(146 N.E.) one Bailey, another employee of the Grocers' | two streets before turning to the left; and Baking Company, and that Bailey was regularly intrusted with and was exercising powers of superintendence at the time of the accident. that Bailey was operating his machine at such a rate of speed that he was not able to control it after the first collision. It is found that the claimant's injuries resulted from violation by Bailey of the statutes regulating the operation of motor vehicles, and by the negligence of the operator of the car of the Merchants' Towel & Supply Company, but that such violations were not gross and wanton; that Bailey did not intend to injure Durgin and did not grossly, wantonly or recklessly expose him to injury. It is found as a fact that Bailey's conduct in the operation of the automobile did not constitute anything more than ordinary negligence, and on that ground the claim for double compensation was dismissed. The Industrial Accident Board on review affirmed and adopted the findings of the single member. The single member of the Industrial Accident Board found that Bailey at the time the claimant was injured was a “route foreman' employed by the subscriber, that it was Bailey's duty to instruct Durgin 'as to the business of running the route, the prices of bread and how to make out receipts and bills and the general business of running a wholesale route'"; that on the day of the accident Bailey was "breaking in" Durgin on a route in Lynn; that they drove to Lynn in an automobile truck owned by the subscriber and operated by Bailey; that after going over the route and making known to Durgin the customers and instructing him as to his duties, they were returning when the accident [1, 2] Upon consideration of the evidence occurred; that Durgin was an experienced op- a finding of serious and willful misconduct erator of automobiles, he had driven several on the part of Bailey would not have been trucks and was familiar with their operation, warranted. The finding that Bailey was not and that he needed no instructions in this re-regularly intrusted with and exercising powspect from Bailey and that the latter gave him none; and that Bailey was not exercising the power of superintendence over Durgin at the time of the accident. The single member also found that, while the truck, still operated by Bailey with Durgin on the seat beside him, was on the way back to the subscriber's plant, in Roxbury, and was proceeding along Chelsea street, in Charlestown, and had reached the intersection of that street with Vine street, it came into collision with an automobile truck of the Merchants' Towel & Supply Company as it came out of Vine street; that thereafter Bailey lost control, of his machine and it "shot diagonally across the street to the left and collided with an automobile coming in the opposite direction"; that Durgin was crushed between the last-named automobile and that of the subscriber. Although the single member found that Bailey violated G. L. c. 90, §§ 14, 17, relating to the operation of motor vehicles on public ways, he also found that the claimant's injuries were caused by the combined negligence of Bailey and the driver of the machine owned by the Merchants' Towel & Supply Company; that the negligence of the latter consisted in attempting to turn into Chelsea street at a sharp angle instead of keeping to the right of the centers of the ers of superintendence at the time of the accident was fully justified. It could have been found that he was directed merely to instruct the claimant respecting the nature of the work he had been employed to perform; that Durgin was familiar with the operation of the automobile, and received no instructions of that nature and needed none; and that the relation between Bailey and the claimant was merely that of fellow employees. Buckley v. Dow Portable Electric Co., 209 Mass. 152, 154, 95 N. E. 222. If it be assumed that the conduct of Bailey in the operation of the automobile was negligent, that alone is not sufficient to entitle the claimant to double compensation under the statute. Negligence and serious and willful misconduct are entirely different in kind. The latter "involves conduct of a quasi criminal nature, the intentional doing of something either with the knowledge that it is likely to result in serious injury or with a wanton and reckless disregard of its probable consequences." Burns' Case, 218 Mass. 8, 10, 105 N. E. 601, 602 (Ann. Cas. 1916A, 787); Riley's Case, 227 Mass. 55, 56, 57, 116 N. E. 259; Beckles' Case, 230 Mass. 272, 274, 119 N. E. 653; Prondecka v. Turners Falls Power & Electric Co., 241 Mass. 100, 102, 134 N. E. 352. Decree affirmed. FINANCE CORPORATION OF NEW ENGLAND, Inc., v. PARKER et al. (two cases.) (Supreme Judicial Court of Massachusetts. Suffolk. Feb. 26, 1925.) 1. Executors and administrators 441—Appearance by executor held unnecessary and not to subject person to jurisdiction nor waiver of defects in process. Where defendant's attorney on February 12, suggested death of defendant and plaintiff thereupon prayed order to compel executor to appear and defend, appearance of executor on March 13 was unnecessary in view of St. 1917, c. 101, and rule 7 of superior court and, being filed before time allowed by rules for filing motions to dismiss and pleas in abatement had expired, did not subject his person to court's jurisdiction nor waive defects in citation. 2. Executors and administrators 441-Gen cannot waive defenses of limitation. Executors cannot waive G. L. c. 197, § 9, and G. L. c. 228, § 5, requiring actions to be brought within year of qualification and forbidding issuance of citation after expiration thereof; it being their duty to insist on them. 73-After abate 4. Abatement and revival ment of action by death of defendant, plaintiff may revive it and summon executor to defend. In view of G. L. c. 231, § 4, and G. L. c. 228, §§ 4, 5, 7, on death of defendant action against him abates, but plaintiff by taking proper steps at proper time may revive it and summon executor to defend. 5. Abatement and revival 74(1)-Sustaining plea in abatement to citation to executor to appear and defend held proper. Where defendant died pending action and citation to executor under G. L. c. 228, §§ 4. 5, 7, was not issued within one year, it was issued thereafter improvidently and in violation of statute, and there was no error in sustaining executor's plea in abatement. 6. Dismissal and nonsuit 73-Motion to dismiss raises only matter apparent on record. Technically motion to dismiss raises only matter apparent on record. 7. Appeal and error 1061(2)-Appeal from order of dismissal not sustained, though order erroneous when plea of abatement sustained. Where record did not disclose dates showing that citation to executor was issued more than one year after giving of bond, motion to dismiss should have been denied; but no benefit to plaintiff could result from sustaining appeal when plea in abatement was properly sustained, and appeal will not be sustained. 8. Trial 260(1)-Error not predicated on refusal of requests substance of which was given. Error cannot be predicated on refusal of requests, substance of which was given in charge. 9. Trial 295(5)-Charge that, if you give any value at all it is value, not misleading. In action against indorsers of notes, charge that "if you give any value at all it is value" held not misleading, when given to aid in explaining that anything of value constituted value required for consideration by G. L. c. 107, § 48. 10. Bills and notes 256-Failure to take proper steps to take judgment against one indorser did not release subsequent indorser. As holder could under G. L. c. 231, § 4. sue in one action all or any indorsers of note, plaintiff's failure to take proper steps to seestate did not discharge second indorser. cure judgment against prior indorser or her 11. Bills and notes 256-Payee could refuse or cease to sue any party. Payee of note could not release maker or prior indorser without releasing subsequent parties, since release would defeat right of latter to have recourse to prior party, but so long as payee did not impair right of subsequent party it could cease to sue or refuse to sue any party. 12. Bills and notes 256-Loss of attachment of real estate of prior indorser held not negligent loss of security which subsequent indorser was entitled to have pre'served. In action against indorsers of notes, loss of attachment of prior indorser's real estate under G. L. c. 231, § 116, by delay in citing her executor after her death, was not negligent loss of security which second indorser was entitled to have preserved for his benefit. 13. Bills and notes 256-If action against estate of prior indorser was barred by limitation, it was damnum absque injuria to subsequent indorser. In action against indorsers of note where prior indorser's death was suggested and action against her executor was barred by limita tions, G. L. c. 197, § 9, and G. L. c. 228, §§ 4-7, it was damnum absque injuria as to sec ond indorser. Exceptions and Appeal from Superior Court, Suffolk County; Marcus Morton, Judge. Action of contract by the Finance Corporation of New England, Inc., against Charles H. Parker, executor, and another, to recover from defendants as indorsers of note. From order sustaining plea in abatement of de (146 N.E.) fendant Parker, plaintiff excepts and ap-1 both attorneys, filed an answer which dispeals, and from verdict for plaintiff against defendant Albert D. Sherman, latter excepts. Exceptions overruled, and judgment entered on verdict. closed that he did not waive but insisted upon his motion to dismiss and plea in abatement, and which pleaded the same facts in defense, together with the short statute of limitations, G. L. c. 197, § 9, and G. L. c. 228, §§ 4-7, and other matters to the merits. [1] The motion to dismiss and the plea in abatement were heard together on March 24, 1924, evidence being introduced; and the judge after consideration, on March 25, sustained the plea in abatement. He also indorsed "allowed" on the motion to dismiss. The plaintiff appealed from these rulings and orders, and excepted thereto as well. contends that the defenses set up in the plea and the motion to dismiss are waived by the general appearance filed March 13, and are no longer open. He There would have been more force in this contention before the enactment of St. 1917, c. 101. G. S. Ryan, of Boston, for plaintiff. C. F. Eldredge, of Boston, for defendants. WAIT, J. This is an action upon a promissory note, brought by the payee against two of nine indorsers, all of whom signed the note before delivery for the accommodation of the maker. The name of the defendant Mrs. Parker preceded that of Sherman upon the note. No security for the payment other than the indorsements was received by the payee. On February 6, 1922, the plaintiff brought an action against Mrs. Parker and Mr. Sherman and, on the writ, attached real estate of considerable value belonging to Mrs. Parker. The defendants duly appeared and made answer. Mrs. Parker died November 27, 1922; and on February 11, 1924, the attorney who had appeared and answered for her in March of 1922, filed a suggestion of her death and of the appointment on January 11, 1923, of Charles H. Parker as her executor. The next day the plaintiff filed a motion which recited the death and appointment, and which prayed order to compel the executor to appear and defend. The motion did not set out any dates on which the executor gave bond and filed notice of his qualification. The court on the same day, February 12, 1924, ordered notice to issue returnable March 3, 1924. The executor gave bond on January 11, gave notice of his appointment on January 24, and filed affidavit of notice on January 29, 1923; all more than one year before the issue of the order of notice or citation to appear and defend. On March 13, 1924, the attorney who had filed the suggestion of death, filed an appearance for Charles H. Parker, executor. On March 17, another attorney filed a special appearance for the executor, and both attorneys joined in filing a motion by the executor to dismiss the citation to appear and defend on the ground that more than a year having elapsed after the giving bond by the executor and before the issue of the citation, the issue was improper and beyond the jurisdiction of the court. At the same time they filed a plea in abatement which set out the same facts in regard to the death of Mrs. Parker, and the appointment, qualification, giving of bond, etc., of the executor; alleged that the summons or citation was granted more than a year after his qualification and The occasion for such separate appearance prayed that citation and summons be vacat- in the Superior Court, however, disappeared ed and the executor be hence discharged with with the adoption of the rules of November costs. 6, 1915, which fixed the time for demurrers, Both motion to dismiss and plea in abate-pleas in abatement and motions to dismiss ment recited that the executor appeared at the same time fixed for answers to the specially. merits, and the passage of the Statute of The occasion for the entry of an appearance in an action at law in the Superior Court, apart and distinct from a pleading in the action, arose from the statutory requirement that a default should be entered by the clerk against any defendant who did not, within a specified number of days after the return day named in the precept summoning him into court, appear in answer to the precept. This period for many years was ten days. St. 1852, c. 312, § 10; St. 1870, c. 68; P. S. c. 167, § 47; R. L. c. 173, § 54. The rules of the court made no provision fixing the time of appearance for a defendant, at law, but they did require that demurrers, pleas in abatement and motions to dismiss should be filed within the time allowed for appearance, and they allowed a longer time for filing answers to the merits. Consequently, a party who wished to delay answering until the end of the full time allowed by the rules, in order to avoid being defaulted before the time for answer had expired, was compelled to enter an appearance within the time fixed by the statute. This appearance, unless limited to some special grounds of objection thereto, subjected his person to the jurisdiction of the court, and waived all defects in the process by which he was summoned or in its service, if the court had jurisdiction over the subject matter of the litigation. Brown v. Webber, 6 Cush. 560; Gahm v. Wallace, 206 Mass. 39, 91 N. E. 1002; Cheshire National Bank v. Jaynes, 224 Mass. 14, 112 N. E. 500; Gray v. Thrasher, 104 Mass. 373. The executor also on March 19, 1924, by | 1917, which fixed the same date for a default if no appearance had been entered. The can result from sustaining the appeal on the pleading became the appearance, as stated motion to dismiss when he fails on the plea in rule 7 of the Superior Court. No other in abatement. The citation should be vacatwas needed. This appearance was general | ed. Without approving the course pursued or special as the pleading indicated, but was by the trial judge, we, nevertheless, do not to be taken as general unless otherwise speci- | feel required to sustain the appeal. The fied. The separate appearance of March plaintiff's exceptions are overruled and its 13, was, therefore, unnecessary; and, as it appeal is dismissed. was filed before the time allowed by the rules for filing motions to dismiss and pleas in abatement had expired, and as nothing appears to indicate that the plaintiff did, or failed to do, anything to his prejudice in reliance on that appearance, it should not be given effect to defeat them. [2, 3] It is not to be assumed that the executor intended by a general appearance to waive the defense of the special statutes of limitations which require action to be brought within a year after his qualification, G. L. c. 197, § 9, and forbid the issue of a citation after expiration of that year, G. L. c. 228, § 5. An executor has no right to waive these statutes. It is his duty to insist upon them. Stebbins v. Scott, 172 Mass. 356, 362, 52 N. E. 535, and cases cited; Bartlett v. Tufts, 241 Mass. 96, 134 N. E. 630; Beal v. Lynch, 242 Mass. 65, 136 N. E. 172. [4, 5] Upon the death of Mrs. Parker, the action as against her abated; but the plaintiff by taking proper steps at the proper time could revive it and summon the executor to defend in this action. G. L. c. 231, § 4; G. L. c. 228, §§ 4, 5, 7; Colt v. Learned, 133 Mass. 409. When a party dies pending the action, G. L. c. 228, § 4, enacts that a suggestion of the death shall be made, and, unless the executor appears voluntarily, a citation may be taken out to compel him to appear. Section 5, however, provides that "it shall not issue after the expiration of one year from the time such executor has given bond, if he has given the notice of his appointment as required by law." This section clearly is applicable here. The executor did not appear voluntarily within the year, thus distinguishing this case from Garber v. Hirsh, 225 Mass. 422, 114 N. E. 670. The proper steps were not taken by the plaintiff. The citation was issued improvidently and in violation of the statute. * * The judge was clearly right in sustaining the plea in abatement. [6] Technically the motion to dismiss raises only matter apparent on the record. Crosby v. Harrison, 116 Mass. 114. [7] The record did not disclose the dates which established that the citation was issued more than one year after the giving of the bond. In strict law the motion, treated as a motion to dismiss, should have been denied. The judge, however, seems to have treated it as a motion ancillary to the plea in abatement and designed to vacate the improvident order which allowed the cita After the action as against Mrs. Parker and her estate had been abated, then plaintiff went on to trial against defendant Sherman. The case is, also, before us upon exceptions claimed by that defendant at the trial. At the close of the evidence the defendant presented eight requests for instructions, and claimed exceptions to the refusal to give them. He also excepted to a portion of the charge. [8] The substance of the first four requests, so far as they stated sound law, was given in the charge to the jury. [9] There was no error in the portion of the charge excepted to: "If you give any value at all it is value." The words in their context could not mislead. They were used by the judge to aid in explaining that anything of value constitutes the value which is required for a consideration by G. L. c. 107, 8 48: "Value is any consideration sufficient to support a simple contract." [10] The requests five to eight inclusive, sought in varied language the instruction, in substance, that if, by its failure to take proper steps, the plaintiff had lost the power inal defendant, Mrs. Parker, or her estate, to secure a judgment against the other origthis constituted a release of security to which the defendant Sherman, as a surety with Mrs. Parker, was entitled, and thereby discharged Sherman. The refusal was right. The plaintiff was at liberty to sue in one action all or any of the indorsers to compel payment of the note. G. L. c. 231, § 4. There was no security held by the plaintiff which it was bound to apply before seeking payment from any indorser. The only duty which the plaintiff as payee owed to any indorser, before payment by that indorser, was that it should not defeat or affect injuriously the rights of the indorser against the maker and prior indorsers. The plaintiff, if it began action against all or any of the parties primarily liable to it on the note, was not bound to pursue the action to judgment. [11] It could not release the maker or any prior indorser without thereby releasing subsequent parties, because of such a release it would defeat the right of such subsequent parties to have recourse to the prior party; but, so long as it did not impair the right of the subsequent party, it could, at any moment, cease to sue, or refuse to sue, any party. Hunt v. Bridgham, 2 Pick. 581, 584, 13 Am. Dec. 458; Lewis v. Blume, 226 Mass. 505, 508, 116 N. E. 271; Dunn v. Lerman, (146 N.E.) This right the defendant could have taken away from the plaintiff and have acquired for himself, by paying the note; and only by paying. Sherman did not pay. The plaintiff's right to sue Mrs. Parker, or to preserve its rights against her estate, was no concern of this defendant. When the action could no longer be prosecuted against her because of her death, the plaintiff was not bound by any duty to Sherman to go on with the action against her estate, any more than it was bound to have begun action against her when the writ was brought. Exceptions from Superior Court, Suffolk County; Winfred H. Whiting, Judge. Action of tort by Maria Caruso against Max Lebowich to recover for injuries from fall on stairway. Verdict for plaintiff was on defendant's motion set aside, and plaintiff excepts. Exceptions overruled, and judgment for defendant. W. B. Keenan, of Boston, for plaintiff. PIERCE, J. In this action of tort the plaintiff seeks to recover for personal inju [12] The loss of the attachment of her real ries sustained by her while descending a estate, G. L. c. 231, § 116, was not the neg-flight of iron stairs, leading from the third ligent loss of any security which Sherman was then entitled to have preserved for his benefit by the plaintiff. [13] If this action against Mrs. Parker's estate has been barred by the short statute of limitations, it is damnum absque injuria. These exceptions must be overruled; and as all questions of fact and law have been fully tried and are before us, pursuant to G. L. c. 231, § 124, judgment on the verdict is to be entered against the defendant Sher man. So ordered. CARUSO v. LEBOWICH. (Supreme Judicial Court of Massachusetts. Suffolk. Feb. 27, 1925.) 1. Landlord and tenant 167(8)-Guests and relatives of lessee have no greater rights in rt against landlord than lessee has. Juests and relatives of lessee have no greater rights in tort against landlord than lessee to recover damages for injuries from defective condition of premises. 2. Landlord and tenant 162-Landlord has only duty to use reasonable care to keep premises in condition in which they were let and not to remove obstructions arising from acts of others. Landlord has obligation to exercise reasonable care to keep premises used by tenant, but in landlord's control, in same condition as they were or appeared to be in at time of letting, which does not include duty to remove obstruction arising from natural causes or acts of other persons or tenants. 3. Landlord and tenant 167(8) — Landlord not liable for personal injuries to guest of tenant slipping on banana peel. Guest of tenant could not recover against landlord for injuries from fall on stairs, after slipping on banana peels which had been on steps for three or four days, where there was no evidence that condition was due to any actual negligent act of defendant or of any assumed or contractual duty to keep common passageways free. to the second floor of premises owned by the defendant. The plaintiff was visiting her niece, who lived on the third floor. Other tenants occupied other parts of the apartment, with hallways and stairways which were used in common. The plaintiff's injuries were the result of her falling upon some banana peels, which were black in color, old and dirty and had been upon the steps of the stairs referred to for three or four days. The defendant does not deny that the steps were in the possession and under the control of the defendant, nor is it denied that they constituted a common stairway for the common use of the defendant's tenants occupying the upper and lower floors of the building. [1, 2] Guests and relatives of a family of a lessee have no greater rights in tort against the landlord than the lessee to recover damages for injuries caused by a defective condition of the leased premises or the premises connected therewith. Angevine v. Hewitson, 235 Mass. 126, 129, 126 N. E. 425; Huggett v. Miers [1908] 2 K. B. 278. In this commonwealth as in England the obligation of the landlord to keep the common hallways and passageways in repair is said to arise from the necessities of the case. Flanagan v. Welch, 220 Mass. 186, 191, 107 N. E. 979; Miller v. Hancock, [1893] 2 Q. B. 177. See Hargroves, Aronson & Co. v. Hartopp, [1905] 1 K. B. 472. This obligation is a duty to exercise reasonable care to keep the premises used by the tenant, in the control of the landlord, in the same condition as they were or appeared to be in at the time of the letting. Woods v. Naumkeag Steam Cotton Co., 134 Mass. 357, 45 Am. Rep. 344; O'Malley V. Twenty-Five Associates, 178 Mass. 555, 60 N. E. 387; Fitzsimmons v. Hale, 220 Mass. 461, 466, 107 N. E. 929; Conroy v. Maxwell, 248 Mass. 92, 142 N. E. 809; Urserleo v. Rosengard, 248 Mass. 542, 143 N. E. 497. It includes obstructions negligently caused by the landlord, but excludes the implication of a duty to remove "obstructions arising from natural causes, or the acts of other persons, and not constituting a defect For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |