(146 N.E.) barrels; that he came to a pile of barrels, I shipped him no barrels which he did not and asked the price of these barrels; that pick out in the yard or inspect at the cars exTillier said he would give Aronson $2.25 per cept one carload which was shipped from barrel if he would put them on the cars and Maine. It was my general custom to have the

A ship them to New Jersey; that Aronson buyer pick out the barrels from the pile. said he would not be willing to do that, but look around until he finds what he wants. man who wants to buy barrels from me has to

It Tillier could buy them f. o. b. cars Cam

was my usual custom to have a written agreebridge; that Tillier said he would do this ment similiar to the agreement with Mr. Tillier, provided he was allowed to inspect the bar- even if the barrels were paid for in advance.” rels at the cars in Cambridge, and Aronson agreed to this, that they went upstairs and

In passing it must be noted that the alTillier gave Aronson a check for the barrels, leged signed “memorandum of an agreement” Aronson saying that he would start ship- in an important particular differs from the ments as soon as the check came through ;

unformulated oral agreement, in that Tillier that thereupon Aronson directed his book-does not agree in the "signed agreement” to keeper to make out "a memorandum of an "buy them [the barrels] f. o. b. cars Camagreement,” which was made in duplicate. bridge,” and in that the “signed agreement” Aronson testified:

provides for the purchase and sale of "oll

barrels," as distinguished from barrels which “I signed the original and Mr. Tillier signed may or may not be fit for or adaptable to the duplicate. I saw Mr. Tillier sign it myself

. He signed it in my office in the pres- any particular use. ence of my bookkeeper."

It was the contention of the plaintiff that

he purchased five cars of second-hand oil He further testified that on each of the barrels, which were to be paid for in advance five occasions on which Tillier came to pur- and were to be shipped to Bayonne, N. J. chase barrels a memorandum of the agree. The second count of the declaration in the ment entered into was made out in dupli- civil action alleged, an express warranty that cate; that he saw Tillier sign one copy and the barrels purchased were "refined No. 1 he signed the other. In the civil case these barrels." The third count in the said decdocuments were introduced in evidence, and laration alleged: when the case was finished were handed to

"That the barrels were not merchantable as the defendant by his counsel in that case; the oil barrels and not fit and suitable for the purdefendant was then told that the papers were poses of the plaintiff.” of no further use and he put them in the waste basket.

On these allegations of the declaration These papers were alike in form, were there were to be tried the issue of an express filled in according to each order, and read as warranty and the issue of an implied warfollows:


[1, 2] The “memorandum of an agreement" "I, Fred Tillier, of Brooklyn, N. Y., have this contains every element of an express formal day agreed to purchase of John N. Aronson, of East Cambridge, Mass., and the said John contract, and if executed by the parties was N. Aronson has agreed to sell to the said a complete answer and defense to the alleFred Tillier a lot of

or carloads of oil gation of an express warranty, set out in barrels at the price

Mr. Tillier is to count 2 of the declaration. The alleged memremove these barrels within days from orandum if executed were also a defense to this date from John N. Aronson's yard, Cam- the contention of the plaintiff that be had bridge, and Mr. Tillier is to inspect these bar- the right of inspection in New Jersey, as a rels at the time of loading. John N. Aronson condition subsequent to the passing of title hereby acknowledges receipt of check for

in Cambridge; and established the conten

tion of the defendant that the right of inAt the trial in the civil case Tillier denied spection and the right of rejection were, by that he had signed the documents; and an the terms of the written agreement, to be exexpert, to whom the documents were re- ercised, if at all, in Cambridge; and that ferred, testified that in his opinion the signa- the failure to inspect in Cambridge within tures on them were not in Tillier's handwrit- the terms permitted by the written contract ing. In the case at bar a handwriting expert deprived the plaintiff of the right to return testified that he had examined the five con- the goods and receive the money paid, as also tracts and an admittedly genuine copy of of the right to retain the barrels and recover Tillier's handwriting; "that the signatures damages of the defendant because of any were too similar to have been written on dif- breach of an implied warranty of fitness, ferent dates ;” and “that in his opinion the which an inspection at the time and place signatures on the five documents were not named in the alleged contract would have those of Mr. Tillier."

disclosed. Bradt v. Hollaway, 242 Mass. 446 At the civil trial Aronson further testified: 136 N. E. 254; Rosenbush 1. Learned, 242 "During the talk with Mr. Tillier before Mass. 297, 136 N. E. 341; Williston, Sales, papers were passed there was no talk about $ 234, notes 34, 35, 39, 40. G. L. c. 106, St. the particular kind of barrels to be furnished. 1908, c. 237, § 15, cl. 3.


(3-8] What have been said disposes of the treatment was different from that of ordinary contention of the defendant that there was a practitioners under similar circumstances. fatal variance between the allegation in the indictment, "and that the defendant falsely

Exceptions from Superior Court, Bristol testified that said Fred Tillier signed five County; Joseph Walsh, Judge. contracts," and the proof, as it does of the Action of tort by Piotr Kos, administrator contention “that the five alleged 'contracts' of estate of Stanislawa Kos, against Norbert were not material in the issue whether the R. Brault, to recover for death and conscious plaintiff in Tillier v. Aronson lawfully re- suffering of deceased alleged to have been jected a certain number of barrels." The caused by defendant's negligence and lack reading of Tillier's testimony in the civil of care. Verdict for defendant, and plaintrial, taken stenographically, was admissible tiff excepts. Exceptions overruled. to show the issue or issues raised by the

H. A. Lider, of New Bedford, for plaintiff. pleadings in that action. It was also admissible to show what issues were in fact

J. P. Doran, of New Bedford, for defend

ant. submitted to the jury under the instructions of the judge; and such record of the testi.

PIERCE, J. mony was not inadmissible because in sub

This is an action of tort stance it corroborated the oral testimony of brought by an administrator to recover for Tillier given in the criminal case without ob- the death and conscious suffering of his injection.

testate, which are alleged to have been causFoye v. Patch, 132 Mass. 105; Butchers' Slaughtering & Melting Association ed by the negligence and lack of skill of

the defendant. v. Boston, 137 Mass. 186; Coyle v. Taunton Safe Deposit & Trust Co., 216 Mass. 156, 103

At the trial it appeared that the defendant, N. E. 288. An examination of the charge a practicing physician and surgeon in the does not disclose, as the defendant contends, city of New Bedford, was called by the plainthat the judge left to the Jury to decide tiff to attend his wife in travail; that the "whether the evidence of the false testimony wife gave birth to a child, the intestate, at by the defendant was material to any issue,” about three o'clock in the morning of Debut shows that he did not leave such issue cember 19, 1920, and that in the delivery, to them.

the femur in the left leg of the child was We have examined all the contentions of

broken. the defendant and find no error in the action

Contradicted by the defendant, the plaintiff of the court concerning them.

introduced evidence which warranted a findExceptions overruled.

ing that the defendant did nothing for the broken bone at that time; that he went away and returned at about six o'clock in the evening of the same day, and then set the leg in splints in a manner that was improper

and did not serve the purpose for which the KOS V. BRAULT.

splints were intended; that the defendant

returned to see the child on December 20, (Supreme Judicial Court of Massachusetts. 1920, at about six o'clock and did not call to Bristol, Jan. 10, 1925.)

see or attend the child thereafter. There was 1. Appeal and error on 1068(5)Under finding

further evidence for the plaintiff that the of no negligence, refusal to instruct that de splints became loose on December 23, and the fendant was responsible for negligent treat defendant was notified thereof; that on Dement by second physician held without error. cember 24, a message was sent to him that

In view of inference from finding for de- the splints had “fallen down,” with a fendant that there was no original negligent act quest that he should come to the house, and nor want of required skill in his treatment of that he did not do so; that on December 25, child which subsequently died, there was no is- | the plaintiff called at the defendant's hon sue to which instruction that defendant was responsible for results obtained by second phy

and asked that he be sent to see the child sician, even though treatment of latter was im- as the bandages were down and it was conproper and negligent, was applicable, and hence stantly crying. The evidence was undisputrequest therefor was rightly refused.

ed that the plaintiff on the morning of Dė

cember 26, in the exercise of reasonable 2. Evidence Cw548 -Negative answer to ques. care engaged one Lafrance, a practicing phy

tion as to whether treatment was different sician in New Bedford, to attend the child; from that of ordinary practitioners held with and later on the same day notified the deout error.

fendant, upon his arrival at the house, that In action for death of infant alleged to have been caused by neglect and lack of skill of de- his services were no longer required. fendant and second physician employed by plain

There was evidence that Dr. Lafrance had tiff, there was no reversible error in their nega- an X-ray taken of the broken limb on Detive answers to questions as to whether their | cember 26; that he ascertained by diagnosis

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


(146 N.B.) that the hematoma over the part of the that the defendant, Dr. Brault, is liable for the bone which was broken was in a septic con- septic condition and its consequences.” dition; that by reason of the septic condition

(1) And he refused to instruct them as folof the child the fracture became of secondary

lows: importance and could not be reduced until the septic condition was cured. There was evi- to attend the child the defendant is responsible,

“5. The plaintiff having selected Dr. Lafrance dence by witnesses for the plaintiff that aft- for the result even though the treatment of Dr. er December 26, the condition of the child Lafrance was improper and negligent. Hunt v. continued to improve until January 17, 1921, Boston Terminal Co., 212 Mass. 99, 98 N. E. at which time the wound had closed; that 786, 48 L. R. A. (N. S.) 116." on January 17, it was found that the frac

No instruction was given to the jury conture could not be reduced without an opera cerning the liability of the defendant for the tion, as the broken ends of the bone adhered negligence of Dr. Lafrance. In other respects to the flesh and an incision in the child's the jury was fully and correctly instructed in leg was necessary; that at this operation Dr. the law. The jury found for the defendLafrance tied the broken ends of the femur ant, and thereby necessarily found that no together with a silver wire, and later on original, negligent act and no want of that the same day ascertained from an X-ray reasonable degree of learning, skill and expeexamination that the bones were not in ap- rience, which the defendant in law was reposition; that he attempted by pulling to quired to possess and exercise, caused the set the bones in apposition, and in this at- bone in the leg of the intestate to be broken tempt pulled the wires out of place in the during the delivery, or at the birth of the bones. It further appeared that following

intestate; or caused, through inattention, the operation and treatment by Dr. Lafrance, neglect and lack of professional skill, a septic general blood poisoning set in and the child condition in the leg over part of the bone died on January 19, as a direct result of this which was

broken. Adams v. Dick, 226 Mass. poisoning. There was testimony by witnesses 46, 115 N. E. 227; Adams v. Hayden, 236 for both plaintiff and defendant to the effect Mass. 454, 459, 128 N. E. 798. that this treatment was negligent, that it

The plaintiff based his right to have the was evidence of a lack of skill of Dr. La

jury instructed as requested upon the rule france, and that the septicemia was caused of damages recognized in McGarrahan v. New by the negligent treatment or by reason of York, New Haven & Hartford Railroad, 171 the wire which had been placed in the child's Mass. 211, 50 N. E. 610; Hunt v. Boston leg. There was testimony on behalf of the Terminal Co., 212 Mass. 99, 98 N. E. 786, 48 plaintiĩ that if the leg had been properly L. R. A. (N. S.) 116; Gray v. Boston Elevated treated in the beginning the child would Railway, 215 Mass. 143, 102 N. E. 71, and probably have recovered.

Purchase v. Seelye, 231 Mass. 434, 121 N. E. There was medical testimony for the de- 413, 8 A. L. R. 503, note 507, in substance, fendant that in a delivery under conditions that a person injured through the neglisuch as existed in this case it was not un- gence of another may recover of that person common for a leg to be broken; and there such additional damages as result to him was, testimony that after the birth the de- from the negligence or want of skill of a fendant tied the broken leg to the child's physician called to alleviate or cure the inibody in such a way that no further injury tial harm, if the person injured exercised could develop; that he set the leg on the reasonable care in selecting a competent evening of the same day; that he called to physician. This rule of additional damages see the child every day from December 19 is predicated upon the existence of an origuntil December 26 (except on the 24th when inal actionable act of negligence; and ashe was out of town), until he as discharg- suming such an act, the only question is, are ed by the plaintiff'; and that he kept the the damages sought to be recovered the displints in place around the leg by re-enforc- rect consequence of the act? Polemis' Case, ing the bandages.

(1921) 3 K. B. 560. With the finding of the At the request of the plaintiff the presid- jury, it follows that there was no issue of ing judge instructed the jury in part as fol- damages to which the requested ruling was lows:

applicable. "3. If you find that proper treatment of de

[2] We find no reversible error in the negaceased required that the leg be mobilized, that is tive answer to the question to the physician held rigid, that the defendant, Dr. Brault, in at- and defendant: tempting to accomplish mobilization placed upon "Was there anything in your treatment of the the limb of the deceased improper splints, or case, as you saw it, that was different from carelessly permitted the splints to become loose, the treatment of such a case by the ordinary and if the result of that was that the fractured practitioner under similar circumstances?" ends of the bone injured the tissues, which caused the septic condition, then you may find Exceptions overruled.

146 N.E.-2

By G. L. c. 90, $ 24:

"Whoever upon any way operates a motor ve(Supreme Judicial Court of Massachusetts.


while under the influence of inMiddlesex. Jan. 10, 1925.)

toxicating liquor * • shall be punished by

a fine of not less than twenty nor more than 1. Highways mw 186–Proof that defendant was two hundred dollars or by imprisonment for not drunk not essential to conviction.

less than two weeks nor more than two years, In prosecution under G. L. c. 90, $ 24, for or both; except that for a second offense of operating automobile while under influence of operating a motor vehicle while under the inintoxicating liquor, it was not necessary to fluence of intoxicating liquor, a person shall be prove that defendant was drunk.

punished by imprisonment for not less than

one month nor more than two years." 2. Highways Om 186 Statute prohibiting drunken automobile driving held penal.

[1-3] The Commonwealth was not required G. L. c. 90, $ 24, prohibiting operation of to prove that the defendant was drunk. automobiles while under influence of intoxicat- "Whatever difficulties there may be in framing liquor, is penal and regulatory.


a definition of the extent of 3. Highways cm 186—Whether drunken driver stitutes drunkenness, there is a distinction

inebriety which falls short of and which conexercised due care to avoid injury to others between that crime on the one hand and was immaterial.

In prosecution under G. L. c. 90, § 24, for merely being under the influence of liquor on operating automobile while under influence of the other hand, which is recognized in comintoxicating liquor, it was immaterial whether mon speech, in ordinary experience, and, in defendant exercised due care to avoid injury to judicial decisions." Cutter V. Cooper, 234 other travelers.

Mass. 307, 317, 318, 125 N. E. 634, 637. The

statute is penal. Its very purpose is to reg. Exceptions from Superior Court, Middle- ulate the use of motor vehicles on the pubsex County; W. H. Whiting, Judge.

lic ways, in the interests of the public welEarl O. Lyseth was convicted of operating fare. See Tripp v. Allen, 226 Mass. 189, 115 an automobile while under influence of in- N. E. 255. It was wholly immaterial whethtoxicating liquor, and he excepts.

er the defendant exercised due care to avoid

Exceptions overruled.

injury to other travelers, and he could be

convicted even if there were no travelers on A. K. Reading, Dist. Atty., and Chas. E. the street. Commonwealth v. Horsfall, 213 Lawrence, Asst. Dist. Atty., both of Boston, Mass. 232, 235, 100 N. E. 362, Ann. Cas. 1914A, for the Commonwealth.

682, G. W. Pearson and F. H. Pearson, both of

We perceive no reason why the statute Lowell, for defendant.

should not be construed in accordance with

its plain meaning, and the entry must be, BRALEY, J. The defendant having been

Exceptions overruled. tried and convicted on a complaint under G. L. C. 90, § 24, for operating an automobile while under the influence of intoxicating liquor, contends, that the trial judge erroneously

HAVEN et al. v. SMITH et al. . refused to give the following requests as framed:

(Supreme Judicial Court of Massachusetts.

Bristol. Jan. 10, 1925.) “The defendant cannot be found guilty of driving while under the influence of intoxicating Executors and administrators Ou233—Nonresliquor unless the jury find that he was actually ident plaintiffs failing to summon executors driving in a manner different from the way he within statutory time denied relief; "culpa. would have driven had he taken no intoxicat ble neglect." ing liquor."

Where defendant died and executors were "If the defendant's manner of driving his motor vehicle under the circumstances of this appointed and gave notice under G. L. C. 195,

$S 1, 2, and chapter 197, &$ 2, 9, but plaintiffs case was that of a sober, careful man, he cannot be found guilty * of operating a

were without knowledge of defendant's death unmotor vehicle while under the influence of in- til too late, under G. L. c. 197, § 9, and chapter

228. § 4, to summon in executors, held, no fraud toxicating liquor."

having been practiced, that knowledge of one The only statement in the record as to the executor that action was pending or plaintiffs' testimony is, that in addition to other evi- norresidence, or failure of defendants' counsel dence there was evidence that the defendant cient to grant relief under chapter 197, § 10;

to give notice of their retirement, was insuffiwhen seen by the witnesses at the place “culpable neglect” meaning neglect arising from of the accident within half an hour there- creditor's own carelessness in not seasonably after, was under the influence of intoxicating enforcing claim. liquor. We accordingly assume the jury

(Ed. Note.-For other definitions, see Words could find, that the charge in the complaint and Phrases, First and Second Series, Culpable had been proved.

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

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(146 N.E.)
Report from Supreme Judicial Court, Bris-, and they wrote the plaintiffs' counsel 'they
tol County.

would be glad to reciprocate. The firm of Bill under G. L. c. 197, § 10, by Frank E. executors from all connection with matters of

Lowney & Harrington were discharged by the Haven and others against Delia F. Smith James F. Smith; all the papers of James F. and others to restrain defendants from de- Smith in their possession after Smith's death pleting assets of estate of James F. Smith, by their direction were turned over to an atdeceased, and to reserve therefrom sufficient torney in New Bedford by the name of Gerrett money to satisfy plaintiff's claim. Submit-Geils. They did not withdraw their appearted on report. Bill dismissed.

ance nor did they notify the clerk, the plain

tiffs, or the plaintiffs' counsel of the death of F. W. Mansfield, of Boston, for plaintiffs. Smith. Gerrett Geils did not enter his appearJ. E. Crowley, of Boston, for defendants. ance in the case or give any notice. Gerrett

Geils shortly thereafter became sick and died BRALEY, J. It is alleged in the bill and before the expiration of the special statute of

limitations and was succeeded by present counadmitted by the answer that the plaintiffs, sel who had no knowledge of the pendency of who are nonresidents, brought an action of suit until March, 1924. * Bernard Smith contract against James F. Smith, domiciled knew that the action was brought against the in this Commonwealth, which was entered testator and while there was no direct evidence in the Superior Court for the county of Bris- showing that he knew the action was pending tol on May 1, 1922. The single justice by when the testator died, I find as matter of whom the suit was heard finds that they inférence that he did know the action was had an enforceable claim "for the sum of pending at that time and when the account was

filed. The defendants practiced no deceit or $5,000.” But, Smith having died in August, fraud on the plaintiffs, they did not mislead or 1922, his will was duly admitted to probate deceive them, they did nothing, they simply the following September, when the defend remained silent, and by no word or action asants were appointed executors. Due notice sured the plaintiffs that the testator was still of their appointment was given, and an af- alive or dead or that they would be paid." fidavit of notice was filed December 13, 1922. In September, 1923, the executors submitted The knowledge of Bernard P. Smith that their final account, and, without obtaining a the action at law had been brought against decree of distribution, paid over the funds his testator, or the fact that the plaintiffs in their possession in accordance with the were nonresidents, is insufficient singly or terms of the will. The action, however, was combined to justify relief. Wells v. Child, 12 pending during these proceedings, and ap- Allen, 333; Sykes v. Meacham, 103 Mass. 285. peared on the trial list several times after it is distinctly found that no fraud was Smith's death. It does not appear by whom practiced. The defendants had given notice the case was put on the list, or why the trial of their appointment as required by statute, was postponed. The plaintiffs had no knowl- and no further notice to creditors was necesedge of the defendant's death until March, sary. G. L. c. 195, $g 1, 2; chapter 197, se 1924. It was then too late to summon in

2, 9. And, having resorted to the courts of the defendants. G. L. C. 197, § 9; G. L. C. the debtor's domicile, the plaintiffs were 228, $ 4. See G. S. c. 97, $ 5; P. S. c. 136, 8 bound to take cognizance of the law of pro9; R. L. c. 141, § 9; St. 1914, c. 699, g 3; cedure of the forum under which they were Wells v. Child, 12 Allen, 330, 331. The only seeking judgment against him. Emery v. remedy was to bring the present suit under Burbank, 163 Mass. 326, 327, 39 N. E. 1026, G. L. C. 197, § 10:

28 L. R. A. 57, 47 Am. St. Rep. 456, and cases
"If the supreme judicial court, upon a bill in there cited. While notice to the clerk by
equity filed by a creditor whose claim has not counsel for the testator of their retirement
been prosecuted within the time limited by the from the case as required by the second
preceding section, deems that justice and equity
require it and that such creditor is not charge common-law rule of the superior court, if it
able with culpable neglect in not prosecuting had been given, might have incited comment
his claim within the time so limited, it may when the clerk notified the plaintiffs' counsel
give him judgment for the amount of his claim of the withdrawal, it would not necessarily
against the estate of the deceased person; but have disclosed the testator's death. The de-
such judgment shall not affect any payment or fendants furthermore are not in any way
distribution made before the filing of such bill." chargeable with the failure of counsel no
The material facts on which the granting longer acting for them to comply with the

of relief must depend are stated in the rec-
ord as follows:

The words "culpable neglect" mean the

neglect which arises from the creditor's own "The firm of Lowney & Harrington appeared carelessness in not seasonably enforcing his for the defendant Smith, a bond to dissolve the attachment in the action was given by Smith claim. Waltham Bank v. Wright, 8 Allen, with his brother Bernard Smith one of his ex- 121, 122; Sykes y Meacham, 103 Mass. 287 ecutors as one of the sureties.

The attach- Leach v. Leach, 238 Mass. 100, 104, 105, 130 ment was dissolved on the assurance of Lowney N. E. 262. It is obvious that, although the & Harrington that the sureties were sufficient case was on the trial list, the plaintiffs made

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