusal of request held / without conscious suffering, of her husband, without error, in view of instruction given. Dominic Lamberti, on July 28, 1919, while

Where jury were instructed in substance employed as a laborer in the defendant's that plaintiff could not recover, unless she coal yard in Malden. The declaration is in proved her husband died from electric shock re- two counts, both for the same cause of acsulting from negligence for which defendant was tion; the first alleging, in substance, that responsible, there was no error in refusing de- Lamberti was killed by reason of a defect fendant's request to charge that, if electricity was not turned on at time of injury, verdict in the condition of the ways, works, or mamust be for defendant.

chinery, arising from or not remedied 16. Trial Cw260(8)—Charge on nonapplication ant, or of a person in his service intrusted

consequence of the negligence of the defendof doctrine of res ipsa loquitur held sufficient, with the duty of seeing that they were in ly favorable to defendant. In action for death from electrical current that the death was caused by the negligence

proper condition; and the second alleging while working on coal conveyor, where plaintiff did not rely on mere happening of accident to of a person in the service of the defendant prove negligence, defendant's request for rul- who was exercising superintendence. The ing that doctrine of res ipsa loquitur did not. defendant's answer is a general denial. The apply, and that there could be no recovery un- jury returned a verdict for the plaintiff and less there was evidence warranting inference of the case is before us on the defendant's exnegligence, held given in substance by instruc- ceptions to the admission of evidence and tion sufficiently favorable to him.

to rulings given and refused by the trial 17. Master and servant Cum291 (4) Request judge,

that there could be no recovery, if defect in On the date of his death Lamberti was circuit was beyond defendant's premises, right- assisting in unloading a coal car, using for ly refused.

the purpose a conveyor, with an endless belt Finding that employer had duty of install- supported by a metal framework operating safety ground wire to guard employees ed by an electric motor mounted on an iron against danger of electrical shock, whether due

truck. to defect in defendant's premises or outside, held the car, and at the delivery end of the ma.

The coal was carried upward from warranted, so that request that there could be no recovery, if specific defect was in circuit of chine were two sheet iron chutes through electrical company or in premises of its custom- which it was delivered to a pile in the de. ers other than defendant, was rightly refused. fendant's shed. These chutes were metal

lically connected with the conveyor. The 18. Appeal and error (m930 (2) —Jury presum- electric current came from the Malden Eleced to have disregarded stricken evidence. Where electrical code was admitted, and evi- fendant from the street supply, by means of

tric Company, and was furnished to the de. dence thereof afterwards stricken out, be presumed that jury disregarded it.

a cable with terminal attachment designed

for plugging into outlets in various parts of 19. Trial m54(1) - Admission of electrical the defendant's plant. The main feed wire code for limited purpose held not ground for came from the Malden Electric Company and exception.

carried a current of 2,300 volts, which was Electrical code held admissible to enable ex- transformed, a few hundred feet from the perts to refer to it as basis for opinion and ad- defendant's coal shed, to a secondary cirmission for such purpose gave defendant no good exception, especially when no witness bas- cuit carrying approximately 550 volts, and ed his opinion thereon.

from the point of transformation the cur

rent was distributed on the same secondary Exceptions from Superior Court, Middlesex circuit to the defendant, the Malden KnitCounty; H. A. Dubuque, Judge.

ting Mills, and others.

On the day of the Action of tort by Rosa Lamberti against from 570 to 580 volts.

accident this circuit was actually carrying Enoch E. Neal to recover for death of plain-maintained by the electric company, and the tiff's husband, Dominic Lamberti. Verdict for plaintiff, and defendant excepts. Excep-pany's responsibility ended at the service

testimony was undisputed that the comtions overruled.

connection in the defendant's coal yard. The Defendant requested court to rule that, if wires and cables carrying the current with; electricity was not turned on to said coal in the defendant's plant had been installed

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


It was owned and

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