Sidebilder
PDF
ePub

(146 N.E.)

by a jury, on a petition for the allowance of the will of Charles R. Hill. These issues the contestant moved to have framed:

"(1) Was the instrument purporting to be the last will of said Charles R. Hill, dated March 3, 1923, executed according to law? "(2) Was the said Charles R. Hill, at the time of the execution of said alleged will, of sound mind?

"(3) Was the execution of said alleged will of said Charles R. Hill procured by the fraud or undue influence of Waldo and Wilford Hill, or any of them, exercised upon the said Charles R. Hill?"

[1] No evidence was offered, but counsel for the contestant and for the proponent of the will, made extended statements as to the evidence within their knowledge and control. Cook v. Mosher, 243 Mass. 149, 137 N. E. 299. A probate appeal on a stenographic report of the statements of counsel as to the expected evidence is before this court exactly as an appeal from a decree by a judge in equity with a full report of the evidence. Questions of law, as well as questions of fact, are to be determined by us, and it is our duty to examine the statements and the evidence relied on and to decide the case according to our own judgment, giving due regard to the findings of the judge of probate, and to the fact that his discretion in refusing to frame issues is of importance and weight, and will be carefully considered when his decision is before this court on appeal. Fuller v. Sylvia, 240 Mass. 49, 133 N. E. 384; Cook v. Mosher, supra; Clark v. McNeil, 246 Mass. 250, 255, 140 N. E. 922; Old Colony Trust Co. v. Pepper, 248 Mass. 263, 142 N. E. 817; Wilbar v. Diamond, 249 Mass. 568, 144 N. E. 462.

[2] On the first issue there was evidence that the testator made his mark to the will, his name being signed by his express direction. The statement of the proponent's counsel showed that its execution was in all respects as required by G. L. c. 191, § 1. In denying this issue the judge of probate was right.

[3] On the second issue (the unsoundness of mind of the testator) the contestant asserted that the testator was 70 years of age, had suffered a shock, that a conservator had been appointed for his property in August, 1922, and that the nurse, who was in attend

ance and witnessed the will, was of opinion that the testator was of unsound mind at the time the will was signed. On the other hand it appeared from the statements of the proponent's counsel, who related in great detail many remarks of the testator and referred to many facts and incidents, that the testator was in possession of his faculties, that he fully understood the business before him and was thoroughly competent to make a will. It was also stated that the nurse was prejudiced and biased, that shortly after making

the will the testator was removed from her home, and that he complained of the lack of proper care on her part. We see nothing in

the report of the expected evidence showing that the discretion of the probate judge was unwisely used. In our opinion his decision in denying the framing of this issue should not be reversed. Old Colony Trust Co. v. Spaulding (Mass.) 145 N. E. 927; Clark v. McNeil, supra.

the report of the evidence indicating any As to the third issue, we find nothing in

abuse of discretion.

The decision of the probate court refusing the framing of issues must stand. Order affirmed.

WALSH v. FEINSTEIN et al. (two cases.) (Supreme Judicial Court of Massachusetts. Suffolk. Jan. 30, 1925.)

1. Municipal corporations 706 (7)-Whether pedestrian acted with reasonable prudence held for jury.

bile truck slow down and almost stop when she Evidence that pedestrian watched automostarted to cross street held to authorize submission to jury of question whether she acted with reasonable prudence.

2. Master and servant 332 (2)-Whether chauffeur's use of automobile truck to go to dinner was authorized by employer held for jury.

Evidence held to authorize submitting to jury question whether chauffeur's use of automobile truck to go to dinner was authorized and approved by employer.

3. Witnesses -276-Permitting cross-examination of defendant as adverse witness as to statements made by chauffeur held not abuse of discretion.

In action by pedestrian for injuries resulting from collision with defendant's automobile truck, driven by his chauffeur, where defendant was examined by plaintiff as witness, under G. L. c. 233, § 22, there was no abuse of discretion in permitting cross-examination as to what chauffeur said when he reported accident.

[blocks in formation]

5. Evidence 219(1)-Mental reaction of owner when he heard story of automobile accident and reply to his question held relevant.

In action for injuries from collision with automobile driven by defendant's chauffeur, mental reaction of owner, when he heard chauffeur's story and received reply to his 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.

6. Appeal and error 1050(1)-Answer having no probative value held harmless. In action for injuries from automobile collision, where defendant's answer to question as to whether chauffeur had made certain statement when he told him how accident happened had no probative value, its admission was harmless.

coming toward her on the inbound track, at the rate of 8 miles an hour and distant 25 feet. As she watched the truck it slowed

down quite a bit and almost stopped; then she started to cross the rails of the inbound track, and then before she had crossed, the truck lurched forward and struck her with the right mudguard. On the foregoing facts, 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.

Separate actions of tort by Alice Walsh, p. p. a., and by Michael Walsh, against Israel A. Feinstein and others. Defendants' motion for directed verdict was denied, and they except. Exceptions overruled.

W. B. Keenan, of Boston, and S. L. Solomont, of Roxbury, for plaintiffs.

for the purpose of giving her an opportunity to cross in safety, and could find therefrom that she had acted with reasonable prudence.

[2] The evidence on the issue, whether the defendant's chauffeur was acting within the scope of his employment, at the time of the injury, warranted a finding of the facts which follow. The driver of the truck, one 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.

PIERCE, J. These are two actions of tort arising as the result of personal injuries received by the plaintiff Alice Walsh, a minor, when an automobile truck of the defendants came in contact with her, on Broadway, South Boston, on January 19, 1920. Both cases were tried together in the superior court and resulted in verdicts for both plaintiffs. At the close of the evidence, the defendants moved for directed verdicts, and the case is before this court on the refusal of the presiding judge so to order.

The defendants contend that the verdicts should have been directed because (1) "Stafford, the defendants' chauffeur, was not acting within the scope of his employment at the time of the accident"; and (2) "plaintiff

Alice Walsh was not in the exercise of due care." The defendants do not formally or inferentially contend that the chauffeur was not negligent.

[1] The evidence in this aspect most favorable to the plaintiffs, upon the issue of the due care of Alice Walsh, warranted a finding of the facts which follow. Shortly before one o'clock on the afternoon of the day of her injury, Alice Walsh, about 15 years of age, accompanied by her mother was waiting in front of a drug store at the corner of C street and West Broadway, South Boston, for a trolley car outbound for Boston. The car finally arrived and stopped 10 feet on the Boston side of the crosswalk, where the plaintiff and her mother were standing. The daughter left her mother on the corner to await her return while she went back across West Broadway to her house to get some money which her mother had forgotten to bring with her. Walking on the crosswalk she passed the rear end of the trolley car, over the rails of the outbound track, stopped there and looked to

employment of the defendants, as a chauffeur, in charge of trucks. His hours of work were from 8 in the morning until 6 at night and he had no usual dinner hour. His

instructions were to use the automobile when he was going to his dinner. On the day of the accident he was instructed to go to South Boston and get some goods at the Standard Supply Company. When he got to the place

The

the men "were on their lunch hour and the place was closed." He then started to drive to his mother's house, three-fourths of a mile beyond, to get his dinner, and was then going back to the Standard Supply Company to get the goods. The accident happened before he reached his mother's house. jury on the evidence was warranted in making the specific finding that Stafford on that particular day was instructed to use the car to go to his dinner, and in further finding that the use of the car was for the financial gain of the employer and not for the mere convenience or pleasure of the driver. The evidence was ample that the instructions to use the automobile to go to dinner were authorized and approved by the defendants. The case is governed by Reynolds v. Denholm, 213 Mass. 576, 100 N. E. 1006, and McKeever v. Ratcliffe, 218 Mass. 17, 105 N. E. 552, and not by Hartnett v. Gryzmish, 218 Mass. 258, 105 N. E. 988.

[3] The defendant Samuels called to tes

tify by the plaintiff, in response to questions put to him by the plaintiff, in substance testified that he heard from the chauffeur that he was on his way to dinner the day the accident happened. Samuels was ther asked, "What did he say to you?" and replied:

"He told me he had gone to South Boston to get some goods of mine, and when he got to the place it was somewhere around noon hour, and the fellows who were going to give him the goods weren't there, so he thought

(146 N.E.)

he would run over to his house to lunch, be- 2. Municipal corporations 218(2)-Boston, cause he lived in South Boston. I don't re- in discharging laborers, is subject to civil servmember whether he said it was on his way to ice rules. lunch, or on the way back that this accident happened."

Subject to the exception of the defendant, Samuels was then asked, "What did you say to him when he told you that?" and replied

thereto :

"I asked him if the girl had been badly hurt, and he said, 'No; he didn't think so.' I said, 'Well, if she wasn't badly hurt, there is nothing to worry about.' And I might have said that there is nothing to worry about if she isn't badly hurt.'”

[4, 5] G. L. c. 233, § 22, provides:

"A party who calls the adverse party as a witness shall be allowed to cross-examine him."

See Emerson v. Wark, 185 Mass. 427, 70 N. E. 482. Anderson v. Middlebrook, 202 Mass. 506, 89 N. E. 157.

The extent of a cross-examination rests largely in the discretion of the trial judge. Perkins v. Adams, 5 Metc. 44, 48; Hathaway v. Crocker, 7 Metc. 262, 266. Here there is no evidence of an abuse of that discretion. Moreover, the mental reaction of Samuels when he heard the story and received the reply to his question was relevant in proof that the chauffeur was actually in the performance of his duty to the defendants when he drove the automobile against the plaintiff. McKeever v. Ratcliffe, supra.

[6] No legal harm resulted to the defendants through the answer of Stafford, "He may have,” to the question “Did Mr. Samuels say those words to you [reading the answer of Samuels to the plaintiff, above quoted] when you went back and told him how the accident happened?" As proof that Samuels did make the statement testified to by him, the answer of Stafford is manifestly of no probative value.

We find no error in the conduct of the trial or in the refusal to rule as the defendants requested.

Exceptions overruled.

CASSIDY v. TRANSIT DEPARTMENT OF
CITY OF BOSTON.

(Supreme Judicial Court of Massachusetts.
Suffolk. Feb. 2, 1925.)

1. Municipal corporations 218(4)-Veterans entitled to notice and hearing before removal from employment..

Veterans employed in public service of a city are entitled to notice and hearing provided for in G. L. c. 31, § 26, before removal from employment.

Under G. L. c. 31, §§ 3, 47, city of Boston, in employing and discharging laborers, is subject to statutes and rules relating to civil service.

218(4)—Veteran

3. Municipal corporations
employed by transit department held entitled
to notice and hearing before discharge.

In view of St. 1914, c. 636, and St. 1918, c. 24, right of transit commission of city of Boston under St. 1894, c. 548, §§ 23, 24, to remove its employees at pleasure was abrogated as to employees appointed under the civil service and entitled to veteran's preference by Sp. St. 1918, c. 185, providing for transfer of power of commission to city of Boston, and veteran was entitled under G. L. c. 31, § 26, to notice and hearing before discharge.

Report from Supreme Judicial Court, Suffolk County.

Mandamus by Alexander Cassidy against the Transit Department of the City of Boston to require respondent to certify name of petitioner to city council for hearing as to cause for removal from employment. Writ ordered issued by single justice, and case reported to full court. Writ issued.

P. C. Borre, of Boston, for petitioner. J. P. Lyons, Asst. Corp. Counsel, of Boston, for respondent.

SANDERSON, J. Upon the admitted facts in the case, the petitioner is a veteran and so certified on the civil service rolls, and entitled to veteran's preference within the meaning of G. L. c. 31. On or about September 21, 1921, the civil service department of the commonwealth assigned him for permanent service as a subway blacksmith, Boston Transit Department. Under date of April 2, 1924, he was notified in writing by Thomas F. Sullivan, chairman of that department, that his services would be terminated at the close of business April 5, by reason of lack of work. On May 13, 1924, this petition for a writ of mandamus was filed, 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 answer denied that the petitioner was employed by a city department, and contended that the transit department of the city of Boston was created by an act of the Legislature for the purpose of constructing subways in Boston and that it is not governed, in the removal of employees, by G. L. c. 31, § 26. The single justice of this court who heard the case found that the petitioner was employed as a blacksmith by the transit department of the city of Boston, Spec. St. 1918, c. 185; that he was discharged for lack of work, as

For 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. c. 31, §§ 3, 47; McCarthy v. Emerson, 202 Mass. 352, 88 N. E. 668; Ransom v. Boston, 192 Mass. 299, 78 N. E. 481, 7 Ann. Cas. 733; Ayers v. Hatch, 175 Mass. 489, 490, 56 N. E. 612.

The Boston Transit Commission was created by St. 1894, c. 548, § 23, approved July 2, 1894. By section 24 of the act the commission was given authority to choose such engineers, clerks, agents, officers, assistants and other employees as it may deem necessary, to determine the duties and compensation of such employees, and to remove the same at pleasure. The term of office of members of the commission was extended from time to time until July 1, 1918 (Spec. St. 1917, c.. 368). In Mahoney v. Boston, 171 Mass. 427, 429, 50 N. E. 939, the court in discussing the status of employees of the transit commission said:

"The commission constitutes in effect a special board, established by the Legislature for the purpose of laying out and building in the city of Boston at the expense of that municipality public ways along certain lines and between certain termini, and for that purpose it is given large powers and is rendered independent of any control or direction on the part of the city of Boston. The city authorities have nothing to do with the manner in which the work shall be done, or with the persons engaged in its performance; they have no control over the transit commissioners, and no voice in fixing the terms and rates for the use of the subway when completed, or any part thereof."

[3] If it be assumed that the right to remove at pleasure an employee in the labor service of the transit commission continued until the transfer of its powers to the city of Boston, a question which we do not decide, that right did not continue in the city of Boston as to employees appointed under the civil service and entitled to veterans' preference. It is to be noted that the Legislature had already, by St. 1914, c. 636, provided that laborers employed by the Boston Transit Commission should be deemed to be in the service of the city of Boston within the provisions of the Workmen's Compensation Act for public employees and to be entitled to the compensation provided by that act, and it may have been one of the purposes of the Legislature in transferring the powers and duties of the transit commission to the city of Boston to give the employees in the transit department the rights of employees under the civil service as well as all other rights which are incident to such employment. This interpretation of the act finds some support in St. 1918, 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 effect at the date of the passage of this act." Section 1. The powers and duties therein referred to were to be exercised by the may-extending the civil service act to police ofor, commissioner of public works, and city treasurer, or by such person or persons, not exceeding three, as may be appointed by the mayor. The powers conferred and duties imposed by the act are exercised by three men appointed under its authority and known as the transit department of the city of Boston.

The question. to be decided is, whether the right to remove employees at pleasure, given the transit commission in the act creating it, is now in force so that employees in the transit department of the city of Boston may be discharged at pleasure. The employees working in this department are in the service of the city of Boston and are its employees.

[1, 2] Veterans employed in the public service of a city are entitled to the notice

In Logan v. Mayor and Aldermen of Lawrence, 201 Mass. 506, 88 N. E. 9, the question was raised whether St. 1906, c. 210,

ficers of cities and giving them the right not to be removed except for just cause and for reasons specifically given in writing, applied to the city of Lawrence by whose charter (St. 1853, c. 70, as amended by St. 1887, c. 397) the power to appoint and remove police officers was given to the mayor and aldermen. The city of Lawrence had accepted the provisions of the civil service law (R. L. c. 19) in the manner provided in section 36 of that chapter. It was in that case contended that statutes of a general nature do not repeal by implication charters and special acts passed for the benefit of particular municipalities. The court said, referring to St. 1906, c. 210:

"This was enacted as a part of the broad scheme designed to bring about a reform in the civil service not only of the commonwealth it

* * *

(146 N.E.)

tachment held to be of administrator's own personal property, and court had jurisdiction.

self but quite as much of its cities and towns. | 2. Executors and administrators 430-At*** This body of laws [R. L. c. 19 and the acts passed in amendment and extension thereof] was intended to be of general application, except as restricted. To say that any In view of G. L. c. 230, § 6, relative to atcity was to be exempted from the provisions tachment of property of decedent, and chapter of either the whole or any particular part of 212, § 3; chapter 230, § 1, where writ in action this legislation would be to frustrate the mani- commenced by trustee process commanded sherfest intent of the Legislature. Almost all of iff to attach goods or estate of S. as administhe cities of the commonwealth have in their trator of G., attachment thereunder in view charters provisions similar in kind to those of appearance and answer held to be of adwhich appear in the charter of the city of Law-ministrator's own personal property, and surence, with reference both to the police depart-perior court had jurisdiction despite chapter ment and to other branches of the civil serv- 230, § 7. ice. General legislation like that which we are now considering must be deemed to be in amendment of all those charters, so far as it modifies their provisions."

Appeal from Superior Court, Suffolk County; J. Fox, Judge.

Action of contract begun by trustee process by Henderson Jones against Matthew A. N. Shaw, administrator of James H. Gardner, to recover for money had and received, and on an account annexed in which Edgar P. Benjamin, administrator de bonis non, was substituted as defendant. From order denying his motion, under G. L. c. 230, § 7, to dismiss action for lack of jurisdiction, defendant appeals. Affirmed.

J. S. R. Bourne, of Boston, for appellant.

It does not seem probable that the Legislature intended to exempt one of the departments of the city of Boston from the provisions of the civil service statute which was of such general application and enacted to bring about a reform in the civil service. The Boston Transit Commission had been authorized in different years to construct several subways and tunnels and its duties had changed from time to time, and the words "remaining in effect at the date of the passage of this act" in the statute transferring the duties of the commission to the city of Boston, might appropriately refer to these "duties," many of which no longer remained in effect. But if they be construed to relate also to the "powers" of the com-chusetts Mutual Life Insurance Co. v. Green, mission, the act does not confer upon the city or the transit department the right to remove a person in the position of this petitioner except upon compliance with the provisions of G. L. c. 31, § 26.

BRALEY, J. [1] The action is contract begun by trustee process to recover $2,000 on a count for money had and received with a count on an account annexed. See Massa

185 Mass. 306, 70 N. E. 202. The plaintiff having obtained a verdict, the defendant before final judgment moved, under G. L. c. 230, § 7, to dismiss the action for lack of jurisdiction. The statute, in so far as ma

The nature of the work that the transit|terial, reads as follows: commission was required to do does not "Real and personal property of a deceased modify or change the conclusion here reach-person shall not be attached on mesne process ed. Nor does the fact that the reason for notifying the petitioner of the termination of his services was lack of work. He still had the statutory right to notice and hearing.

Upon the facts before us the removal was unlawful, and in accordance with the order of the single justice, writ of mandamus is to issue.

JONES v. BENJAMIN.

in an action upon a debt due from, or upon a claim against, the deceased, except upon the permission of the Probate Court for the county where the executor or administrator of the deceased person was appointed."

[2] The court entered an order denying the motion, and the case is here on appeal, which brings up only errors of law apparent on the record. Given v. Johnson, 213 Mass. 251, 252, 100 N. E. 369.

The writ as amended, which is the foundation of the action, commanded the sheriff"to attach the goods or estate of Matthew A. N. Shaw, as he is administrator of the estate of James H. Gardner of Boston, within our county of Suffolk, to the value of $3,000, and summon the said defendant (if he may be found in your precinct) to appear before our justices 1. Appeal and error 858-Appeal in law of our superior court, to be holden at Boston, proceeding brings up record only.

(Supreme Judicial Court of Massachusetts. Suffolk. Jan. 30, 1925.)

Appeal from order denying motion, under G. L. c. 230, § 7, to dismiss action for lack of jurisdiction, brings up only errors of law apparent on record.

within and for our said county of Suffolk, on the first Monday of August next, then and there in our said court to answer unto Henderson Jones, plaintiff, of said Boston, in an action of contract or tort to the damage of the said

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

« ForrigeFortsett »