Sidebilder
PDF
ePub

Co., 194 Mass. 412, 80 N. E. 460, 120 Am. St. Rep. 562; Smith v. Lincoln, 198 Mass. 388, 84 N. E. 498; Gainey v. Peabody, 213 Mass. 229, 100 N. E. 336; Murray v. Nantasket Steamboat Co., supra. The facts appearing in Smith v. New England Cotton Yarn Co., 225 Mass. 287, 114 N. E. 353, make it inapplicable to the case at bar.

The plaintiff could have discovered all the conditions surrounding the place where he was to do his work. He could have seen the boiler pit by a proper inspection; it was not hidden, nor in the nature of a trap. Without considering the question of the plaintiff's lack of care, he cannot recover. Judgment is to be entered on the verdict. So ordered.

CARROLL, J. Under an arrangement be-livan v. New Bedford Gas & Edison Light tween the parties, the plaintiff, an electrical Co., 190 Mass. 288, 76 N. E. 1048; McCaffercontractor, performed all the electrical work ty v. Lewando's French Dyeing & Cleansing required by the defendant in the buildings owned by him. When work of this kind was to be done, a call was sent to the plaintiff's place of business. September 19, 1921, a request to look after the electric call bells in the defendant's apartment house was received, and the following afternoon, between three and four o'clock, the plaintiff, in response to the call, entered the house through the basement door and proceeded to find the batteries. The janitor was not present, and the only light in the basement was that coming through the leaded panes of the outside door. The plaintiff saw a door (marked "E" on the plan) which he opened, and passing into the room known as. the boiler room fell into the unguarded boiler pit, three feet nine inches in depth. He testified that as he went into the boiler room he had a flashlight and threw "the light in around the corner to see where the shelf would be to hold the bat. teries"; that he took two or three steps and fell into the pit. On cross-examination he testified that after his accident the janitor pointed out the batteries to him and he had no difficulty in seeing them. The defendant, called by the plaintiff, testified that the batteries were on a "sort of a shell" on a shelf Though issue as to status of one claiming in the hallway, in a container about a foot to be widow of deceased is preliminary to or eighteen inches from the ceiling. A ver- question of probate of will, and may properly dict was returned for the defendant, by the be tried and decided first, refusal of probate court to frame issues for trial by jury, dedirection of the trial judge, and the case re-signed to establish status of such person, is ported. not error under G. L. c. 215, § 16.

WELLINGTON v. DE CORDOVA. (Supreme Judicial Court of Massachusetts. Suffolk. Feb. 27, 1925.)

Wills

317-Refusal to frame issue for trial by jury, designed to establish status of one claiming to be widow of deceased, held not error.

Appeal from Probate Court, Suffolk County; J. R. McCoole, Judge.

Proceedings by Arthur J. Wellington for allowance of the will of Julian Dana De Cordova, deceased, wherein Alice De Cordova appeared, alleging she was widow of deceased, and requested that issues be framed for trial by jury to determine her status. From decree dismissing motion and refusing to frame such issues, she appeals. Decree affirmed.

W. C. Rice, of Boston, for appellant. W. R. Buckminster, of Boston, for appellee.

In Murray v. Nantasket Beach Steamboat Co., 248 Mass. 587, 143 N. E. 623, the plaintiff had been at work on a boat belonging to the defendant. On the day in question while gathering his tools, he approached a door of the hose house and fell through a hatchway. It was held that he had every opportunity to examine the premises and must be considered to have assumed the risks of his em. ployment, as they were apparent, or he could have observed them, if he had exercised his right to examine the premises before entering upon his employment. The case at bar is governed by the Murray Case. The plaintiff came upon the defendant's premises as an independent contractor, and the defendant was not bound to warn him of dangers RUGG, C. J. A petition was duly presentwhich were obvious or could have been dis-ed to the probate court for the allowance of covered by reasonable inspection. Pettingill the will of Julian Dana De Cordova, late of v. Porter, 219 Mass. 347, 107 N. E. 269. The defendant's duty was no greater than that which he owed his own employees; he was not obliged to change the construction of his premises. The plaintiff agreed to work on the premises as they existed at the time, and he assumed all the risks incidental thereto which were obvious or could have been discovered by a reasonable inspection. Murphy v. Greeley, 146 Mass. 196, 15 N. E. 654; Sul-] It is manifest that the question whether

Brookline. Alice De Cordova appeared in that proceeding, alleging that she was the widow of the deceased. Her status was denied. She presented a petition that several issues be framed for trial by jury, designed to establish whether she is the widow of the deceased. Her appeal from the refusal of the judge of probate to frame issues brings the case here.

(146 N.E.)

Report from Superior Court, Norfolk County; Patrick M. Keating, Judge.

Alice De Cordova is the widow of the dece- highway, he must show his own freedom from dent is preliminary to the question whether negligence directly contributing to that damage. the instrument offered for probate should be allowed as his last will. Although the two issues might be tried together, it was entirely proper that the status of Alice De Cordova be tried and decided first. Goff v. Britton, 182 Mass. 293, 65 N. E. 379; Pattee v. Stetson, 170 Mass. 93, 48 N. E. 1022.

No error of law is disclosed on this record. Instances may be found in the books where order has been made for the trial to a jury of issues more or less similar to those here requested. See, for example, Phillips v. Chase, 203 Mass. 556, 89 N. E. 1049, 30 L. R. A. (N. S.) 159, 17 Ann. Cas. 544, where questions as to undue influence and coercion in an adoption were framed. In Lufkin v. Lufkin, 182 Mass. 476, 65 N. E. 840, a question like that here prayed for was tried to a jury. These cases are rare exceptions and do not indicate a policy. The general practice of the Supreme Judicial Court prior to the enactment of St. 1919, c. 247, § 7, now G. L. c. 215, § 16, was to frame issues for trial to a jury only in cases involving the probate of wills. That practice is discussed fully and set out at length in Fuller v. Sylvia, 240 Mass. 49, 133 N. E. 384. It is not necessary to traverse that ground again. What there was said is applicable to the case at bar. The action of the judge of probate was in conformity to the principles there stated. It was in harmony with numerous more recent decisions. Cook v. Mosher, 243 Mass. 149, 137 N. E. 299; Clark v. McNeil, 246 Mass. 250, 140 N. E. 922; Burroughs v. White, 246 Mass. 258, 140 N. E. 940; Connell v. Sokoll, 247 Mass. 203, 142 N. E. 55; Smith v. Brewster, 247 Mass. 395, 142 N. E. 56; Old Colony Trust Co. v. Pepper, 248 Mass. 263, 142 N. E. 817: Old Colony Trust Co. v. Spaulding, 250 Mass. 145 N. E. 927; Wilbar v. Diamond, 249 Mass. 568, 144 N. E. 462; Beale v. Davis, 250 Mass. 146 N. E. 354.

Decree dismissing motion affirmed.

BROWN v. ALTER.

(Supreme Judicial Court of Massachusetts. Norfolk. Feb. 27, 1925.)

1. Municipal corporations 705(4)-Unregistered automobile nuisance on highway.

In action for damages from automobile collision, automobile unregistered, as required by statute, must be assumed nuisance on highway. 2. Municipal corporations 705 (10) - Contributory negligence of automobile driver precludes recovery, though other car was unregistered.

Before automobile driver can recover damages from collision with another car which, because unregistered, constituted a nuisance on

Action of tort by Austin G. Brown against Frederick A. Alter for damages to automobile from collision at street intersection. On report from superior court. Judgment for defendant.

John A. Canavan and Samuel. P. Sears, both of Boston, for plaintiff. Coughlan Bros., of Abington, for defend

ant.

RUGG, C. J. This is an action of tort to recover damages sustained by the plaintiff through the collision at intersecting streets of an automobile owned and driven by him with another automobile owned and driven by the defendant. defendant was not registered and he had no license as an operator. The jury were instructed that the defendant at the time of the collision was an outlaw and trespasser on the highway, and that his automobile was a nuisance, and that they need not consider whether the plaintiff was guilty of gross negligence or of willful misconduct. In answer to a special question, the jury found that want of due care on the part of the plaintiff contributed directly to his damage. Thereupon a verdict was directed for the defendant. The correctness of this ruling is reported for our determination.

The automobile of the

[1, 2] The automobile of the defendant must be assumed to have been a nuisance on the highway, since it was not registered in conformity to our statutes. Dudley v. Northampton Street Railway, 202 Mass. 443, 89 N. E. 25, 23 L. R. A. (N. S.) 561; Dean v. Boston Elevated Railway, 217 Mass. 495, 105 N. E. 616; Gondek v. Cudahy Packing Co., 233 Mass. 105, 110, 123 N. E. 398; Washburn v. Union Freight Railway, 247 Mass. 414. 142 N. E. 79. That fact has important effects upon the rights of the defendant to recover for injuries done him by others. The plaintiff as a traveler on the highway cannot recover of the defendant for damage caused by a nuisance maintained on the highway without showing that his own want of care did not directly contribute to that damage. This is the rule of our own cases. The question was clearly decided in Smith v. Smith, 2 Pick. 621, 13 Am. Dec. 464. It has been followed in Parker v. Adams, 12 Metc. 415, 46 Am. Dec. 694, and Sherman v. Fall River Iron Works, 2 Allen, 524, 526, 79 Am. Dec. 799. Doubtless it has been accepted without question as a settled principle in the trial of many causes. Practical experience has established it as a custom regulating conduct. It seems to us to be supported by the great weight of authority. Parker v. Union Wool

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

en Co., 42 Conn. 399, 402; Baltimore v. Mar- and upon her application the court framed riott, 9 Md. 160, 176, 66 Am. Dec. 326; Ir- the following issues to be submitted to a win v. Sprigg, 6 Gill (Md.) 200, 205, 46 Am. jury: Dec. 667; Crommelin v. Coxe, 30 Ala. 318, 329, 68 Am. Dec. 120; Butterfield v. Forrester, 11 East, 60; Congreve v. Smith, 18 N. Y. 79; Clifford v. Dam, 81 N. Y. 52, 57.

There is much to be said in favor of this rule as an abstract principle. The congestion upon highways has become so great that the general public safety seems to demand that there be no relaxation of the requirement of due care on the part of all travelers. Doubtless in many and perhaps in most aspects of the law of nuisance, the element of his due care has no relevancy to the right of a plaintiff to recover compensation for his injuries or to invoke the aid of equity for abatement of the source of his harm. See Boston Ferrule Co. v. Hills, 159 Mass. 149, 34 N. E. 85, 20 L. R. A. 844. The case at bar does not call for an exposition of these principles.

There was no error in the decisive rulings or refusals to rule by the trial judge. Judgment for defendant.

ANGELL et al. v. LIGHTHIPE.

In re SHAW'S ESTATE.

(Supreme Judicial Court of Massachusetts. Suffolk. Feb. 28, 1925.)

1. Wills 316(2)-Issue of testamentary capacity properly allowed.

In will contest, issue of testator's capacity to make will held under facts properly allowed in framing issues. 2. Wills influence held proper.

316(3)-Granting issue of undue

In will contest, granting issue of undue influence of principal legatees held under facts to have been properly allowed in framing issues. 3. Wills 159-Undue influence must be operative at time will was executed.

Undue influence is a species of and partakes of nature of fraud, and must be operative at time will was executed.

"Was the said Charles N. Shaw at the time of the execution of said alleged will of sound mind?"

"Was the execution of said alleged will procured through the fraud or undue influence of Lillian H. Angell and Isaac Harold Angell and Robert K. Goodwin or either of them?"

[ocr errors]

[1, 2] The petitioner appealed. G. L. c. 215, 9, 16. A stenographer was appointed under section 18, to take the evidence, but no witnesses were called. The contestant's counsel

submitted an offer of proof with many specifications to which counsel for the petitioner replied by an offer consisting largely of a general denial. The proposed issues accordingfact on which the establishment of the will ly presented a controversy over matters of ultimately depended. Fuller v. Sylvia, 240 Mass. 49, 133 N. E. 384. It appeared that

the testator who was born February 1, 1861, made the alleged will December 29, 1923, and died March 5, 1924. While he had actively conducted a very successful and profitable business in company with one Page under the firm name of Page & Shaw as makers and venders of candy, his health after the assets and good will of the partnership had been transferred to the corporation of Page & Shaw, Inc., began to be considerably impaired. In December, 1923, he was suffering from an incurable organic disease which af fected his mind. He was subject to hallucinations, and believed that people intended to take his life. The death of his wife December 25, 1923, also affected his mental condition, and he became greatly agitated upon being informed that she had taken posses sion of bonds and securities approximating he considered his own property. It was untwo hundred thousand dollars in value, which der these conditions that he went to a hospital for mental treatment, and while there executed his will. The first issue was properly allowed. Whitney v. Twombly, 136 Mass. 145, 146, 147; Smith v. Brewster, 247 Mass. 395, 142 N. E. 56. We pass to the second issue. The testator in 1910 became

Appeal from Probate Court, Suffolk Coun- friendly with Lillian H. Forsaith, who was

ty; W. M. Prest, Judge.

In the matter of the estate of Charles N. Shaw, deceased. Petition by I. Harold Angell and others for probate of will, contested by Effie P. Lighthipe. Issues were framed for jury, and petitioners appeal. Affirmed.

S. Hoar, of Boston, for appellants.
H. R. Bailey, of Boston, for appellee.

BRALEY, J. The will of Charles N. Shaw having been offered for probate by the petitioner, the respondent a first cousin and his sole heir at law appeared as a contestant

an employee of the partnership, and by marriage in October, 1921, became the wife of Isaac Harold Angell. It could be found on the offer of expected proof, that through her influence he purchased land and buildings and had the title conveyed to her, and that while occasionally visiting his wife, he made his home with Miss Forsaith and her par ents. This gift was followed by the purchase and conveyance to her of other parcels of land. She also received a substantial amount of stock of Page & Shaw, Inc., and all of the donations were in addition to her compensation as an employee. In the summer of 1913

(146 N.E.)

benefit of the bulk of his fortune, and in the accomplishment of this purpose, Mr. Angell who is named as executor, and Mr. Goodwin cooperated. Emery v. Emery, 222 Mass. 439, 111 N. E. 287; Neill v. Brackett, 234 Mass. 367, 370, 126 N. E. 93; Raynes v. Sharp, 238 Mass. 20, 130 N. E. 199; Neill v. Brackett, 241 Mass. 534, 135 N. E. 690. It cannot be said that there was any error of law in granting the second issue. Old Colony Trust Co. v. Spaulding (Mass.) 145 N. E. 927. Order affirmed.

and of 1920 she lived with him in the county continued in one form or another to the date at his hired house. Acting under her influ- of the will, had gained, and retained control ence the testator in 1920 also assisted in the over the testator's mind, by which he was information of the Keswick Candy Company induced to make a will cutting off Mrs. Lightwhich the contestant's husband Charles F. hipe, and giving to herself and husband the Lighthipe, an attorney at law, apparently a stockholder, served as director, and a retail candy store was started which was largely managed by Miss Forsaith, and although Mrs. Shaw strongly objected to the relations previously described, her objections were unavailing. But in 1921 Miss Forsaith, now Mrs. Angell, and Mr. Lighthipe disagreed concerning the management of the Keswick Candy Company, and the testator who previously had been very friendly with Mr. and Mrs. Lighthipe became hostile, and influenced by Mr. and Mrs. Angell terminated Lighthipe's employment as his counsel, and retained Robert E. Goodwin, Esq., who had been employed by Mr. Angell in his own private business. A trip to California in 1923, induced by the Angells who accompanied him, was taken by the testator who paid the expenses. Meanwhile he had become excitable, forgetful, and unmindful of his financial obligations. But notwithstanding these infirmities he bought early in 1923, at their inducement, a farm, the title being taken in the name of Mrs. Angell, and on which he made costly improvements. The end however was evidently approaching, and the testator, as has been said, went to a hospital in December, 1923, where he executed the will, and while there he was constantly attended by Mr. and Mrs. Angell, who prevented his friends from access to him. The closing sentence of the ninth article of the will specifically declares:

"I have intentionally omitted to make any gift to my cousin Effie P. Lighthipe, wife of Charles F. Lighthipe, or to said Charles F. Lighthipe, it being my will that neither he or she shall have a share in my estate."

[3] It was drawn by Mr. Goodwin, who also is an attesting witness, and the contestant's offer states that Mr. Goodwin and Mr. and Mrs. Angell without any just cause were hostile to the contestant and her husband. The will itself with the exception of ten thousand dollars, gives to Mrs. Angell and her husband, absolutely or in trust for their joint lives, or the survivor of them, his entire property. It is true that undue influence which is a species of fraud or partakes of the nature of fraud, must be operative at the time the will is executed, yet the judge could assume that the foregoing statements of counsel would be substantiated by evidence. Bacon v. Bacon, 181 Mass. 18, 62 N. E. 990, 92 Am. St. Rep. 397; Whitcomb v. Whitcomb, 205 Mass. 310, 314, 91 N. E. 210, 18 Ann. Cas. 410; Cook v. Mosher, 243 Mass. 149, 137 N. E. 299. If so viewed, Mrs. Angell by reason of her personal relations with him, which

WALL v. BRITTON STEVENS MOTORS co. (Supreme Judicial Court of Massachusetts. Suffolk. Feb. 28, 1925.)

Sales

279-Contract for sale of motor truck held not express warranty of quality or condition of truck.

Contract for sale of motor truck, whereby terial or workmanship and agreed to replace seller guaranteed all parts against defective mafree of charge any defective parts, held not an expressed warranty of quality of materials or condition of truck, nor a promise that it could be satisfactorily operated entitling purchaser to damages for inadequacy or unsatisfactory service of motor.

Exceptions from Superior Court, Suffolk County; Lawton, Judge.

Action of contract by Patrick J. Wall against the Britton Stevens Motors Company. On defendant's exceptions to denial of its motion for directed verdict. Exceptions sustained.

F. M. Carroll, of Boston, for plaintiff.
J. H. Blanchard, of Boston, for defendant.

BRALEY, J. The declaration alleges that the defendant sold and delivered to the plaintiff a truck equipped with a motor and engine so inadequate and defective that he has suffered great trouble and expense in making repairs and lost the use of the truck during the time it has been laid up for repairs. The jury on the evidence of the plaintiff and his witnesses would have been warranted in finding that on May 7, 1921, he entered into a contract in writing for the purchase of a new "five-ton Macar truck," which was delivered May 18, 1921, and used in his business as a mover of "bales of cotton and wool." But after using it he told the defendant's president "that the truck was not running good. It was blowing out gaskets and causing trouble every time he

* * **

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

took it out." The reply was "that every truck was the same way until they were worked out." It could be found that the motor which was in the truck when it came from the factory had been taken out and a secondhand motor installed previous to the sale. The plaintiff sent the truck to the defendant to be repaired, and it appeared on examination that the valves of the motor had been used, and that a crack running between intake valves raised the block so that the heads would not come down firmly on the gaskets, which caused them to blow out reducing the motor to one half of its working power. A new block was put in and the valves reground, but after repeated efforts to remedy these defects the plaintiff sold the truck and brought this action in contract for damages.

[ocr errors]

The rights of the parties depend upon the written contract which expressly abrogates all previous negotiations, and states that "no modification shall be binding upon either * * * unless in writing * * party accepted and agreed to by the purchaser," and approved by an executive officer of the company. Will M. Kinnard Co. v. Cutter, Tower Co., 159 Mass. 391, 34 N. E. 460. The material provision, however, is the "guaranty," whereby the company guarantees all parts of trucks against defective material and workmanship for a period of ninety days from date of delivery "to the extent that they will furnish free of charge f. o. b. factory new parts in exchange for defective parts provided said defective parts are returned to the factory charges prepaid. This guaranty does not apply to tires, electrical equipment or other accessories not manufactured by the company, nor to damages nor breakages resulting from wear or tear, accidents or misuse."

The plaintiff bases his right to recover solely on the ground, that the "guaranty" constitutes an express warranty. But there is no affirmation or representation of the quality of the materials or condition of the truck; nor did the defendant promise that it could be satisfactorily operated. If the language implies that parts of the truck when it was used might show defects, the defendant undertook only to furnish free of charge new parts in exchange for defective parts when returned to the factory, charges prepaid, within ninety days from the date of delivery. Henshaw v. Robins, 9 Metc. 83, 88, 43 Am. Dec. 367; Glackin v. Bennett, 226 Mass. 316, 115 N. E. 490; Ireland v. Louis K. Liggett Co., 243 Mass. 243, 246, 137 N. E. 371; G. L. c. 106, § 14. The case of American Locomotive Co. v. National Grocery Co., 226 Mass. 314, 115 N. E. 404, L. R. A. 1917D, 1125, on which the plaintiff relies, was an action against the buyer for repairs made by the seller to a motor truck

purchased under a contract materially dif ferent.

The motion for a directed verdict should have been granted, and the exceptions must be sustained. So ordered.

DURGIN'S CASE.

(Supreme Judicial Court of Massachusetts. Suffolk, Feb. 26, 1925.)

1. Master and servant 405 (6)—Injury to employee in automobile collision held not result of serious and willful misconduct of foreman.

Injury to employee of baking company in automobile collision held under evidence not result of serious and willful misconduct of route foreman directed to instruct employee as to business of running route, so as to authorize recovery of double compensation under G. L. c. 152, § 28, though collision was result of violation of chapter 90, §§ 14, 17. 2. Master and servant 387-"Negligence" and serious "willful misconduct" distin. guished.

"Negligence" and serious "willful misconduct" are different in kind, latter involving conduct of quasi criminal nature, intentional doing of something either with knowledge that it is likely to result in serious injury or with wanton and reckless disregard of probable con

sequences.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Willful Misconduct.]

Appeal from Superior Court, Suffolk County.

Proceeding under Workmen's Compensation Act for double compensation under G. L., c. 152, § 28, by Edmund Q. Durgin, claimant, opposed by the Grocers' Baking Company, employer, and the Employers' Indemnity Corporation, insurer. Denial of award by single member of Industrial Accident Board was affirmed by the superior court, and claimant appeals. Affirmed.

J. K. Berry, of Boston, for appellant. L. H. Peters, of West Medford, and J. H. Baldwin, of Boston, for appellee insurer.

CROSBY, J. This is a proceeding brought by an employee for double compensation under G. L. c. 152, § 28, on the ground that he was injured by reason of the serious and willful misconduct of a person regularly intrusted with and exercising powers of superintendence. The employee was injured on September 11, 1922, while in the employ of the Grocers' Baking Company, and has since been paid compensation for total incapacity for work. It is the contention of the claimant that his injuries were received by reason of the serious and willful misconduct of

« ForrigeFortsett »