these doctors treated said Bassett for his surance would be deemed material, or defeat heart trouble.” Dr. Hopkins, called by the the policy, unless the misrepresentation or defendant, testified that he attended Bassett warranty was made with intent to deceive, professionally February 9, 1920, at his (Bas- or unless the matter misrepresented or made sett’s) home; he was then suffering from a a warranty, increased the risk of loss, is not cold; that he saw him again February 12, applicable to the facts in this case: that when he had acute bronchitis; that on Feb- statute does not apply to an application for ruary 20 he came to the doctor's office, when reinstatement, it has reference only to the an examination was made and it was found representations made when the policy is is. that the insured “showed marked mitral re-sued. gurgitation with a systolic murmur”; “that [3] In an application for reinstatement the mitral valve was leaking.” He told Dr. such as the one before us the parties are Hopkins that he had seen a doctor in Wake- bound by the terms of the contract. They field and in Roxbury; that he had been ex. agreed that all the answers were material to amined at the Homeopathic Hospital in Bos- the risk, and were true. If the insured conton and a blood count was taken; "that Dr. sulted a physician, or was treated by one, or Caldwell advised him to have a complete had been prescribed for by a physician since physical examination as soon as he came the date of the policy and before the date home.” At the close of the evidence the de- of the application, or if the deceased had an fendant moved that the court direct a ver- illness, disease or injury of any kind during dict for the defendant, which motion was de- that time, his answers were not true. By nied and defendant excepted.

the plaintiff's own evidence, by which she [1] There was no question that the policy was bound, it appeared that the insured bad lapsed. It was necessary, therefore, for had consulted a physician for medical treatthe plaintiff to prove the truth of the facts ment in February, 1920, and he then had an stated in the "Application for Reinstating “illness” of some kind. If he had a cold Policy Without Medical Examination." The at this time and a physician was consulted, insured agreed as a condition precedent to or if he was treated by the physician, that his reinstatement that every one of his an- fact was material. In addition to this, the swers was true, that these answers were ma- testimony of Dr. Hopkins was not contradict. terial to the risk. The burden of proof was ed in its essential particulars: be testified upon the plaintiff to establish that the in- that the insured was attended by him and sured had no “illnesses, diseases [or] inju- found to be suffering from heart trouble in ries” since the date of the policy, and had not February, 1920, before the application for been treated or prescribed for, or had not reinstatement was signed. Holden v. Metroconsulted a physician since the date of the politan Life Ins. Co., 188 Mass. 212, 74 N. E. policy. The plaintiff's own testimony showed 337. that Bassett had gone to Dr. Hopkins' office The statements made by the insured in the on account of an injury to his arm, although request for reinstatement were not true. The she stated this was after the date of the pol- burden resting on the plaintiff was not susicy, probably meaning by this statement the tained. Having failed to comply with the date of its renewal; but she testified that conditions precedent mentioned in the appliDr. Hopkins was at her home in February, cation, the policy was not revived and the 1920; that her husband was suffering from plaintiff could not recover. . Rainger v. Bosa cold, and that Dr. Hopkins treated him, ton Mutual Life Association, 167 Mass. 109, and the proofs of death, which she introduced | 44 N. E. 1088; Fondi v. Boston Mutual Life as a part of her case, showed that the in- | Ins. Co., 224 Mass. 6, 7, 112 N. E. 612; Reidy sured died of heart failure, and had been v. John Hancock Mutual Life Ins. Co., 245 prescribed for by Dr. Hopkins and two other | Mass. 373, 139 N. E. 538. physicians during the two years preceding [4] The motion for a directed verdict his death.

should have been allowed; and under G. L [2] G. L. c. 175, § 186, providing in sub-c. 231, § 122, judgment is to be entered for stance that no misrepresentation or warran- | the defendant. ty made in the negotiation of a policy of in So ordered.

(146 N.E.)

within the scope of any authority conferred MURPHY v. HURLEY.

upon him as agent by his father, the defend

ant. That is the sole ground of liability al(Supreme Judicial Court of Massachusetts. Suffolk. Jan, 21, 1925.)

leged in the declaration. Smith v. Jordan,

211 Mass. 269, 97 N. E. 761; McGowan v. 1. Master and servant Om330(3)-Son caring Longwood, 242 Mass. 337, 136 N. E. 72, 23 for his dog held not acting as father's agent. A. L. R. 617; Haskell v. Albiani, 245 Mass.

In action for personal injury from tripping 233, 139 N. E. 516; Commonwealth v. Slavski, on pan placed on cellar stairs, evidence held 245 Mass. 405, 418, 140 N. E. 465. not to warrant finding for plaintiff on theory [2] Evidence offered as to the son being that son, in placing pan of water for dog which directed by the defendant to do chores for he owned, acted within scope of authority con his mother, and as to punishment for failure ferred on him as agent by his father, the de- to obey, was excluded rightly as having no fendant.

probative value on the issues. 2. Master and servant 330(2)-Evidence There was no error of law in rulings upon

held of no probative value on issue as to evidence. son's agency for father.

Exceptions overruled. In action against father for injuries in tripping over pan of water set on stairs by son for his dog, where sole ground of liability alleged was that act of son was within scope of

SANGER V. MILBURY. authority as agent for father, evidence as father's directing son to do chores for mother,

MILBURY V. SANGER. and as to punishment for failure to obey, was as of no probative value.

(Supreme Judicial Court of Massachusetts.

Norfolk. Jan. 21, 1925.) Exceptions from Superior Court, Suffolk 1. New trial am 26_Party cannot, as matter of County; S. E. Qua, Judge.

right, raise question of law on motion which

might have been raised before verdict. Action of tort by Mary J. Murphy against John Hurley to recover compensation for per

No party can, as matter of right, raise sonal injuries. Verdict for defendant, and question of law on motion to set aside verdict

which might have been raised before verdict. plaintiff excepts. Exceptions overruled.

costs awarded John Joseph Murphy, of Boston, for plain. / 2. Costs. Em 260(4)—Double

against exceptant, where record presented tiff.

no question of law. W. D. Gray, of Boston, for defendant.

Where record presents no question of law,

double costs, under G. L. c. 211, § 10, may be PER CURIAM. [1] This is an action of awarded against exceptant. tort to recover compensation for personal injuries sustained by the plaintiff. There ap

Exceptions from Superior Court, Norfolk pears to be no controversy that the plaintiff County; J. D. McLaughlin, Judge. tripped on a pan of water on the cellar stairs, Separate actions of tort by Sabin P. Sanger used as a common passageway, of a three- against Roy S. Milbury and by Roy S. Milfamily house owned and occupied in part by bury against Sabin P. Sanger, arising out of the defendant, in which the plaintiff was a collision between automobiles. Verdicts for tenant. There was evidence tending to show Sanger, and Milbury excepts. Exceptions that a dog was owned, kept, and cared for at overruled. the time, in the cellar of the house, by a mi

G. Hoague, of Boston, for Sanger. nor son of the defendant. The son testified

F. M. Carroll, of Boston, for Milbury. 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 lísion 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 notions 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 evi. excepted.

dence most favorable to her, as matter of [1, 2] No question of law is presented on law, guilty of contributory negligence and this record. No party can as matter of right hence cannot recover. There was evidence raise a question of law on the motion to set tending to show that the plaintiff at about aside a verdict which might have been raised seven o'clock in the evening of a November before verdict. The granting of the motion day started to cross Boylston street, in for a new trial rested in the sound discre- Brookline, in which are two sets of car tion of the trial judge. Lonergan v. Ameri- tracks, at a point fifty to seventy-five feet can Railway Express Co., 250 Mass. 30, 144 east of Cypress street. Before stepping off N. E. 756. No intimation is to be inferred the sidewalk she looked up and down the from this ground of decision that there was street and saw an automobile on Boylston any error in the charge as given, if such ques- street in the direction of Cypress street comtion were open. Double costs are awarded ing toward her which looked to be farther to Sanger. G. L. c. 211, $ 10.

way from her than the tracks in Cypress Exceptions overruled.

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 whethNEWMAN v. HILL.

er 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 BoylsNorfolk. Jan. 21, 1925.)

ton street and was about fifty-five or sixty 1. Municipal corporations Ow706 (7)-Con- feet away. It was raining and the plaintiff tributory negligence of pedestrian held for had an umbrella over her head, held high jury.

so that it did not obstruct her view. She last Evidence held not to require ruling, as mat- saw the automobile when she was on the outter of law, that pedestrian, struck by automo- bound rails on Boylston street, that is, on bile in street, was wanting in due care.

the first car track she had to pass on cross2. Courts m 190(8,9)-Action of appellato ing the street and she did not see, hear or

division of municipal court in reversing, on know anything more about it until she was facts judgment for plaintiff, and ordering struck. She was about three or four feet judgment for defendant, unwarranted. from the southerly sidewalk of Boylston

Where finding of municipal court for plain- street toward which she was headed, when tiff on record was not tainted by error of law, she was struck. There were no other autoaction 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 Brook

It could not have been ruled as matter of line; D. A, Rollins, Special Judge.

law, in view of this testimony, that the plain

tiff was wanting in due care or was guilty Action of tort by Margaret Newman of contributory negligence. The case is gove against Edward H. Hill to recover compen-erned by numerous decisions. Gauthier v. sation for personal injuries from automobile Quick, 250 Mass. — 145 N. E. 436; Kamincollision. Judgment of municipal court for ski v. Fournier, 235 Mass. 51, 126 N. E. 279; plaintiff was reversed by the appellate di- Lunderkin v. Boston Elevated Railway, 211 vision, and plaintiff appeals. Judgment of Mass. 144, 97 N. E. 743; Reynolds v. Murphy, appellate division reversed, and judgment for 241 Mass. 225, 135 N. E. 116; Dube v. Keogh plaintiff entered.

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.


[2] The judge of the Municipal Court PER CURIAM. (1) This is an action of found for the plaintiff. That finding on this tort by the plaintiff, a pedestrian on a public record was not tainted by any error of law. way, to recover compensation for personal The action of the Appellate Division in orinjuries caused by being struck by an auto- dering judgment for the defendant was not mobile. It is not argued that the operator warranted. Judgment is to be entered in of the automobile could not have been found | favor of the plaintiff on the finding of the to be the servant of the defendant, acting single judge of the Municipal Court. Loanes within the scope of his employment. The v. Gast, 216 Mass. 197, 103 N. E. 473. only point argued by the defendant is that So ordered.

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


[ocr errors]

(146 N.E.)

Action of contract by Charles F. AurnhamAURNHAMMER v. BROTHERHOOD mer against the Brotherhood Accident ComACC. CO.

pany to recover on accident insurance pol(Supreme Judicial Court of Massachusetts.

icy. Directed verdict for plaintiff, and deHampden. Jan. 20, 1925.)

fendant excepts. Exceptions overruled.

Green & Bennett, of Springfield, for plain1. Insurance 668(11) - Question whether

tiff. there was "wrecking' of car within policy term held one for court.

W. H. Brooks, J. P. Kirby, D. H. Keedy, Where there was no evidence that word) and C. Brooks, all of Springfield, for defend"wrecking" had special or local significance,

ant. question whether there was wrecking of car within meaning of accident insurance policy was

CARROLL, J. This is an action of confor court.

tract upon an accident insurance policy. It 2. Insurance Cw668(11) - Question of rights be paid $9 a week indemnity, if he suffered

provided (clause 1) .that the insured would under undisputed contract and facts raises no jury question.

any bodily injury of the kind set out in the In action on accident insurance policy,

policy, and by clause K, a special indemnity where parties were in agreement concerning of $60 per week, if the bodily injury should what actually occurred, construction of con- | "be received while said insured is riding as tract and rights thereunder presented no dis- a passenger in any railway passenger car, puted fact for jury.

operated by


and such injury [should] be due directly to or 3. Insurance 452-Evidence held to show "wrecking” of electric car within policy term. in consequence of the wrecking of said car.” Evidence that dashboard and controller at

The parties agreed that the plaintiff was front of car in which insured was riding were a passenger upon an open, 15-bench passenbent, displaced, and forced backward, air pipes ger car, operated by electricity, when it colsevered, brake standard and handles disabled, lided with another car; that: partition damaged, glass broken, bonnet smash

“The impact of said collision caused the ed and crushed, held to show “wrecking" of plaintiff, who was sitting about in the middle car within accident insurance policy; "to of the car, to be thrown first forward and wreck” meaning to destroy, disable, or seriously then backward”; and that he "sustained injudamage.


totally disabled (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

It was also agreed that the dashboard and whole to ascertain Intent,

controller, at the end where the collision ocTo ascertain intent of parties, contract is curred, were bent, "displaced and forced to be construed as a whole.

backward against the seat in front of the 5. Insurance Co 146(3) - Generally doubtful front platform partition"; that the air pipes provision resolved in assured's favor.

were severed at this end of the car; that the Generally, in construction of insurance con- brake standard and handle by which the tracts, doubt arising on face thereof as to brakes were operated were forced backwards meaning is resolved in favor of insured.

and disabled; that the partition between the 6. Insurance cm452—Injuries of insured held front platform and the rest of the car was result of wrecking of car rather than colli- damaged and the glass broken; that the bonsion.

net (which is the part of the roof built over Where wrecking of car, in which insured the front platform) was crushed, the front was riding at time of receiving injury for part of the running board was damaged, which claim was made, was caused by col-four, five or six uprights on one side of the lision with another car, the wrecking and col- car were broken, and the brass castings lision being in reality one transaction, held that which fastened the seats to the standards the injury must be deemed to have resulted

were bent; that the collision did not derail from, or in consequence of, the wrecking with the car, and it was brought back to the barn in policy, rather than from collision.

at Springfield under its own power; that for 7. Insurance em 543-Proof of loss from acci. this purpose the controller and the hand dent held sufficient.

brake at the other end of the car were used; Statement, in proof of loss in answer to that the air brakes could not be operated on questions as to what insured was doing when the return trip; that the value of the car injured, and how accident happened, that he was about $9,000, and cost of repairs, includwas traveling in an electric car, and that ac. ) ing labor, amounted to about $260. cident happened from collision, held sufficient proof of loss; proofs submitted on blanks fur- notice of injury and seasonably sent the com

The plaintiff gave the defendant written nished by insurer being filled out responsively, and no other information being requested.

pany proof of loss on the form furnished by

the defendant. In this notice and in the Exceptions from Superior Court, Hamp- proof of loss the plaintiff stated that his inden County; Alonzo R. Weed, Judge.

jury 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 See Proctor V. Adams, 113 Mass. 376, 18 that there was not sufficient evidence that Am. Rep. 500, where it was said that a boat the plaintiff's injury was due to the wrecking cast ashore by the sea, "was a wreck, in the of the car; that there was not sufficient evi. strictest legal sense.' See, also, Chase v. dence that the collision and the injuries to Corcoran, 106 Mass. 286, 288. This particuthe car constituted a wrecking of the car, lar meaning of the term "wrecking,” is not and the plaintiff was not entitled to recover given to it, so far as we are aware, except in under clause K; that the plaintiff was not maritime decisions, or in decisions arising entitled to recover an indemnity exceeding under marine insurance, and kindred cases. that set out in clause 1, and "there is no evi [4, 5] In the present case, injuries are indence sufficient to warrant the jury in find- cluded which were received while riding in ing that due and sufficient proof of loss was a passenger car, or in a passenger elevator, furnished the defendant to permit recovery or while a passenger on a "steam vessel." under clause K of this policy.” The court and the word should be given its usual and ruled that there was no disputed fact for the customary interpretation. Eaton v. Smith, consideration of the jury; that the plaintiff's 20 Pick. 150, 156; Rice v. Dwight Manuf. injury was due directly to or in consequence Co., 2 Cush. 80, 86; Aldrich v. Bay State Conof the wrecking of the car in which he was struction Co., 186 Mass. 489, 493, 72 N. E. 53. riding within the meaning of clause K, and in ordinary speech an article is said to have directed the jury to return a verdict for the been wrecked when it is disabled or seriousplaintiff in the sum of $544.22, it being ly damaged, although it may not be totally agreed that this amount is correct if the destroyed or rendered incapable of use. A plaintiff was entitled to recover under clause common use of the verb “to wreck” is to deK. The defendant excepted to the refusal stroy, disable, or seriously damage. The evito grant its request for rulings, to the rulings dence agreed to shows that the car was disgiven, and to the direction of a verdict for abled, and in part, at least, was seriously the plaintiff.

damaged. To ascertain the intent of the par[1, 2] The question whether there was a ties, the contract is to be construed as a "wrecking of the car" within the meaning of whole. Atwood v. Cobb, 16 Pick. 227, 229, 26 clause K of the policy was for the court to Am. Dec. 657. While contracts must stand decide; as there was no evidence that the as they are made and, in the absence of word "wrecking" had a special or local sig. fraud or other legal reason justifying their nificance, there was nothing for the jury to repudiation, the parties must be held bound decide, and no error in the court deciding the by them, it is the general rule in the conquestion. Campbell v. Whoriskey, 170 Mass. struction of an insurance contract that any 63, 64, 48 N. E. 1070. The parties being in doubt arising upon its face as to its meanagreement concerning what actually occur ing is to be resolved in favor of the insured. red, the construction of the contract and Ferguson v. Union Mutual Life Ins. Co., 187 their rights thereunder presented no disput- Mass. 8, 14, 72 N. E. 358; Lewis v. Brothered question of fact for the jury to pass on. i hood Accident Co., 194 Mass. 1, 6, 79 N. E. See Eaton v. Smith, 20 Pick. 150, 156; Wald- 802, 17 L. R. A. (N. S.) 714; Hatch v United stein v. Dooskin, 220 Mass. 232, 107 N. E. 927. States Casualty Co., 197 Mass. 101, 105, 83 The defendant relies on McDonough v. Met- N. E. 398, 14 L. R. A. (N. S.) 503, 125 Am. ropolitan Life Ins. Co., 228 Mass. 450, 117 St. Rep. 332, 14 Ann. Cas. 290. N. E. 836; New York Central & Hudson Riv

The car in which the plaintiff was riding er Railway v. York & Whitney Co., 230 Mass. was seriously damaged. The dashboard and 206, 119 N. E. 855, and St. John Brothers controller at the front of the car were bent, Co. v. Falkson, 237 Mass. 399, 130 N. E. 51. displaced and forced backward, and the air They are not in conflict with this principle; pipes at this end were severed, the brake in these cases more than one rational infer- standard and handles were disabled, the parence of fact from the evidence was possible. | tition between the platform and the rest of

[3] The meaning of the word "wreck” has the car was damaged, the glass broken, a been passed on in many cases arising under part of the roof called the bonnet was smashmaritime law. In such cases the word has ed and crushed, some of the uprights of the a technical significance and is descriptive of running board were injured, and the brass a vessel that is a total loss, and may be castings bent. In our opinion the evidence abandoned by the owner. Commonwealth shows that the front part of the car at least Ins. Co. v. Chase, 20 Pick. 142, 145; Taber was wrecked, that there was a wrecking of V. China Mutual Ins. Co., 131 Mass. 239. A the car; and that the plaintiff's injuries reship becomes a wreck, in the words of Chief sulted "directly to or in consequence of the Justice Parsons (Wood v. Lincoln & Kenne- wrecking of said car," within the terms of beck Ins. Co., 6 Mass. 479, 482 [4 Am. Dec. the policy. 163])—

[6] If there was a wrecking of the car, it "when, in consequence of the injury she has would be giving the words of the contract too received, she is rendered absolutely innaviga- narrow a meaning to say that the plaintiff's ble, or unable to pursue her voyage, without injuries were not due, or did not result in repairs exceeding the half of her value." consequence of the wrecking, and were to be

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