« ForrigeFortsett »
the debt or satisfy the cause of action for secure the same to his own use or, to defraud which he is arrested ; and either party may his creditors, may be decided in the same way." introduce additional evidence. The plaintiff or creditor may upon such examination pro-authorizes the court to order a debtor to as
The only provision in G. L. c. 224, which pose to the defendant or debtor interrogato- sign property to a creditor is that contained ries pertinent to the inquiry. Section 32 pro- in section 12, which relates to proceedings on vides that,
a creditor's application for arrest on execu"If, upon the examination, the court is sat-tion and is limited to property that cannot isfied that the facts set forth in the oath to be taken on execution. In the proceedings be taken by the * * debtor, and in the based upon the application of a debtor to certificate (therein] provided for true, it shall administer to him the
take the oath for relief of poor debtors, the oath.”
court has no authority to make an order for
the transfer of the debtor's property to the The material provisions of the oath are creditor. that the debtor has not any property to the Judgment reversed. amount of $20 except the property which is Mandate to issue accordingly. by law exempt from being taken on execution, but not excepting intoxicating liquors; and that he has not any other property now conveyed, concealed, or in any way disposed
BEALE V. DAVIS. of with the design to secure the same to his own use nor to defraud his creditors. The (Supreme Judicial Court of Massachusetts. certificate states in substance that the facts
Middlesex. Jan. 31, 1925.) stated in the oath have appeared and that 1. Courts en 202(5)-Appeal from probate on the oath was administered.
statement of counsel as to expected evidence In Damon v. Carrol, 163 Mass. 404, 410, reviewed as appeal from decree with full re40 N. E. 185, 188, the court said:
port. "The debtor's recognizance required him to
Probate appeal on stenographic report of deliver himself up for examination. This
statements of counsel as to expected evidence means the examination provided by Pub. Sts. is before appellate court exactly as appeal c. 162, § 38 (G. L. c. 224, s. 30], for a judg- from decree in equity, with full report of eviment debtor arrested upon execution who has dence, and brings up questions of fact as well given notice that he desires to take the oath as law, and it is court's duty to examine statefor the relief of poor debtors. When a debtor ments and evidence relied on, and decide case procures such a notice to be served, the cred according to its own judgment, giving due reitor thereby acquires the right to examine the gard to judge's findings. debtor in the mode and with the results point. 2. Wills Em316(1)-Jury issue as to whether ed out by that section; that is to say, the right
will was legally signed rightly denied. to have the magistrate examine the debtor on oath concerning his estate and effects, the dis
Motion to frame jury issue as to whether posal thereof, and his ability to pay the debt will was legally signed was rightly denied, for which he is arrested; and the creditor may where execution was as required by G. L. C. propose to the debtor any interrogatory perti- 191, § 1; testator having made his mark, his nent to the inquiry. * * These rights, name being signed by his express direction. which the debtor by invoking the statutes has 3. Wills am 316(1)-Denial of jury issue as to conferred upon the creditor, may bring disclo
unsoundness of mind of testator held not sures which may enable him to satisfy his
abuse of discretion. judgment."
Denial of motion to frame jury issue as to In Fletcher v. Bartlett, 10 Gray, 491, Chief unsoundness of testator's mind held, under eviJustice Shaw stated in substance that the dence, not abuse of probate judge's discretion. ordinary inquiry in an examination upon an application of a debtor to be admitted to take
Appeal from Probate Court, Middlesex the poor debtor's oath was "whether the County; L. E. Chamberlain, Judge. debtor had property, and if he had, the oath Petition by George R. Beale for the prowas refused, and from the decision of the bate of the will of Charles R. Hill, deceased, magistrate on this point there was no ap- contested by Pamelia C. Davis. From an peal."
order of the Probate Court, denying contest. The court said in Mowry's Case, 112 Mass. ant's motion to frame issues for jury, con394, 397:
testant appeals. Order affirmed. “The simple issue, whether the debtor has in J. J. Flynn, of Waltham (J. I. Rooney, of his possession property not exempt by law Waltham, on the brief), for petitioner. from being taken on execution, is in all cases summarily and conclusively decided by the mag
E. C. Thayer, of Boston, for respondent. istrate; and if no charges of fraud are made by the creditor, the question whether the debtor
CARROLL, J. This is an appeal from an has any other property conveyed or concealed order of the probate court, denying a motion or in any way disposed of, with the design to of the contestant to frame issues for trial
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
(146 N. E.) by a jury, on a petition for the allowance of sthe will the testator was removed from her the will of Charles R. Hill. These issues the home, and that he complained of the lack of contestant moved to have framed:
proper care on her part. We see nothing in “(1) Was the instrument purporting to be the report of the expected evidence showing the last will of said Charles R. Hill, dated that the discretion of the probate judge was March 3, 1923, executed according to law?
unwisely used. In our opinion his decision “(2) Was the said Charles R. Hill, at the in denying the framing of this issue should time of the execution of said alleged will, of not be reversed. old Colony Trust Co. v. sound mind?
Spaulding (Mass.) 145 N. E. 927; Clark v. “(3) Was the execution of said alleged will McNeil, supra. of said Charles R. Hill procured by the fraud
As to the third issue, we find nothing in or undue influence of Waldo and Wilford Hill
, the report of the evidence indicating any or any of them, exercised upon the said
abuse of discretion. Charles R. Hill?"
The decision of the probate court refusing  No evidence was offered, but counsel the framing of issues must stand. for the contestant and for the proponent of
Order affirmed. the will, made extended statements as to the evidence within their knowledge and control. Cook v. Mosher, 243 Mass. 149, 137 N. E. 299. I WALSH v. FEINSTEIN et al. (two cases.) A probate appeal on a stenographic report of the statements of counsel as to the expected (Supreme Judicial Court of Massachusetts. evidence is before this court exactly as an
Suffolk. Jan, 30, 1925.) appeal from a decree by a judge in equity
1. Municipal corporations Cm706 (7)-Whethwith a full report of the evidence. Questions
er pedestrian acted with reasonable prudence of law, as well as questions of fact, are to be held for jury. determined by us, and it is our duty to ex
Evidence that pedestrian watched automoamine the statements and the evidence relied bile truck slow down and almost stop when she on and to decide the case according to our started to cross street held to authorize subown judgment, giving due regard to the find- mission to jury of question whether she acted ings of the judge of probate, and to the fact with reasonable prudence. that his discretion in refusing to frame is 2. Master and servant ma 332 (2)—Whether. sues is of importance and weight, and will be
chauffeur's use of automobile truck to go to carefully considered when his decision is be- dinner was authorized by employer held for fore this court on appeal. Fuller v. Sylvia, jury. 240 Mass. 49, 133 N. E. 384; Cook v. Mosher, Evidence held to authorize submitting to supra; Clark v. McNeil, 246 Mass. 250, 255, jury question whether chauffeur's use of au140 N. E. 922; Old Colony Trust Co. v. Pep- tomobile truck to go to dinner was authorized per, 248 Mass. 263, 142 N. E. 817; Wilbar v.
and approved by employer. Diamond, 249 Mass. 568, 144 N. E. 462.
3. Witnesses Em 276–Permitting cross-exami On the first issue there was evidence nation of defendant as adverse witness as to that the testator made his mark to the will, statements made by chauffeur held not abuse his name being signed by his express direc- of discretion. tion. The statement of the proponent's coun- In action by pedestrian for injuries resel showed that its execution was in all re- sulting from collision with defendant's autospects as required by G. L. c. 191, 8 1. In mobile truck, driven by his chauffeur, where dedenying this issue the judge of probate was fendant was examined by plaintiff as witness, right.
under G. L. c. 233, $ 22, there was no abuse
of discretion in permitting cross-examination  On the second issue (the unsoundness
as to what chauffeur said when he reported of mind of the testator) the contestant assert- accident. ed that the testator was 70 years of age, had suffered a shock, that a conservator had 4. Witnesses em 276–Cross-examination of been appointed for his property in August,
party called as witness rests in court's dis.
cretion. 1922, and that the nurse, who was in attendance and witnessed the will, was of opinion under G. L. c. 233, § 22, may cross-examine
Party who calls adverse party as witness, that the testator was of unsound mind at the him; extent thereof resting largely in trial time the will was signed. On the other hand court's discretion. it appeared from the statements of the proponent's counsel, who related in great detail 5. Evidence Emo 219(1)—Mental reaction of many remarks of the testator and referred
owner when he heard story of automobile
accident and reply to his question held releto many facts and incidents, that the testa
vant. tor was in possession of his faculties, that he
In action for injuries from collision with fully understood the business before him and automobile driven by defendant's chauffeur, was thoroughly competent to make a will. mental reaction of owner, when he heard It was also stated that the nurse was prej- chauffeur's story and received reply to his udiced and biased, that shortly after making question, was relevant in proof that chauffeur
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
was actually in performance of duty to de- , ward Boston; she saw an automobile truck fendant when collision happened.
coming toward her on the inbound track, 6. Appeal and error Om 1050(1)-Answer hav. at the rate of 8 miles an hour and distant ing no probative value held harmless.
25 feet. As she watched the truck it slowed In action for injuries from automobile col-down quite a bit and almost stopped; then lision, where defendant's answer to question she started to cross the rails of the inbound
to whether chauffeur had made certain track, and then before she had crossed, the statement when he told him how accident hap- truck lurched forward and struck her with pened had no probative value, its admission the right mudguard. On the foregoing facts, was harmless.
the jury properly could find as an inference
of fact that the plaintiff had reason to think Exceptions from Superior Court, Suffolk that the truck was slowed down by its driver County; F. W. Fosdick, Judge.
for the purpose of giving her an opportunity Separate actions of tort by Alice Walsh, to cross in safety, and could find therefrom p. p. a., and by Michael Walsh, against Israel that she had acted with reasonable prudence. A. Feinstein and others. Defendants' mo
 The evidence on the issue, whether the tion for directed verdict was denied, and defendant's chauffeur was acting within the they except. Exceptions overruled.
scope of his employment, at the time of the W. B. Keenan, of Boston, and S. L. Solo- which'follow. The driver of the truck, one
injury, warranted a finding of the facts mont, of Roxbury, for plaintiffs.
Stafford, at the time of the accident was and W. B. Downey, of Hingham, for defend- had been for more than six months in the ants.
employment of the defendants, as a chauf
feur, in charge of trucks. His hours of PIERCE, J. These are two actions of tort work were from 8 in the morning until 6 at arising as the result of personal injuries night and he had no usual dinner hour. His received by the plaintiff Alice Walsh, a
instructions were to use the automobile when minor, when an automobile truck of the de- he was going to his dinner. On the day of fendants came in contact with her, on Broad the accident he was instructed to go to South way, South Boston, on January 19, 1920. Boston and get some goods at the Standard Both cases were tried together in the su
Supply Company. When he got to the place perior court and resulted in verdicts for the men "were on their lunch hour and the both plaintiffs. At the close of the evidence, place was closed.” He then started to drive the defendants moved for directed verdicts, to his mother's house, three-fourths of a mile and the case is before this court on the re- beyond, to get his dinner, and was then gofusal of the presiding judge so to order. The defendants contend that the verdicts to get the goods. The accident happened be
ing back to the Standard Supply Company should have been directed because (1) “Staf- fore he reached his mother's house. The ford, the defendants' chauffeur, was not act
jury on the evidence was warranted in making within the scope of his employment at ing the specific finding that Stafford on that the time of the accident”; and (2) "plaintiff particular day was instructed to use the Alice Walsh was not in the exercise of due
car to go to his dinner, and in further findcare.” The defendants do not formally or ing that the use of the car was for the finaninferentially contend that the chauffeur was
cial gain of the employer and not for the not negligent.
mere convenience or pleasure of the driver.  The evidence in this aspect most fa- The evidence was ample that the instructions vorable to the plaintiffs, upon the issue of to use the automobile to go to dinner were the due care of Alice Walsh, warranted a authorized and approved by the defendants. finding of the facts which follow. Shortly
The case is governed by Reynolds v. Denbefore one o'clock on the afternoon of the holm, 213 Mass. 576, 100 N. E. 1006, and Mcday of her injury, Alice Walsh, about 15 Keever v. Ratcliffe, 218 Mass. 17, 105 N. E. years of age, accompanied by her mother 552, and not by Hartnett v. Gryzmish, 218 was waiting in front of a drug store at the Mass. 258, 105 N. E. 988. corner of C street and West Broadway,
 The defendant Samuels called to tesSouth Boston, for a trolley car outbound for tify by the plaintiff, in response to questions Boston. The car finally arrived and stopped put to him by the plaintiff, in substance 10 feet on the Boston side of the crosswalk, testified that he heard from the chauffeur where the plaintiff and her mother were
that he was on his way to dinner the day standing. The daughter left her mother on
the accident happened. Samuels was then the corner to await her return while she asked, "What did he say to you?" and rewent back across West Broadway to her
plied: house to get some money which her mother had forgotten to bring with her. Walking
"He told me he had gone to South Boston
to get some goods of mine, and when he got on the crosswalk she passed the rear end of
to the place it was somewhere around noon the trolley car, over the rails of the out- hour, and the fellows who were going to give bound track, stopped there and looked to- him the goods weren't there, so he thought
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
(146 N.E.) he would run over to his house to lunch, be- 12. Municipal corporations em 218(2)-Boston, cause he lived in South Boston. I don't re- in discharging laborers, is subject to civil serve member whether he said it was on his way to ice rules. lunch, or on the way back that this accident
Under G. L. c. 31, $$ 3, 47, city of Boston, happened."
in employing and discharging laborers, is sub
ject to statutes and rules relating to civil servSubject to the exception of the defendant, ice. Samuels was then asked, “What did you say to him when he told you that?" and replied
3. Municipal corporations em 218(4)-Veteran
employed by transit department held entitled thereto:
to notice and hearing before discharge. "I asked him if the girl had been badly hurt, In view of St. 1914, c. 636, and St. 1918, c. and he said, 'No; he didn't think so.' I said, 24, right of transit commission of city of Bos'Well, if she wasn't badly hurt, there is noth-ton under St. 1894, c. 548, 88 23, 24, to remove ing to worry about.' And I might have said its employees at pleasure was abrogated as to that there is nothing to worry about if she employees appointed under the civil service and isn't badly hurt.''
entitled to veteran's preference by Sp. St. 1918,
c. 185, providing for transfer of power of [4, 5] G. L. c. 233, $ 22, provides :
commission to city of Boston, and veteran was
Report from Supreme Judicial Court, Suf-
Mandamus by Alexander Cassidy against
Writ 1. Crocker, 7 Metc. 262, 266. Here there is cause for removal from employment. no evidence of an abuse of that discretion. ordered issued by single justice, and case reMoreover, the mental reaction of Samuels ported to full court. Writ issued. when he heard the story and received the P. C. Borre, of Boston, for petitioner. reply to his question was relevant in proof J. P. Lyons, Asst. Corp. Counsel, of Boston, that the chauffeur was actually in the per- for respondent. formance of his duty to the defendants when he drove the automobile against the plaintiff. SANDERSON, J. Upon the admitted facts McKeever v. Ratcliffe, supra.
in the case, the petitioner is a veteran and  No legal harm resulted to the defend- so certified on the civil service rolls, and enants through the answer of Stafford, “He titled to veteran's preference within the may have,” to the question "Did Mr. Samuels meaning of G. L. c. 31. On or about Sepsay those words to you (reading the answer tember 21, 1921, the civil service department of Samuels to the plaintiff, above quoted] of the commonwealth assigned him for perwhen you went back and told him how the manent service as a subway blacksmith, Bosaccident happened?” As proof that Samuels ton Transit Department. Under date of did make the statement testified to by him, April 2, 1924, he was notified in writing by the answer of Stafford is manifestly of no Thomas F. Sullivan, chairman of that deprobative value.
partment, that his services would be termiWe find no error in the conduct of the nated at the close of business April 5, by reatrial or in the refusal to rule as the defend son of lack of work. On May 13, 1924, this ants requested.
petition for a writ of mandamus was filed, Exceptions overruled.
alleging that the petitioner was illegally discharged by the head of a city department because he was not given the notice and hearing to which a veteran is entitled under G. L. c. 31, § 26. The defendants in their an
swer denied that the petitioner was employ. CASSIDY V. TRANSIT DEPARTMENT OF
ed by a city department, and contended that CITY OF BOSTON.
the transit department of the city of Boston (Supreme Judict Court of Massachusetts. was created by an act of the Legislature for Suffolk, Feb. 2, 1925.)
the purpose of constructing subways in Bos1. Municipal corporations C218(4) -Veterans
ton and that it is not governed, in the reentitled to notice and hearing before removal moval of employees, by G. L. c. 31, § 26. The
single justice of this court who heard the Veterans employed in public service of a
case found that the petitioner was employed city are entitled to notice and hearing provided as a blacksmith by the transit department for in G. L. c. 31, § 26, before removal from of the city of Boston, Spec. St. 1918, c. 185;
that he was discharged for lack of work, as OwFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
stated by the department in the order for his , and hearing provided for in G. L c. 31, $ 26, discharge; and that G. L. C. 31, § 26, was before being removed from such employment. not complied with. He ordered the writ to The city of Boston in employing and disissue and reported the case for the deter- charging laborers is subject to the statutes mination of the full court.
and rules relating to the civil service. G. L. The Boston Transit Commission was creat- c. 31, $$ 3, 47; McCarthy v. Emerson, 202 ed by St. 1894, c. 548, § 23, approved July Mass. 352, 88 N. E. 668; Ransom v. Boston, 2, 1894. By section 24 of the act the com- 192 Mass. 299, 78 N. E. 481, 7 Ann. Cas. 733 ; mission was given authority to choose such Ayers v. Hatch, 175 Mass. 489, 490, 56 N. E. engineers, clerks, agents, officers, assistants 612. and other employees as it may deem neces  If it be assumed that the right to resary, to determine the duties and compensa- move at pleasure an employee in the labor tion of such employees, and to remove the service of the transit commission continued same at pleasure. The term of office of mem- until the transfer of its powers to the city of bers of the commission was extended from Boston, a question which we do not decide, time to time until July 1, 1918 (Spec. St. that right did not continue in the city of 1917, c. 368). In Mahoney V. Boston, 171 Boston as to employees appointed under the Mass. 427, 429, 50 N. E. 939, the court in dis- civil service and entitled to veterans' prefer. cussing the status of employees of the trans- ence. It is to be noted that the Legislature it commission said:
had already, by St. 1914, c. 636, provided "The commission constitutes in effect a spe
that laborers einployed by the Boston Transcial board, established by the Legislature for the it Commission should be deemed to be in the purpose of laying out and building in the city service of the city of Boston within the proof Boston at the expense of that municipality visions of the Workmen's Compensation Act public ways along certain lines and between cer for public employees and to be entitled to tain termini, and for that purpose it is given the compensation provided by that act, and large powers and is rendered independent of any it may have been one of the purposes of the control or direction on the part of the city of Legislature in transferring the powers and Boston. The city authorities have nothing to duties of the transit commission to the city do with the manner in which the work shall be of Boston to give the employees in the transdone, or with the persons engaged in its per- it department the rights of employees unformance; they have no control over the transit commissioners, and no voice in fixing the der the civil service as well as all other terms and rates for the use of the subway when rights which are incident to such employcompleted, or any part thereof."
ment. This interpretation of the act finds
some support in St. 1919, c. 24, which auBy Spec. St. 1918, c. 185, entitled "An act thorized the transfer of laborers and all to provide for the transfer of the powers other employees who were in the employ of of the Boston Transit Commission to the city the Boston Transit Commission on January of Boston," it was provided that upon the 1, 1918, to any city in the metropolitan disexpiration of the term of office of the Bos-trict without examination and notwithstandton Transit Commission “the city of Boston ing any restrictions in the civil service laws shall have all the powers and privileges, or regulations applicable to such transfer and be subject to all the duties, restrictions upon a request to that effect by the head of and liabilities heretofore conferred or im- a department in any such city. posed upon the commission and remaining in In Logan v. Mayor and Aldermen of effect at the date of the passage of this act.” Lawrence, 201 Mass. 506, 88 N. E. 9, the Section 1. The powers and duties therein question was raised whether St. 1906, c. 210, referred to were to be exercised by the may extending the civil service act to police of or, commissioner of public works, and city ficers of cities and giving them the right not treasurer, or by such person or persons, not to be removed except for just cause and for exceeding three, as may be appointed by the reasons specifically given in writing, applied mayor. The powers conferred and duties to the city of Lawrence by whose charter imposed by the act are exercised by three (St. 1853, c. 70, as amended by St. 1887, C. men appointed under its authority and 397) the power to appoint and remove police known as the transit department of the city officers was given to the mayor and alderof Boston.
The city of Lawrence had accepted The question to be decided is, whether the the provisions of the civil service law (R. L. right to remove employees at pleasure, given c. 19) in the manner provided in section 36 the transit commission in the act creating of that chapter. It was in that case conit, is now in force so that employees in the tended that statutes of a general nature do transit department of the city of Boston not repeal by implication charters and special may be discharged at pleasure. The em acts passed for the benefit of particular muployees working in this department are in the nicipalities. The court said, referring to St. service of the city of Boston and are its 1906, c. 210: employees.
"This was enacted as a part of the broad [1, 2] Veterans employed in the public scheme designed to bring about a reform in the service of a city are entitled to the notice civil service not only of the commonwealth it.