took it out." The reply was "that every purchased under a contract materially diftruck was the same way until they were ferent. worked out.” It could be found that the The motion for a directed verdict should motor which was in the truck when it came have been granted, and the exceptions must from the factory had been taken out and a be sustained. secondhand motor installed previous to the So ordered. 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

DURGIN'S CASE. intake valves raised the block so that the

(Supreme Judicial Court of Massachusetts. heads would not come down firmly on the

Suffolk. Feb. 26, 1925.) gaskets, which caused them to blow out reducing the motor to one balf of its working 1. Master and servant 405(6)-Injury to power. A new block was put in and the

employee in automobile collision held not re

sult of serious and willful misconduct of valves reground, but after repeated efforts to

foreman. remedy these defects the plaintiff sold the

Injury to employee of baking company in truck and brought this action in contract

automobile collision held under evidence not for damages.

result of serious and willful misconduct of The rights of the parties depend upon the route foreman directed to instruct employee as written contract which expressly abrogates to business of running route, so as to auall previous negotiations, and states that “no thorize recovery of double compensation unmodification shall be binding upon either der G. L. c. 152, § 28, though collision was reparty unless in writing

*sult of violation of chapter 90, $$ 14, 17. accepted and agreed to by the purchaser," 2. Master and servant am 387—“Negligence" and approved by an executive officer of the

and serious “willful misconduct" distin. company. Will M. Kinnard Co. y. Cutter, guished. Tower Co., 159 Mass. 391, 34 N. E. 460. The "Negligence" and serious “willful misconmaterial provision, however, is the "guar- duct” are different in kind, latter involving anty," whereby the company guarantees all conduct of quasi criminal nature, intentional doparts of trucks against defective material ing of something either with knowledge that and workmanship for a period of ninety days it is likely to result in serious injury or with

wanton and reckless disregard of probable confrom date of delivery "to the extent that

sequences. they will furnish free of charge f. o. b. fac

(Ed. Note.-For other definitions, see Words tory new parts in exchange for defective and Phrases, First and Second Series, Willful parts provided said defective parts are re- Misconduct.] turned to the factory charges prepaid. This guaranty does not apply to tires, electrical Appeal from Superior Court, Suffolk Counequipment or other accessories not manu

ty. factured by the company, nor to damages Proceeding under Workmen's Compensanor breakages resulting from wear or tear, tion Act for double compensation under G. accidents or misuse."

L., c. 152, $ 28, by Edmund Q. Durgin, claimThe plaintiff bases his right to recover ant, opposed by the Grocers' Baking Comsolely on the ground, that the "guaranty' pany, employer, and the Employers' Indemconstitutes an express warranty. But there nity Corporation, insurer. Denial of award is no afirmation or representation of the by single member of Industrial Accident quality of the materials or condition of the Board was affirmed by the superior court, truck; nor did the defendant promise that and claimant appeals. Affirmed. it could be satisfactorily operated. If the

J. K. Berry, of Boston, for appellant. language implies that parts of the truck

L. H. Peters, of West Medford, and J. H. when it was used might show defects, the Baldwin, of Boston, for appellee insurer. defendant undertook only to furnish free of charge new parts in exchange for defective

CROSBY, J. This is a proceeding brought parts when returned to the factory, charges by an employee for double compensation unprepaid, within ninety days from the date der G. L. c. 152, $ 28, on the ground that he of delivery. Henshaw v. Robins, 9 Metc. 83,

was injured by reason of the serious and 88, 43 Am. Dec. 367; Glackin v. Bennett, willful misconduct of a person regularly in226 Mass. 316, 115 N. E. 490; Ireland V. trusted with and exercising powers of superLouis K. Liggett Co., 243 Mass, 243, 246, 137 intendence. The employee was injured on N. E. 371; G. L. c. 106, § 14. The case of September 11, 1922, while in the employ of American Locomotive Co. v. National Gro- the Grocers' Baking Company, and has since cery Co., 226 Mass. 314, 115 N. E. 404, L. been paid compensation for total incapacity R. A. 1917D, 1125, on which the plaintiff re for work. It is the contention of the claimlies, was an action against the buyer for ant that his injuries were received by rearepairs made by the seller to a motor truck son of the serious and willful misconduct of

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

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(146 N.E.) one Bailey, another employee of the Grocers', two streets before turning to the left; and Baking Company, and that Bailey was regu- that Bailey was operating his machine at larly intrusted with and was exercising pow. such a rate of speed that he was not able ers of superintendence at the time of the ac- to control it after the first collision. It is cident.

found that the claimant's injuries resulted The single member of the Industrial Acci- from violation by Bailey of the statutes regdent Board found that Bailey at the time ulating the operation of motor vehicles, and the claimant was injured was a "‘route fore by the negligence of the operator of the car man' employed by the subscriber, that it of the Merchants' Towel & Supply Company, was Bailey's duty to instruct Durgin 'as to but that such violations were not gross and the business of running the route, the prices wanton; that Bailey did not intend to injure of bread and how to make out receipts and Durgin and did not grossly, wantonly or reckbills and the general business of running a lessly expose him to injury. It is found as a wholesale route'"; that on the day of the ac- fact that Bailey's conduct in the operation of cident Bailey was "breaking in” Durgin on a the automobile did not constitute anything route in Lynn; that they drove to Lynn in more than ordinary negligence, and on that an automobile truck owned by the subscriber ground the claim for double compensation and operated by Bailey; that after going over was dismissed. The Industrial Accident the route and making known to Durgin the Board on review affirmed and adopted the customers and instructing him as to his du- findings of the single member. ties, 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 ers of superintendence at the time of the achim none; and that Bailey was not exercis-cident was fully justified. It could have ing the power of superintendence over Dur- been found that he was directed merely to ingin at the time of the accident.

struct the claimant respecting the nature of The single member also found that, while the work he had been employed to perform ; the truck, still operated by Bailey with Dur- that Durgin was familiar with the operation gin on the seat beside him, was on the way of the automobile, and received no instrucback to the subscriber's plant, in Roxbury, tions of that nature and needed none; and and was proceeding along Chelsea street, in that the relation between Bailey and the Charlestown, and had reached the intersec- claimant was merely that of fellow employtion of that street with Vine street, it came Buckley v. Dow Portable Electric Co., into collision with an automobile truck of 209 Mass. 152, 154, 95 N. E. 222. If it be asthe Merchants' Towel & Supply Company as sumed that the conduct of Bailey in the opit came out of Vine street; that thereafter eration of the automobile was negligent, that Bailey lost control, of his machine and it alone is not sufficient to entitle the claim"shot diagonally across the street to the left ant to double compensation under the statand collided with an automobile coming in ute. Negligence and serious and willful misthe opposite direction"; that Durgin was conduct are entirely different in kind. The crushed between the last-named automobile latter “involves conduct of a quasi criminal and that of the subscriber.

nature, the intentional doing of something Although the single member found that either with the knowledge that it is likely to Bailey violated G. L. C. 90, 88 14, 17, relat- result in serious injury or with a wanton ing to the operation of motor vehicles on and reckless disregard of its probable conpublic ways, he also found that the claim

sequences." Burns' Case, 218 Mass. 8, 10, ant's injuries were caused by the combined 105 N. E. 601, 602 (Ann. Cas. 1916A, 787); negligence of Bailey and the driver of the Riley's Case, 227 Mass. 55, 56, 57, 116 N. machine owned by the Merchants' Towel & E. 259; Beckles' Case, 230 Mass. 272, 274, Supply Company; that the negligence of the 119 N. E. 653; Prondecka v. Turners Falls latter consisted in attempting to turn into Power & Electric Co., 241 Mass. 100, 102, Chelsea street at a sharp angle instead of 134 N. E. 352. keeping to the right of the centers of the Decree aflirmed.

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than one year after giving of bond, motion to FINANCE CORPORATION OF NEW ENG- dismiss should have been denied; but no benLAND, Inc., y. PARKER et al.

efit to plaintiff could result from sustaining (two cases.)

appeal when plea in abatement was properly

sustained, and appeal will not be sustained. (Supreme Judicial Court of Massachusetts. Suffolk. Feb. 26, 1925.)

8. Trial 260(1)-Error not predicated on

refusal of requests substance of which was 1. Executors and administrators Oma 441-Ap given. pearance by executor held unnecessary and

Error cannot be predicated on refusal of not to subject person to jurisdiction nor waiver of defects in process.

requests, substance of which was given in

charge. Where defendant's attorney on February 12, suggested death of defendant and plaintiff 9. Trial em 295(5)-Charge that, if you give thereupon prayed order to compel executor any value at all it is value, not misleading. to appear and defend, appearance of executor

In action against indorsers of notes, on March 13 was unnecessary in view of St. charge that "if you give any value at all it 1917, c. 101, and rule 7 of superior court and, is value” held not misleading, when given to being filed before time allowed by rules for aid in explaining that anything of value confiling motions to dismiss and pleas in abate- stituted value required for consideration by ment bad expired, did not subject his person G. L. c. 107, § 48. to court's jurisdiction nor waive defects in citation.

10. Bills and notes 256-Failure to take 2. Executors and administrators 441-Gen

proper steps to take judgment against one

indorser did not release subsequent indorser. eral appearance of executor held not waiver of special defenses of limitation.

As holder could under G. L. c. 231, § 4,

sue in one action all or any indorsers of note, Where defendant's death was suggested and plaintiff prayed order to compel executor plaintiff's failure to take proper steps to se

cure judgment against prior indorser or her to appear and defend, it cannot be assumed that executor intended by general appearance

estate did not discharge second indorser. to waive special limitations of G. L. c. 197, § 9, 11. Bills and notes w256-Payee could refuse and G. L. c. 228, § 5, latter forbidding issu or cease to sue any party. ance of citation after one year,

Payee of note could not release maker or 3. Limitation of actions Om 175—Executor prior indorser without releasing subsequent cannot waive defenses of limitation.

parties, since release would defeat right of latExecutors cannot waive G. L. c. 197, § 9, ter to have recourse to prior party, but so and G. L. c. 228, 5, requiring actions to be long as payee did not impair right of subsebrought within year of qualification and for- quent party it could cease to sue or refuse to bidding issuance of citation after expiration sue any party. thereof; it being their duty to insist on them. 12. Bills and notes no 256–Loss of attach4. Abatement and revival Ow73–After abate. ment of real estate of prior indorser held

ment of action by death of defendant, plain not negligent loss of security which subsetiff may revive it and summon executor to quent indorser was entitled to have predefend.

served. In view of G. L. c. 231, § 4, and G. L. C. In action against indorsers of notes, loss of 228, $$ 4, 5, 7, on death of defendant action attachment of prior indorser's real estate unagainst him abates, but plaintiff by, taking der G. L. c. 231, § 116, by delay in citing her proper steps at proper time may revive it and executor after her death, was not negligent summon executor to defend.

loss of security which second indorser was en

titled to have preserved for his benefit. 5. Abatement and revival Ow74(1)-Sustain

ing plea in abatement to citation to execu 13. Bills and notes En 256If action against tor to appear and defend held proper.

estate of prior indorser was barred by limWhere defendant died pending action and itation, it was damnum absque injuria to citation to executor under G. L. c. 228, $$ 4,

subsequent indorser. 5, 7, was not issued within one year, it was In action against indorsers of note where issued thereafter improvidently and in viola- prior indorser's death was suggested and action of statute, and there was no error in sus tion against her executor was barred by limita. taining executor's plea in abatement.

tions, G. L. c. 197, § 9, and G. L. c. 228, 6. Dismissal and nonsuit 73–Motion to 4-7, it was damnum absque injuria as to secdismiss raises only matter apparent on rec

ond indorser. ord.

Exceptions and Appeal from Superior Technically motion to dismiss raises only

Court, Suffolk County; Marcus Morton, matter apparent on record.

Judge. 7. Appeal and error 1061 (2)— Appeal from order of dismissal not sustained, though or.

Action of contract by the Finance Corporader erroneous when plea of abatement sus- tion of New England, Inc., against Charles tained.

H. Parker, executor, and another, to recover Where record did not disclose dates show- from defendants as indorsers of note. From ing that citation to executor was issued more order sustaining plea in abatement of de

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

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(146 N.E.) fendant Parker, plaintiff excepts and ap- 1 both attorneys, filed an answer which dispeals, and from verdict for plaintiff against closed that he did not waive but insisted updefendant Albert D. Sherman, latter ex- on his motion to dismiss and plea in abatecepts. Exceptions overruled, and judgment ment, and which pleaded the same facts in entered on verdict.

defense, together with the short statute of G. S. Ryan, of Boston, for plaintiff.

limitations, G. L. C. 197, § 9, and G. L. C. 228, C. F. Eldredge, of Boston, for defendants. / 88 4–7, and other matters to the merits.

[1] The motion to dismiss and the plea in WAIT, J. This is an action upon a prom- abatement were heard together on March issory note, brought by the payee against 24, 1924, evidence being introduced; and the two of nine indorsers, all of whom signed the judge after consideration, on March 25, susnote before delivery for the accommodation tained the plea in abatement. He also inof the maker. The name of the defendant dorsed "allowed” on the motion to dismiss. Mrs. Parker preceded that of Sherman upon The plaintiff appealed from these rulings and the note. No security for the payment other orders, and excepted thereto as well. He than the indorsements was received by the contends that the defenses set up in the plea payee. On February 6, 1922, the plaintiff and the motion to dismiss are waived by the brought an action against Mrs. Parker and general appearance filed March 13, and are Mr. Sherman and, on the writ, attached real no longer open. estate of considerable value belonging to

There would have been more force in this Mrs. Parker. The defendants duly appeared contention before the enactment of St. 1917, and made answer. Mrs. Parker died Novem.c. 101. ber 27, 1922; and on February 11, 1924, the

The occasion for the entry of an appearattorney who had appeared and answered ance in an action at law in the Superior for her in March of 1922, filed a suggestion Court, apart and distinct from a pleading of her death and of the appointment on in the action, arose from the statutory reJanuary 11, 1923, of Charles H. Parker as quirement that a default should be entered her executor. The next day the plaintiff by the clerk against any defendant who did filed a motion which recited the death and not, within a specified number of days after appointment, and which prayed order to com- the return day named in the precept sum. pel the executor to appear and defend. The moning him into court, appear in answer to motion did not set out any dates on which the precept. This period for many years the executor gave bond and filed notice of his was ten days. St. 1852, c. 312, 8 10; St. qualification. The court on the same day, 1870, c. 68; P. S. c. 167, § 47; R. L. c. 173, February 12, 1924, ordered notice to issue 8 54. The rules of the court made no provireturnable March 3, 1924. The executor sion fixing the time of appearance for a degave bond on January 11, gave notice of his fendant, at law, but they did require that appointment on January 24, and filed a ffi- demurrers, pleas in abatement and motions davit of notice on January 29, 1923; all to dismiss should be filed within the time almore than one year before the issue of the lowed for appearance, and they allowed a order of notice or citation to appear and de- longer time for filing answers to the merits. fend. On March 13, 1924, the attorney who Consequently, a party who wished to delay had filed the suggestion of death, filed an ap- answering until the end of the full time pearance for Charles H. Parker, executor. allowed by the rules, in order to avoid beOn March 17, another attorney filed a special ing defaulted before the time for answer had appearance for the executor, and both attor- expired, was compelled to enter an appear. neys joined in filing a motion by the execu- ance within the time fixed by the statute. tor to dismiss the citation to appear and de- This appearance, unless limited to some spefend on the ground that more than a year cial grounds of objection thereto, subjected having elapsed after the giving bond by the his person to the jurisdiction of the court, executor and before the issue of the citation, and waived all defects in the process by the issue was improper and beyond the ju- which he was summoned or in its service, if risdiction of the court. At the same time the court had jurisdiction over the subject they filed a plea in abatement which set out matter of the litigation. Brown v. Webber, the same facts in regard to the death of Mrs. 6 Cush. 560; Gahm v. Wallace, 206 Mass. Parker, and the appointment, qualification, 39, 91 N. E. 1002; Cheshire National Bank giving of bond, etc., of the executor; alleged v. Jaynes, 224 Mass. 14, 112 N. E. 500; Gray that the summons or citation was granted | v. Thrasher, 104 Mass. 373. 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 executor also on March 19, 1924, by 1917, which fixed the same date for a default

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if no appearance had been entered. They 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 After the action as against Mrs. Parker rules for filing motions to dismiss and pleas and her estate had been abated, then plainin abatement had expired, and as nothing tiff went on to trial against defendant Sherappears to indicate that the plaintiff did, or

The case is, also, before us upon exfailed to do, anything to his prejudice in re- ceptions claimed by that defendant at the liance on that appearance, it should not be trial. At the close of the evidence the degiven effect to defeat them.

fendant presented eight requests for instruc[2, 3] It is not to be assumed that the ex- tions, and claimed exceptions to the refusal ecutor intended by a general appearance to to give them. He also excepted to a portion waive the defense of the special statutes of of the charge. limitations which require action to be [8] The substance of the first four rebrought within a year after his qualification, quests, so far as they stated sound law, was G. L. C. 197, § 9, and forbid the issue of a given in the charge to the jury. citation after expiration of that year, G. L. C. [9] There was no error in the portion of 228, § 5. An executor has no right to waive the charge excepted to: "If you give any these statutes. It is his duty to insist upon value at all it is value." The words in their them. Stebbins v. Scott, 172 Mass. 356, 362, context could not mislead. They were used 52 N. E. 535, and cases cited; Bartlett v. by the judge to aid in explaining that any Tufts, 241 Mass. 96, 134 N. E. 630; Beal v. thing of value constitutes the value which is Lynch, 242 Mass. 65, 136 N. E. 172.

required for a consideration by G. L. c. 107, [4, 5] Upon the death of Mrs. Parker, the $ 48: “Value is any consideration sufficient action as against her abated; but the plain- to support a simple contract." tiff by taking proper steps at the proper

[10] The requests five to eight inclusive, time could revive it and summon the execu- sought in varied language the instruction, tor to defend in this action. G. L. c. 231, in substance, that if, by its failure to take $ 4; G. L. C. 228, $$ 4, 5, 7; Colt v. Learned, proper steps, the plaintiff had lost the power 133 Mass. 409. When a party dies pending inal defendant, Mrs. Parker, or her estate,

to secure a judgment against the other orig. the action, G. L. C. 228, § 4, enacts that a

this constituted a release of security to which suggestion of the death shall be made, and, the defendant Sherman, as a surety with unless the executor appears voluntarily, a

Mrs. Parker, was entitled, and thereby discitation may be taken out to compel him to charged Sherman. appear. Section 5, however, provides that

The refusal was right. The plaintiff was “it shall not issue after the expiration of one at liberty to sue in one action all or any of year from the time such executor

the indorsers to compel payment of the note. has given bond, if he has given the notice of G. L. c. 231, $ 4. There was no security held his appointment as required by law.” This by the plaintiff which it was bound to apply section clearly is applicable here. The ex- before seeking payment from any indorser. ecutor did not appear voluntarily within the The only duty which the plaintiff as payee year, thus distinguishing this case from owed to any indorser, before payment by Garber v. Hirsh, 225 Mass. 422, 114 N. E. that indorser, was that it should not defeat 670. The proper steps were not taken by the or affect injuriously the rights of the indors. plaintiff. The citation was issued improviser against the maker and prior indorsers. dently and in violation of the statute.

The plaintiff, if it began action against all or The judge was clearly right in sustaining any of the parties primarily liable to it on the plea in abatement.

the note, was not bound to pursue the action [6] Technically the motion to dismiss rais- to judgment. es only matter apparent on the record. [11] It could not release the maker or any Crosby v. Harrison, 116 Mass. 114.

prior indorser without thereby releasing sub[7] The record did not disclose the dates sequent parties, because of such a release which established that the citation was is- it would defeat the right of such subsequent sued more than one year after the giving of parties to have recourse to the prior party; the bond. In strict law the motion, treated but, so long as it did not impair the right of as a motion to dismiss, should have been the subsequent party, it could, at any modenied. The judge, however, seems to have ment, cease to sue, or refuse to sue, any par treated it as a motion ancillary to the plea ty. Hunt v. Bridgham, 2 Pick. 581, 584, 13 in abatement and designed to vacate the Am. Dec. 458; Lewis v. Blume, 226 Mass improvident order which allowed the cita- 505, 508, 116 N. E. 271; Dunn v. Lerman, tion to issue. No real benefit to the plaintiff | 241 Mass. 555, 557, 135 N. E. 604.


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