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(146 N.E.)

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within the scope of any authority conferred upon him as agent by his father, the defendant. That is the sole ground of liability alleged in the declaration. Smith v. Jordan, 211 Mass. 269, 97 N. E. 761; McGowan v. Longwood, 242 Mass. 337, 136 N. E. 72, 23 A. L. R. 617; Haskell v. Albiani, 245 Mass. 233, 139 N. E. 516; Commonwealth v. Slavski, 245 Mass. 405, 418, 140 N. E. 465.

[2] Evidence offered as to the son being directed by the defendant to do chores for his mother, and as to punishment for failure to obey, was excluded rightly as having no probative value on the issues.

There was no error of law in rulings upon evidence.

Exceptions overruled.

SANGER v. MILBURY.

MILBURY v. SANGER.

(Supreme Judicial Court of Massachusetts. Norfolk. Jan. 21, 1925.)

Exceptions from Superior Court, Suffolk 1. New trial 26-Party cannot, as matter of County; S. E. Qua, Judge.

Action of tort by Mary J. Murphy against John Hurley to recover compensation for personal injuries. Verdict for defendant, and plaintiff excepts. Exceptions overruled.

John Joseph Murphy, of Boston, for plaintiff.

W. D. Gray, of Boston, for defendant.

right, raise question of law on motion which might have been raised before verdict.

No party can, as matter of right, raise question of law on motion to set aside verdict which might have been raised before verdict. 2. Costs 260(4)-Double costs awarded against exceptant, where record presented no question of law.

Where record presents no question of law, double costs, under G. L. c. 211, § 10, may be awarded against exceptant.

Exceptions from Superior Court, Norfolk County; J. D. McLaughlin, Judge.

Separate actions of tort by Sabin P. Sanger against Roy S. Milbury and by Roy S. Milbury against Sabin P. Sanger, arising out of collision between automobiles. Verdicts for Sanger, and Milbury excepts. Exceptions overruled.

G. Hoague, of Boston, for Sanger.
F. M. Carroll, of Boston, for Milbury.

PER CURIAM. [1] This is an action of tort to recover compensation for personal injuries sustained by the plaintiff. There appears to be no controversy that the plaintiff tripped on a pan of water on the cellar stairs, used as a common passageway, of a threefamily house owned and occupied in part by the defendant, in which the plaintiff was a tenant. There was evidence tending to show that a dog was owned, kept, and cared for at the time, in the cellar of the house, by a minor son of the defendant. The son testified that on the day in question, without direction from any one, but on his own initiative, he PER CURIAM. These are two actions of took water in the pan and placed it on the tort tried together and arising out of a colstair behind the door for the dog which he lision between two automobiles, one owned owned. The defendant testified that he was by each of the parties. The case was tried not interested in the dog, had nothing to do fully in the Superior Court. No exceptions with it, gave no directions as to its care or were taken. The verdicts were in favor of feeding, and that the dog was given to the Sanger. Thereafter Milbury filed a motion son by an uncle. The wife of the defendant for a new trial in each case, alleging that testified that she did the housekeeping for the verdict was against the law, against the the defendant, bought supplies for the home, evidence, and against the weight of the eviand directed the son temporarily to keep and dence. About two weeks later an amendcare for his dog in the cellar, where the son ment to these motions, specifying that the gave it food and drink, using scraps from presiding judge had charged upon the facts, the table and whatever receptacle happened was allowed against Sanger's objection and to be handy. All the evidence fails to war- exception "if the court had power to do so." rant a finding that the plaintiff was injured The motions as amended were overruled. through the negligence of the son acting To the refusal to grant a new trial for the

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

reasons set forth in the amendment Milbury the plaintiff was, on the aspect of the eviexcepted.

[1, 2] No question of law is presented on this record. No party can as matter of right raise a question of law on the motion to set aside a verdict which might have been raised before verdict. The granting of the motion for a new trial rested in the sound discretion of the trial judge. Lonergan v. American Railway Express Co., 250 Mass. 30, 144 N. E. 756. No intimation is to be inferred from this ground of decision that there was any error in the charge as given, if such question were open. Double costs are awarded to Sanger. G. L. c. 211, § 10. Exceptions overruled.

NEWMAN v. HILL.

dence most favorable to her, as matter of law, guilty of contributory negligence and hence cannot recover. There was evidence tending to show that the plaintiff at about seven o'clock in the evening of a November day started to cross Boylston street, in Brookline, in which are two sets of car tracks, at a point fifty to seventy-five feet east of Cypress street. Before stepping off the sidewalk she looked up and down the street and saw an automobile on Boylston street in the direction of Cypress street coming toward her which looked to be farther way from her than the tracks in Cypress street. When the plaintiff reached the first set of car rails, she looked to her right and saw an automobile in the vicinity of Cypress street at such a distance from her that "she had time to pass." She did not know whether the automobile was standing or moving, but she saw its headlights lighted. The au

(Supreme Judicial Court of Massachusetts.tomobile was on its right-hand side of Boyls

Norfolk. Jan. 21, 1925.)

1. Municipal corporations 706 (7)-Contributory negligence of pedestrian held for jury.

Evidence held not to require ruling, as matter of law, that pedestrian, struck by automobile in street, was wanting in due care. 2. Courts 190 (8, 9)-Action of appellate division of municipal court in reversing, on facts judgment for plaintiff, and ordering judgment for defendant, unwarranted.

ton street and was about fifty-five or sixty feet away. It was raining and the plaintiff had an umbrella over her head, held high so that it did not obstruct her view. She last saw the automobile when she was on the outbound rails on Boylston street, that is, on the first car track she had to pass on crossing the street and she did not see, hear or know anything more about it until she was struck. She was about three or four feet from the southerly sidewalk of Boylston street toward which she was headed, when she was struck. There were no other auto

Where finding of municipal court for plaintiff on record was not tainted by error of law, action of appellate division in ordering judg-mobiles or traffic in the street. There was no ment for defendant was not warranted, and on evidence that the horn of the automobile report judgment will be entered for plaintiff. was sounded.

Appeal from Municipal Court of Brookline; D. A. Rollins, Special Judge.

It could not have been ruled as matter of law, in view of this testimony, that the plaintiff was wanting in due care or was guilty Action of tort by Margaret Newman of contributory negligence. The case is govagainst Edward H. Hill to recover compen-erned by numerous decisions. Gauthier v. sation for personal injuries from automobile collision. Judgment of municipal court for plaintiff was reversed by the appellate division, and plaintiff appeals. Judgment of appellate division reversed, and judgment for plaintiff entered.

Quick, 250 Mass., 145 N. E. 436; Kaminski v. Fournier, 235 Mass. 51, 126 N. E. 279; Lunderkin v. Boston Elevated Railway, 211 Mass. 144, 97 N. E. 743; Reynolds v. Murphy, 241 Mass. 225, 135 N. E. 116; Dube v. Keogh Storage Co., 236 Mass. 488, 128 N. E. 782;

T. W. Proctor and M. T. Prendergast, both Gerhart v. Holyoke Street Railway, 236 of Boston, for appellant.

Mass. 392, 128 N. E. 421; Scannell v. Boston F. L. Reynolds, of Medford Hillside, for ap- Elevated Railway, 176 Mass. 170, 57 N. E. pellee.

PER CURIAM. [1] This is an action of tort by the plaintiff, a pedestrian on a public way, to recover compensation for personal injuries caused by being struck by an automobile. It is not argued that the operator of the automobile could not have been found to be the servant of the defendant, acting within the scope of his employment. The only point argued by the defendant is that

341.

[2] The judge of the Municipal Court found for the plaintiff. That finding on this record was not tainted by any error of law. The action of the Appellate Division in ordering judgment for the defendant was not warranted. Judgment is to be entered in favor of the plaintiff on the finding of the single judge of the Municipal Court. Loanes v. Gast, 216 Mass. 197, 103 N. E. 473. So ordered,

(146 N.E.)

AURNHAMMER v. BROTHERHOOD

ACC. CO.

(Supreme Judicial Court of Massachusetts. Hampden. Jan. 20, 1925.)

1. Insurance 668(11) - Question whether there was "wrecking" of car within policy term held one for court.

Where there was no evidence that word "wrecking" had special or local significance, question whether there was wrecking of car within meaning of accident insurance policy was for court.

2. Insurance 668(11) - Question of rights under undisputed contract and facts raises no jury question.

In action on accident insurance policy, where parties were in agreement concerning what actually occurred, construction of contract and rights thereunder presented no disputed fact for jury.

Action of contract by Charles F. Aurnhammer against the Brotherhood Accident Company to recover on accident insurance policy. Directed verdict for plaintiff, and defendant excepts. Exceptions overruled.

Green & Bennett, of Springfield, for plain

tiff.

W. H. Brooks, J. P. Kirby, D. H. Keedy, and C. Brooks, all of Springfield, for defend

ant.

CARROLL, J. This is an action of contract upon an accident insurance policy. It provided (clause 1) that the insured would be paid $9 a week indemnity, if he suffered any bodily injury of the kind set out in the of $60 per week, if the bodily injury should policy, and by clause K, a special indemnity

* *

"be received while said insured is riding as a passenger in any railway passenger car, operated by electricity, and such injury [should] be due directly to or "wrecking" of electric car within policy term. in consequence of the wrecking of said car."

3. Insurance 452-Evidence held to show

The parties agreed that the plaintiff was a passenger upon an open, 15-bench passenger car, operated by electricity, when it collided with another car; that:

Evidence that dashboard and controller at front of car in which insured was riding were bent, displaced, and forced backward, air pipes severed, brake standard and handles disabled, partition damaged, glass broken, bonnet smashed and crushed, held to show "wrecking" of car within accident insurance policy; "to wreck" meaning to destroy, disable, or seriously damage. [Ed. Note. For other definitions, see Words him for the period of seven weeks and three and Phrases, Wrecking.] days from the date of the accident."

4. Contracts 143-Contract construed as whole to ascertain intent.

"The impact of said collision caused the plaintiff, who was sitting about in the middle of the car, to be thrown first forward and then backward"; and that he "sustained injuwhich * * totally disabled

ries

It was also agreed that the dashboard and controller, at the end where the collision oc

To ascertain intent of parties, contract is curred, were bent, "displaced and forced to be construed as a whole.

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backward against the seat in front of the front platform partition"; that the air pipes were severed at this end of the car; that the brake standard and handle by which the brakes were operated were forced backwards and disabled; that the partition between the front platform and the rest of the car was damaged and the glass broken; that the bonnet (which is the part of the roof built over the front platform) was crushed, the front part of the running board was damaged, four, five or six uprights on one side of the car were broken, and the brass castings which fastened the seats to the standards were bent; that the collision did not derail

the car, and it was brought back to the barn at Springfield under its own power; that for

7. Insurance 543-Proof of loss from accl- this purpose the controller and the hand dent held sufficient.

Statement, in proof of loss in answer to questions as to what insured was doing when injured, and how accident happened, that he was traveling in an electric car, and that accident happened from collision, held sufficient proof of loss; proofs submitted on blanks furnished by insurer being filled out responsively, and no other information being requested.

Exceptions from Superior Court, Hampden County; Alonzo R. Weed, Judge.

brake at the other end of the car were used; that the air brakes could not be operated on the return trip; that the value of the car was about $9,000, and cost of repairs, including labor, amounted to about $260.

The plaintiff gave the defendant written notice of injury and seasonably sent the company proof of loss on the form furnished by the defendant. In this notice and in the proof of loss the plaintiff stated that his injury was due to a collision.

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

The defendant requested the court to rule that there was not sufficient evidence that the plaintiff's injury was due to the wrecking of the car; that there was not sufficient evidence that the collision and the injuries to the car constituted a wrecking of the car, and the plaintiff was not entitled to recover under clause K; that the plaintiff was not entitled to recover an indemnity exceeding that set out in clause 1, and "there is no evidence sufficient to warrant the jury in finding that due and sufficient proof of loss was furnished the defendant to permit recovery under clause K of this policy." The court ruled that there was no disputed fact for the consideration of the jury; that the plaintiff's injury was due directly to or in consequence of the wrecking of the car in which he was riding within the meaning of clause K, and directed the jury to return a verdict for the plaintiff in the sum of $544.22, it being agreed that this amount is correct if the plaintiff was entitled to recover under clause K. The defendant excepted to the refusal to grant its request for rulings, to the rulings given, and to the direction of a verdict for the plaintiff.

[1, 2] The question whether there was a "wrecking of the car" within the meaning of clause K of the policy was for the court to decide; as there was no evidence that the word "wrecking" had a special or local significance, there was nothing for the jury to decide, and no error in the court deciding the question. Campbell v. Whoriskey, 170 Mass. 63, 64, 48 N. E. 1070. The parties being in agreement concerning what actually occurred, the construction of the contract and their rights thereunder presented no disputed question of fact for the jury to pass on. See Eaton v. Smith, 20 Pick. 150, 156; Waldstein v. Dooskin, 220 Mass. 232, 107 N. E. 927. The defendant relies on McDonough v. Metropolitan Life Ins. Co., 228 Mass. 450, 117 N. E. 836; New York Central & Hudson River Railway v. York & Whitney Co., 230 Mass. 206, 119 N. E. 855, and St. John Brothers Co. v. Falkson, 237 Mass. 399, 130 N. E. 51. They are not in conflict with this principle; in these cases more than one rational inference of fact from the evidence was possible. [3] The meaning of the word "wreck" has been passed on in many cases arising under maritime law. In such cases the word has a technical significance and is descriptive of a vessel that is a total loss, and may be abandoned by the owner. Commonwealth Ins. Co. v. Chase, 20 Pick. 142, 145; Taber v. China Mutual Ins. Co., 131 Mass. 239. A ship becomes a wreck, in the words of Chief Justice Parsons (Wood v. Lincoln & Kennebeck Ins. Co., 6 Mass. 479, 482 [4 Am. Dec. 163])

"when, in consequence of the injury she has received, she is rendered absolutely innavigable, or unable to pursue her voyage, without

See Proctor v. Adams, 113 Mass. 376, 18 Am. Rep. 500, where it was said that a boat cast ashore by the sea, "was a wreck, in the strictest legal sense." See, also, Chase v. Corcoran, 106 Mass. 286, 288. This particular meaning of the term "wrecking," is not given to it, so far as we are aware, except in maritime decisions, or in decisions arising under marine insurance, and kindred cases. [4, 5] In the present case, injuries are included which were received while riding in a passenger car, or in a passenger elevator, or while a passenger on a "steam vessel." and the word should be given its usual and customary interpretation. Eaton v. Smith, 20 Pick. 150, 156; Rice v. Dwight Manuf. Co., 2 Cush. 80, 86; Aldrich v. Bay State Construction Co., 186 Mass. 489, 493, 72 N. E. 53. In ordinary speech an article is said to have been wrecked when it is disabled or seriously damaged, although it may not be totally destroyed or rendered incapable of use. A common use of the verb "to wreck" is to destroy, disable, or seriously damage. The evidence agreed to shows that the car was disabled, and in part, at least, was seriously damaged. To ascertain the intent of the parties, the contract is to be construed as a whole. Atwood v. Cobb, 16 Pick. 227, 229, 26 Am. Dec. 657. While contracts must stand as they are made and, in the absence of fraud or other legal reason justifying their repudiation, the parties must be held bound by them, it is the general rule in the construction of an insurance contract that any doubt arising upon its face as to its meaning is to be resolved in favor of the insured. Ferguson v. Union Mutual Life Ins. Co., 187 Mass. 8, 14, 72 N. E. 358; Lewis v. Brotherhood Accident Co., 194 Mass. 1, 6, 79 N. E. 802, 17 L. R. A. (N. S.) 714; Hatch v United States Casualty Co., 197 Mass. 101, 105, 83 N. E. 398, 14 L. R. A. (N. S.) 503, 125 Am. St. Rep. 332, 14 Ann. Cas. 290.

The car in which the plaintiff was riding was seriously damaged. The dashboard and controller at the front of the car were bent, displaced and forced backward, and the air pipes at this end were severed, the brake standard and handles were disabled, the partition between the platform and the rest of the car was damaged, the glass broken, a part of the roof called the bonnet was smashed and crushed, some of the uprights of the running board were injured, and the brass castings bent. In our opinion the evidence shows that the front part of the car at least was wrecked, that there was a wrecking of the car; and that the plaintiff's injuries resulted "directly to or in consequence of the wrecking of said car," within the terms of the policy.

[6] If there was a wrecking of the car, it would be giving the words of the contract too narrow a meaning to say that the plaintiff's injuries were not due, or did not result in

(146 N.E.)

attributed, as the defendant contends, solely to the collision. The wrecking of the car was caused by the collision. The collision and the wrecking were almost simultaneous, the one following the other. In reality, they constituted one transaction. Construing the policy fairly, and carrying out the intent of the plaintiff and the defendant, the injuries

to the insured resulted from "or in consequence of" the wrecking of the car.

[7] The defendant further contends that due and sufficient proof of loss to permit recovery under clause K was not furnished. The question, "What were you doing when injured?" was answered by the plaintiff, "Traveling from Springfield to Holyoke in an electric car." He was then asked: "How did the accident happen?" and he replied, "Collision." The notice of injury was seasonably given, the proofs submitted on the blanks furnished by the defendant were filled out in a responsive manner and within the specified time sent to the defendant. It was not necessary, in the proof of loss, that the plaintiff should go into further details, unless additional information was requested. See Traiser v. Commercial Travelers' Eastern Accident Association, 202 Mass. 292, 395, 88 N. E. 901, 24 L. R. A. (N. S.) 1199, 132 Am. St. Rep. 511; Silberstein v. Vellerman, 241 Mass. 80, 85, 134 N. E. 395.

Exceptions from Superior Court, Essex County; Joseph Walsh, Judge.

Action of contract by Mary Carpenter against the A. O. H. Widows' and Orphans' Fund to recover on certificate of insurance issued by defendant. Verdict ordered for plaintiff for amount of certificate, and defendant excepts. Exceptions overruled. J. P. Kane, of Lawrence, for plaintiff. J. J. Shaughnessy, of Marlboro, for defendant.

WAIT, J. This action was brought on a certificate of insurance issued by the defendant on September 30, 1895, to John J. Carpenter, then a member since 1883 of Division 8, Ancient Order of Hibernians of Lawrence. At the trial in the superior court the defendant sought to introduce evidence to show that Carpenter at the date of his application, July 3, 1895, was over 45 years of age; that in his application for membership and in his answers at his medical examination he had made misrepresentations in regard to his age, which affected the risk of the insurance; that the by-laws of the defendant limited the age of those who could be admitted to insurance to 45 years. This evidence was excluded subject to the defendant's exception. The certificate stated that

We discover no error in the conduct of the the defendant was incorporated December

trial.

Exceptions overruled.

4, 1890. The defendant claimed, and, apparently, the rulings objected to were made on the assumption, that it was incorporated under St. 1888, c. 429, and amendments thereof as a fraternal beneficiary insurance asso

CARPENTER v. A. O. H. WIDOWS' AND ciation; that only members of the Ancient

ORPHANS' FUND.

(Supreme Judicial Court of Massachusetts. Essex. Jan. 24, 1925.)

Order of Hibernians could join; and that on September 30, 1895, and at the time of the trial it was acting under the act of 1888 and amendments thereof now embodied in G. L. c.

1. Insurance 687-Certificate held to be 176. one of assessment insurance.

The judge ruled that the case was governor-ed by the provisions of law now embodied in G. L. c. 177; that the defense of the age limit was not open; and ordered a verdict for the plaintiff for $1,000, the amount of the certificate. The defendant excepted. It does not appear that any contention was made that the amount was improper, if the plaintiff was entitled otherwise to recover.

Beneficial life insurance association, ganized under St. 1888, c. 429, not being precluded by section 9 thereof, as amended by St. 1890, c. 341, § 1, St. 1890, c. 421, § 1, St. 1892, c. 435, 1, and St. 1894, c. 367, § 16, from entering assessment contracts in 1895, certificate of insurance of that year containing no agreement to observe and comply with any other than conditions, requirements, and stipulations specified therein, and in which insured promised to pay when assessment was required, held to be one for assessment rather than fraternal beneficiary insurance.

2. Insurance 655 (2)-By-laws held inadmissible to show insured's misrepresentation as to age in application.

Where there was no reference to by-laws in certificate of assessment insurance, under St. 1890, c. 421, § 21, and St. 1895, c. 281, they were inadmissible to show insured's alleged misrepresentation as to age in application, which was referred to but not set out in or attached to certificate.

The decision of the questions argued upon the bill of exceptions depends upon the language of the certificate. If the transaction was one of assessment insurance subject generally to the provisions of St. 1890, c. 421, and amendments thereto, now G. L. c. 177, the rulings were correct, If, however, the transaction was one of fraternal beneficiary insurance subject generally to the provisions of St. 1894, c. 367, with its amendments, now G. L. c. 176, the rulings were wrong.

[1] W assume that the defendant was organized under St. 1888, c. 429, as amend

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 146 N.E.-4

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