(146 N.E.) 2. Livery stable and garage keepers 41/2-Duty of street commissioners to grant building permit cannot be delegated. Under St. 1913, c. 577, § 3, as amended by St. 1914, c. 119, § 2, empowering board of street commissioners to grant or withhold permits for erection of garages, duty of board cannot be delegated, nor can it make decision or approval of another a condition of its own determination. Report from Supreme Judicial Court, Suffolk County. This duty the board cannot delegate; nor can it make the decision or approval of any other a condition of its own determination. Commonwealth v. Staples, 191 Mass. 384, 77 N. E. 712; Commonwealth v. Maletsky, 203 Mass. 241, 89 N. E. 245, 24 L. R. A. (N. S.) 1168; Brown v. Newburyport, 209 Mass. 259, 95 N. E. 504, Ann. Cas. 1912B, 495. The vote of revocation recites that "the action of the board was under a misunderstanding"; but the record before us fails to show anything in support of this assertion. Whether in any circumstances a misunderCertiorari proceeding by William A. Mc-standing would justify a revocation we do Pherson against the Board of Street Com- not consider. missioners of the City of Boston to quash their proceedings in revoking license or permit issued to petitioner to erect garage. Writ granted. The petition is confined to the revocation of the permit to erect, maintain and conduct a public garage, and does not concern the license to store gasoline which was also W. J. Drew and Jas. H. Duffy, both of granted and revoked. It is, therefore, not Boston, for plaintiff. J. P. Lyons, Asst. Corp. Counsel, of Boston, for respondent. WAIT, J. This case is governed by the law laid down in General Baking Co. v. Street Commissioners, 242 Mass. 194, 136 N. E. 245, and in Lowell v. Archambault, 189 Mass. 70, 75 N. E. 65. [1] The defendants have sought to distinguish it, by urging that the permit granted to erect, maintain and conduct a public garage on the premises was made conditional on approval by the building commissioner, and that such approval had not been obtained before the attempted revocation. The permit bore the words, "This license must be approved by the building commissioner;" but compliance with the notice does not constitute a condition precedent to the validity of the permit. It is true that the owner must comply with all requirements of the law, and that this may necessitate obtaining other and further licenses, permits or approval from other boards or officials; but the permit which he must obtain from the board of street commissioners is distinct from them, and the decision whether to grant or to withhold it is based upon other and different considerations from those which govern their issue. [2] St. 1913, c. 577, § 3, as amended by St. 1914, c. 119, § 2, which requires owners of premises on which they wish to build garages to obtain permits and empowers the board of street commissioners to grant or withhold them, provides that: "Said board shall hear all parties interested, and after giving consideration to the interests of all owners of record notified, and the general character of the neighborhood in which is situated the land or building referred to in the application, shall determine whether or not the application shall be granted and a permit is sued." necessary to consider the contention of the defendants that the gasoline license was void, under Cheney v. Coughlin, 201 Mass. 204, 87 N. E. 744, because the building in which it was to be exercised was not in existence when the application was allowed. The justice who heard the petition was right in ruling that the revocation was invalid; and his order must be affirmed. Writ of certiorari to issue. CINMINO'S CASE. (Supreme Judicial Court of Massachusetts. Suffolk. Jan. 30, 1925.) Master and servant 373-Injury by fall on concrete floor held not hazard of employment. Where employee, for physical reason not connected with employment. fell, striking his sulting therefrom, concrete floor was not a hazface on concrete floor, death subsequently reard of the employment, and injury was not compensable. Appeal from Superior Court, Suffolk County. Proceeding under the Workmen's Compensation Act by Carmelo Cinmino for compensation for death of Eminio Cinmino, her husband, opposed by the Revere Rubber Company, employer, and the Rubber Mutual Liability Insurance Company, insurer. Award of compensation by the Industrial Accident board was affirmed, and the insurer appeals. Reversed, and decree entered. P. L. Keenan, of Boston, for appellant. PIERCE, J. This is a proceeding for compensation under G. L. c. 152, by the widow of Eminio Cinmino, to recover compensation for his death while employed by the Revere Rubber Company at its factory in Chelsea. At the hearing before the board member, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 2. Malicious prosecution 67 Defendant liable for injuries naturally arising from serv. Ice of process. and again on review before the Industrial] ant's conduct with camera men in connection Accident Board, it appeared in undisputed with taking plaintiff's picture, held admissible to evidence that Cinmino, while standing near show malice. a bench waiting for stock to carry to an employee, made an outcry, threw up his hands, "reeled around," and for some physical reason not connected with his employment fell, striking his face on the concrete floor. It was ascertained at the hospital where he was taken that his skull was fractured by the fall upon the floor. He lingered "restless and irrational" until his death on July 14, 1923, approximately one week after the accident. The only question is whether the injury which resulted from the described impact of the head with the concrete floor was Defendant is liable for that which would naturally arise from service of process, or which might be expected as natural consequence thereof, including humiliation, mental suffering, and what was done by officers, change in contiff, and any financial loss to plaintiff. duct and manner of acquaintances toward plain 3. Malicious prosecution 58(1)—Evidence of conversations between plaintiff and defendant competent. Evidence of conversations between plain with theft, was competent. a risk and hazard of the employment; or, tiff and defendant, when he was charging her otherwise expressed, was there a causal connection between the conditions under which the work was to be performed and the injury which resulted. McNicol's Case, 215 Mass. 497, 102 N. E. 697, L. R. A. 1916A, 306. We think there is no measurable distinction between the hazard of an employment where the floors are made of concrete and an employment where the floors are of hard wood, of soft wood, or of dirt, because of the fact that one material is of greater or less resiliency than another. To hold that a concrete floor in a place of employment is a danIger which effects the risks which an employee encounters and is a hazard which arises out of an employment, would require a further holding, when the occasion arose, that any flooring of any material is a hazard of employment against which the statute gives compensation whenever there is a causal relation between the hazard and the injury. The causal relation in such a case is too remote and speculative for practical application. There is no substantial resemblance between the case at bar and where a man seized with an epileptic fit fell into the hold of a vessel, Wisks v. Dowell [1905] 2 K. B. 225; where a man from physical weakness fell into a machine, Dow's Case, 231 Mass. 348, 121 N. E. 19; where a woman caught her heel and fell upon a step, Hallett's Case, 232 Mass. 49, 121 N. E. 503. It results that the decree of the superior court must be reversed and a decree be entered for the insurer. So ordered. RICH V. ROGERS. (Supreme Judicial Court of Massachusetts. Suffolk. Jan. 27, 1925.) 1. Malicious prosecution 60(1)-Testimony concerning publications held admissible to show malice. Testimony concerning publication in newspapers, interviews with reporters, and defend 4. Malicious prosecution 58(1)-Plaintiff's statement explaining possession of tickets alleged stolen held admissible. Statement of plaintiff to officer, when her handbag was searched, explaining presence of tickets alleged to have been stolen, and that she did not know they were there and why she did not know, was admissible, where she had previously stated to officer that tickets were not in bag. 5. Trial 91-Refusal to strike hearsay testimony, admitted without objection, concerning plaintiff's arrest, held within court's discretion. Where hearsay testimony of police lieutenant that he understood that plaintiff was under arrest before she came to station was admitted without objection, held, that it was within court's discretion to deny defendant's motion to strike it out; it being undisputed that she was arrested at some time. 6. Libel and slander 100 (8) - Proof that words were spoken substantially as alleged is sufficient. It is sufficient to prove that words were spoken substantially as alleged. 7. Malicious prosecution 56-Plaintiff must prove malice and absence of probable cause. Plaintiff has burden of proving that she was prosecuted both maliciously and without probable cause; burden of latter issue requiring proof that defendant had no reason which would lead an ordinarily prudent and careful man to belief that plaintiff had committed larceny charged, or strongly and honestly to suspect that she had. 8. Malicious prosecution 72(1)—Instruction on right of defendant to state facts to police and leave matter to their judgment held properly refused, under evidence. Where complaint in larceny was made by defendant personally, it was proper to deny his request relating to right of person who believes that crime has been committed to state facts which he has heard and believes to be true to police officer, and then to leave matter to officer to act on his own judgment in regard to prosecution. 9. Libel and slander 123(1) (146 N.E.) Malicious competent, and the defendant's motion to strike out the plaintiff's statements to the defendant was properly denied. The statement of the plaintiff to the officer when her bag was searched, explaining the presence in the bag of the tickets alleged to be stolen, was admissible. She had previously said to the defendant, and to the officer who found In action for slander and for malicious prosecution, where testimony supported every material issue, defendant's motion for directed verdict was rightly denied. Exceptions from Superior Court, Suffolk | the tickets, that they were not in the bag; County; J. F. Brown, Judge. Action of tort by Sarah Rich against Frank M. Rogers to recover for slander and malicious prosecution. Verdict for plaintiff, and defendant excepts. Exceptions overruled. and she was entitled to prove that she did not know they were there, and also to state to the officer her reason for not knowing. The witness had previously testified without objection that she had told her brother to put these tickets on a table in her home. It was competent for her to show, by her broth Sawyer, Hardy, Stone & Morrison, of Bos-er, that he put the tickets in her bag withton (J. M. Morrison and J. W. Coughlin, both of Boston, of counsel), for plaintiff. out her knowledge. The testimony of the lieutenant that he understood that the plain W. J. Patron and C. A. McDonough, both tiff was under arrest before she came to the of Boston, for defendant. SANDERSON, J. This is an action of tort, with a declaration in two counts-the first, for slander in publicly accusing the plaintiff of larceny; and the second, for malicious prosecution of the plaintiff upon a charge of larceny. The jury returned a verdict for the plaintiff on each count. The exceptions of the defendant relate to the admission of evidence, and to the refusal of the trial court to give the rulings requested and to direct a verdict for the defendant on each count. [1, 2] The exceptions to the admission of evidence must be overruled. The testimony objected to concerning publications in newspapers, interviews with reporters and the defendant's conduct with a camera man in connection with taking the picture of the plaintiff, was admissible to show malice. In the charge the judge ruled that the defendant was not liable for anything that happened as a result of newspaper articles. In an action for malicious prosecution the defendant is liable for that “ 'which would naturally arise from the service of the process or which * * * might be expected' to happen as 'the natural consequence of the service of the process.' ." Laing v. Mitten, 185 Mass. 233, 234, 70 N. E. 128, 129. This includes humiliation, mental suffering, everything done by officers at the police station within their authority, the change in the conduct and manner of acquaintances toward the plaintiff and any financial loss resulting to her directly from the prosecution. Markham v. Russell, 12 Allen, 573, 90 Am. Dec. 169; Wheeler v. Hanson, 161 Mass. 370, 37 N. E. 382, 42 Am. St. Rep. 408. The testimony objected to bearing on these issues was therefore competent. [3-5] Conversations between the plaintiff and the defendant when he was charging her with stealing the tickets in question were station was admitted without objection; and [6] The defendant made seven requests for rulings, none of, which were given in terms, but they were given in substance in so far as the defendant was entitled to them. On the charge the jury could not have returned a verdict for the plaintiff on the count for slander unless they found that "the words were maliciously and falsely spoken, and that they were substantially as set out in the declaration." Brow v. Hathaway, 13 Allen, 239. It is enough to prove that the words were spoken substantially as alleged. Baldwin v. Soule, 6 Gray, 321; Pion v. Caron, 237 Mass. 107, 129 N. E. 369. [7, 8] On the count for malicious prosecution, the jury were instructed, in substance, that the plaintiff has the burden of proving that she was prosecuted both maliciously and without probable cause, and that on the latter issue this burden required the plaintiff to prove that the defendant had no reason which would lead an ordinarily prudent and careful man to believe that the plaintiff had committed the larceny charged or strongly and honestly to suspect that she had. The defendant's fifth request, relating to the right of a person who believes that a crime has been committed to make a statement of the facts, which he has heard and believes to be true, to a police officer, and then to leave the matter to the officer to act upon his own judgment in regard to a prosecution. was properly denied. The complaint was made not by the officer but by the defendant personally. Burnham v. Collateral Loan Co., 179 Mass. 268, 60 N. E. 617; Griffin v. Dearborn, 210 Mass. 308, 313, 96 N. E. 681. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [9] Testimony was offered in the case in support of every material issue on each count. The motion for a directed verdict was, therefore, rightly denied. Exceptions overruled. SELWYN v. HARRIS. SAME v. SELWYN. (Supreme Judicial Court of Massachusetts. Suffolk. Jan. 31, 1925.) the Boston Storage Warehouse Company be joined as a party defendant, that a restraining order theretofore issued in the case be modified, and that the master's report be recommitted, all of which were denied. An interlocutory decree was then entered confirming the report and was followed by a final decree dismissing the bill with costs in a stated sum. The plaintiff appealed from the orders denying his motions and from the interlocutory and final decrees. In the second case Mary A. Selwyn seeks to recover from her husband Peter G. Selwyn, or to have him account to her for, certain 1. Appeal and error 967 (2)—Equity 412 rugs which she owned and intrusted to him -Motion to recommit master's report ad- for a special purpose, but which he has redressed to court's discretion; appeal from fused to return; and she also asks to have order refusing to recommit to master pre-him ordered to discontinue an action at law sents no question of law. brought in his name and hers to recover a Motion to recommit master's report is ad-sum due her for property sold, alleging that dressed to discretion of court, and appeal from her husband became a party plaintiff in said order refusing motion to recommit presents no action without her knowledge or consent. A final decree was entered in this case, stating that the defendant was in possession of funds of the plaintiff and ordering him to pay the amount thereof to the plaintiff, and also restraining him from interfering with the disposition of said action at law or from claiming any of the proceeds that may be question of law. 2. Appeal and error 4-Appeals from interlocutory decrees confirming master's report properly entered. Where there were no exceptions to master's report, appeals from interlocutory decrees confirming them were properly entered. Appeal from Superior Court, Suffolk Coun- realized therefrom. The defendant entered ty; P. J. O'Connell, Judge. appeals in this case similar to those entered in the suit of Selwyn v. Harris. Separate bills by Peter G. Selwyn against The master found that none of the propJeannie Harris to recover certain articles of erty taken by the defendant Harris was ownpersonal property, and by Mary A. Selwyn ed by Peter G. Selwyn, and that all of it against Peter G. Selwyn to recover from dewas taken under authority given her by fendant, or have defendant account for, cer- Mary A. Selwyn; that Mary A. Selwyn owntain rugs intrusted to him, and for other re-ed the rugs which she is seeking to recover lief. Cases referred to same master, who filed one report. From decrees in first case and order denying motion to join other defendant, and in second case from decrees for complainant, Peter G. Selwyn appeals. Affirmed. Chas. J. Miller, of Boston, for appellant. from her husband; that she acquiesced in the bringing of said action in her name and his, but that she is entitled to the money which may be recovered in that action. [1, 2] The motion to recommit the master's report in each of these cases was addressed to the discretion of the court, and the appeals from the orders relating thereto present no question of law to be decided. There were no exceptions to the master's report and the appeals from the interlocutory decrees confirming them were properly entered. The final decree in each case is based upon and justified by facts found by the master. French v. Peters, 177 Mass. 568, 59 N. E. 449; American Stay Co. v. Delaney, 211 Mass. 229, 97 N. E. 911, Ann. Cas. 1913B, 509. SANDERSON, J. These are two bills in equity. In the first the plaintiff, Peter G. Selwyn, seeks to recover from the defendant, Harris, certain articles of personal property, described in a schedule annexed to the bill of complaint, which he alleges the defendant has wrongfully taken and secreted. The defendant denies that the plaintiff owned the articles described in the schedule, and further answering alleges that she received certain articles from the plaintiff's wife which were the wife's property and for which the defendant paid. This case and that of Selwyn v. Selwyn were referred to the same master, who filed one report covering both cases. After the report came in, motions were made in behalf of Peter G. Selwyn that So ordered. The decrees are to be affirmed, with costs of the appeal to the prevailing party in each case. In view of the suggestion, made to the court in the brief for Peter G. Selwyn, that Mary A. Selwyn died July 26, 1924, the decree in her case is to be affirmed as of its date, June 2, 1924, nunc pro tunc. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (146 N.E.) RATNER et al. v. HOGAN. (Supreme Judicial Court of Massachusetts. Middlesex. Jan. 30, 1925.) 1. Executors and administrators 358 (3)Appeal stayed decree licensing administratrix to sell land. Under G. L. c. 215, §§ 22, 29, appeal from decree licensing administratrix to sell land stayed decree, and all action under it was void, unless decree was affirmed. 2. Executors and administrators 358 (3)Administratrix's deed held to convey no title, In view of appeal from decree licensing sale. Where appeal from probate decree licensing administratrix to sell land was "discharged without prejudice," and there was no subsequent action in probate court, deed from administratrix executed prior to appeal was void, and party claiming thereunder had no title. 3. Landlord and tenant 296 (2)-To recover possession under statute, proof of relation between parties and termination of tenancy is essential. To recover possession of land under G. L. c. 239, § 1, it is essential that there be proof of relation of lessor and lessee, or of landlord and tenant, between parties, or between oc cupant and person through whom plaintiff claims, and that tenancy should have been terminated. 4. Landlord and tenant 309-Whether tenancy existed between parties held, under evi dence, for jury. In action under G. L. 239, § 1, for possession of premises, where there was no evidence of tenancy between decedent, under whom plaintiff claimed, and defendants, question whether such relation existed between plaintiffs and defendants held, under evidence, for jury, and directed verdict for plaintiffs was erro neous. Exceptions from Superior Court, Middlesex County; Wm. M. Priest, Judge. Action by Dora Ratner and another against Thomas Hogan to recover possession of certain premises. Verdict was directed for plaintiffs, and defendant excepts. Exceptions sustained. A. D. Epstein and P. J. Aronson, both of Boston, for plaintiffs. C. G. Morgan, of Boston, for defendant. The of the probate court authorizing the sale of the premises, on July 21, 1923, one Mary C. ceased Reginald T. Pyle, as also "a joint Hogan, claiming to be a creditor of the deowner in common" of the premises licensed to be sold as of the estate of Reginald T. Pyle, filed in the probate court a notice of an appeal to the Supreme Judicial Court. appeal was "discharged without prejudice" by the full court on November 19, 1923. No action in the probate court has since been taken on the petition for a license to sell the premises for the payment of debts and charges of, administration. The appeal stayed the decree granting the license (G. L. c. 215, § 22), and all action under it is void unless the decree be affirmed (G. L. c. 215, § 29; Stone v. Duffy, 219 Mass. 178, 106 N. E. 595). It follows that the deed of the administratrix to the plaintiffs, dated July 16, 1923, is invalid, and, upon the facts disclosed in the record, it further follows that the plaintiffs by reason of the deed have no title or right to possession in the premises occupied by the defendant and his wife. Daley v. Francis, 153 Mass. 8, 26 N. E. 132. [3, 4] To recover the possession of real estate under the provisions of G. L. c. 239, § 1, it is essential that there should be proof of the relation of lessor and lessee, or of landlord and tenant, between the plaintiff and defendant or between the occupant and a person through whom or under whom the plaintiff claims, and that the tenancy previously subsisting should have been terminated. Hildreth v. Conant, 10 Metc. 298, 302; Howard v. Merriam, 5 Cush. 563, 567, 583, 584; Marsters v. Cling, 163 Mass. 477, 40 N. E. 763. In the case at bar there is no evidence that such relation ever existed between the intestate, Reginald T. Pyle, and the defendant or his wife. When this action was brought the plaintiffs therefore were required to prove by a contract express or implied that such a relation existed between themselves and the defendant. The evidence at the trial, offered to establish the indispensable fact of a tenancy between the plaintiffs and the defendant, in substance is that a husband of one of the plaintiffs on July 16, 1923, demanded of the wife of the defendant, in his absence, and received of her $32 as one month's rent of the premises and gave her a receipt reading as follows: PIERCE, J. [1, 2] This is an action under G. L. c. 239, § 1, by an alleged landlord, to recover possession of certain premises, in Cambridge, in the possession of the defendant. The plaintiffs claim title to the premises under a deed dated July 16, 1923, given by Gertrude L. Pyle in her capacity as administratrix of the estate of Reginald T. Pyle, under a license of the probate court of the county of Suffolk, dated July 3, 1923. Within 20 days after the entry of the decree the receipt as follows: "July 13, 1923. "Received of Mrs. Hogan thirty ($32) for rent up to Aug. 13th, 1923, in 326 Concord avenue, Cambridge. "By L. Ratner. "Kindly vacate flat by Aug. 13, 1923." Subject to the exception of the defendant the husband, L. Ratner, testified concerning the payment of the money and the giving of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |