« ForrigeFortsett »
(146 N. E.) made in 1919 consisted almost entirely in the , and changes thereby made as compared with deletion of certain passages, some because the forms of these stories previously printused by her in other books published by her ed in the newspapers and magazines constiafter 1912, and others because regarded by tuted a definite property right in the plainher as objectionable on literary grounds. tiff. The defendant had no property right in Little, if anything, was added to them. them. Its possession of the typewritten cop
Thus it appears that there were three ies conferred no license or privilege to pubforms of most of the stories in Further lish them. It held them wholly subject to Chronicles of Avonlea : (1) The original | the exclusive title of the plaintiff to the parts form in which they were written and printed of the stories never before printed, even if in newspaper and magazine; (2) the revision not copyrighted. Baker v. Libbie, 210 Mass. made by the author in 1912 in preparation 599, 97 N. E. 109, 37 L. R. A. (N. S.) 944, for the publication of Chronicles of Avonlea, Ann. Cas. 1912D, 551. Such omission seems of which at the time of the 1919 contract strange, if persons, familiar as these parties the defendant had the only copies; and (3) were with property in literary productions, the revision made by the author in 1919 pur- had intended the one to transfer and the othsuant to the contract of that year.
er to acquire title to the 1912 revision of One element of market value in the stories the stories. Closer analysis of the contract of 1912 was the reference contained in sev- | fails to disclose a purpose to transfer title eral of them to Anne Shirley, the character | to, or to allow the defendant to publish, the already mentioned, who had attracted much 1912 revision. The first recital of the confavorable public attention in “Anne of Green tract bearing on this matter is to the effect Gables,” the most successful of the books of that the plaintiff has “written and heretothe plaintiff published by the defendant. fore submitted” to the defendant “sixteen The presence of that element was much short stories which have been published in urged by the defendant in correspondence sundry newspapers and magazines.” A list with the plaintiff prior to bringing out the follows of the titles of the stories and the book of short stories in 1912. Some of the names and dates of the newspapers and magunpublished stories then submitted contained azines in which they have been printed. references to Anne Shirley. These references This, standing alone without its context, is constituted one of the chief motives impell- at best equivocal. Reference may be made ing the defendant, in publishing Further to the form "submitted” or to the form “pubChronicles of Avonlea, to use the 1912 copies lished." The minuteness of description of instead of those sent by the plaintiff in 1919. the original publication of each story would The original newspaper and magazine stor- have been unnecessary verbiage if it were inies and the revision of 1919 contained no ref-tended to transfer title to the revisions suberence to Anne, as the defendant knew. mitted to the defendant, all of which were
The sixteen stories in the manuscript form known by it to be in its possession by exact as revised by the plaintiff in 1912 and then copies of those revisions. The next two refsubmitted to the defendant but not used by erences are to "said stories" in connection it in Chronicles of Avonlea, had never been with copyright and to the desire of the depublished before the 1919 contract. As stat- fendant to publish a book "made up of all or ed by the judge in his decision:
part of said stories." These stand on the "They represented
same footing as the first reference. considerable
Then very amount of labor, were admittedly superior in comes the clause of transfer of title, wherepoint of literary excellence to the original by the plaintiff "assigns” to the defendant newspaper stories which were the plaintiff's “such rights as she may have in the said early work and were immature and crude in stories.". This clause must be read in concomparison.' They contained much new ma- junction, not only with what precedes, but terial which the defendant considered could be with the paragraph immediately following. copyrighted when the original stories could not That paragraph obligates the plaintiff on her be."
return to Canada to search for "fourteen of The defendant in using the 1912 revision the sixteen stories aforesaid" and if found had these factors in mind.
to send “those manuscripts which contain her  The parties drafted their contract un- revisions of said stories, otherwise copies reder skilled professional advice in the light vised or not revised, as she may see fit.” Here of all this expert knowledge of intelligent is direct reference to the 1912 revision of the persons respecting a matter of financial and stories. A vain obligation and a futile labor literary importance to each of them. These were thus imposed on the plaintiff if the parconditions warrant the implication that ties were contracting with reference to a reviwords, clauses and sentences were used with sion of stories at that moment in the possesappreciation of their exact meaning and their sion of the defendant. The implication of this precise application to the subject-matter. part of the contract is that the source from
 It is significant that the 1912 revision which the defendant was to get its material of the stories is not made the subject of defi- for publication was that which was to be nite transfer in the contract. The additions sent it by the plaintiff after her return from
Canada—the original manuscripts if she , of profits was erroneous, if the defendant
HAMPE V. ELIA et al.
Suffolk. Feb. 27, 1925.) option reserved to her by the contract of re vising or not revising before sending them 1. Easements Col - How easement of light to the defendant, was the original publica
and air acquired, stated. tion in newspapers and magazines. That
Easement of light and air can be acquired was a quite different agreement from one plication where light or air is actually and
only by express grant, by covenant, or by imgiving unconditional permission to the de
absolutely necessary. fendant to publish copies of the 1912 revision in the possession of the defendant. The 2. Landlord and tenant 124(1) - Grant of
premises held not to carry right to enjoy contract prohibits the defendant strictly, in
conveniences in lessor's land which were not making permissible slight changes in or
of strict necessity. amendments to the stories, from bringing Anne Shirley into any story where she did tenances or of privileges and conveniences did
Lease of premises without grant of appurnot appear in the story as originally pub- not carry right to enjoy conveniences in land of lished or as revised by the plaintiff. That lessor which were apparent but were not of character did not appear in any of the origi- strict necessity. nal publications of these stories, nor in any 3. Easements en 19–Tenant held not to have of the 1919 revisions, but did appear in some
easement of light and air in landlord's ad. of the 1912 revisions. This limitation would
joining premises. be bootless if the defendant could use a copy
Where lease of premises was not with apof the 1912 revision coming from its own purtenances or with rights and privileges convault rather than such originals or copies venient or essential to beneficial use and there as the plaintiff might be able to find and send was no absolute or reasonable necessity that
light and air should continue to pass unobto the defendant.
structed through movable window on leased The frame of the contract as a whole, its premises, tenant had no easement of light and carefully phrased language, its references to air in lessor's adjoining premises. certain manuscripts and its omission to refer specifically to the 1912 revision of manu- Appeal from Superior Court, Suffolk Counscripts, in the light of the knowledge of the ty; Marcus Morton, Judge. parties and the circumstances in which they
Bill by Henry Hampe against Satir Elia approached the execution of the contract, and another to enjoin defendants from buildforbid the interpretation that the 1912 revi- ing structure on passageway and open area sion of manuscript stories was transferred adjoining premises demised to plaintiff. Deto the defendant, or that it thereby acquired cree for defendants, and plaintiff appeals. the right to publish them.
Affirmed. There was no error of law in ruling in effect that the form of the stories sent by the
G. J. Ganer, of Boston, for appellant. plaintiff to the defendant in 1919 was a com
G. R. Farnum, of Boston, for appellees. pliance with the obligation resting on her under the contract.
PIERCE, J. Without any restriction as There is no occasion to disturb the ruling to use, the defendants' grantor leased the that the plaintiff has not established a right premises numbered 791 Harrison avenue to to damages.
the plaintiff for a period of five years from The contract in its entirety in the light of February 1, 1921, with an option of renewal. the attendant facts restricted the defendant The grant of the described premises is not to the publication of the stories in the form with the appurtenances or with all rights sent to it by the plaintiff in 1919. It is not and privileges thereto belonging which are ambiguous. The rights of the plaintiff un convenient or essential to the beneficial use der it must be enforced according to its and enjoyment thereof, or any words equivterms.
alent or similar thereto. The plaintiff seasonably asserted her rights The premises consist of a room on the under the contract and gave notice of her in- street floor, on the northwesterly side of tention to hold the defendant responsible for Harrison avenue, which is twenty feet what she regarded its breach of the contract. square and about eight feet in height. The
It rightly has not been contended that the entrance is in front and there is no other order for injunction and for taking account means of entrance or exit.
The room has
(146 N.E.) plate glass, stationary' windows on each | Guggenheim, 106 Mass. 201, 205, 8 Am. Rep. side of the entrance, which face Harrison 322; Keats v. Hugo, 115 Mass. 204, 15 Am. avenue; there are on the sides of the en- Rep. 80; Case v. Minot, 158 Mass. 577, 33 trance to the door stationary windows of N. E. 700, 22 L. R. A, 536; Lipsky v. Heller. plate glass. Over the door there is a mov- 199 Mass. 310, 85 N. E. 453; Tidd v. Fifty able transom four feet by ten and one-half | Associates, 238 Mass, 421, 431, 131 N. E. 77. inches. The door is set back from the street The grant of these premises, without a grant line about two feet and has two glass, sta- of the appurtenances or of the privileges tionary panels forty-six inches high by and conveniences, did not carry the right to thirteen inches wide. Overlooking the ad- enjoy conveniences in the land of the lessor jacent premises of the defendant there is which were apparent but were not of "strict now, and was when the lease was executed, necessity." Buss v. Dyer, 125 Mass, 287, a window four feet nine inches high by thir- | 291. The case of Raynes v. Stevens, 219 ty-six inches wide with two movable sashes Mass. 556; 107 N. E. 398, and the case of of equal size. This window is located in Doyle v. Lord, 64 N. Y. 432, 21 Am. Rep. the northeasterly wall three feet back of the 629, rest largely upon terms in the grant street line. Over this window is a sign af- which are not present in the lease now unfixed to the outside wall of the building with der consideration. The findings of the masthe plaintiff's name printed thereon and the ter above quoted go no further than to show word “Tailor” below, which sign has been that the room would be more suitable as a so located for about fifteen years. There is place of doing tailoring work, and financially no window or door in the rear brick wall more valuable as leasehold property, should or in the southwesterly wall of the room. the conditions of light and air continue than Whatever light and air flow into the store would be the situation if the window were comes from the front of the store and from closed. The master does not find, and could the movable window.
not find properly on the evidence, that when There is an open areaway between the the lease was executed without restriction northeasterly wall of the leased premises as to the use of the premises there was an and a public alley or passageway. The de- absolute or reasonable necessity that light fendants propose to build and now have in and air should continue to pass unobstructed process of erection on this areaway a one-sto- by any act of the lessor or of his grantee ry brick building, the roof of which, when con- through the movable window to the leased structed, will be above the top of the side premises. "Raynes v. Stevens, supra. of the movable window. The face of the Decree affirmed. front wall of the proposed building will come flush with the inside line of the sidewalk and the rear wall will be parallel to and an extension of the rear wall of the building in
BRODE'S CASE, which the plaintiff's shop is located. The
BRODE v. F. K. WILLIAMS CO. face of the southeasterly side wall of the proposed building will be on the line of the (Supreme Judicial Court of Massachusetts. lot and entirely block up said movable win
Suffolk. Feb. 27, 1925.) dow of the plaintiff's shop, so that it will 1. Master and servant 419-Finding by fully obstruct the admission of both light member of Industrial Accident Board, from and air into the room used by the plaintiff whose decision no review is asked, is final. as a tailor shop. The master to whom the
Finding by member of Industrial Accident case was referred found that over this area- Board, not reserving rights of parties, under way light and air flow into the movable win- G. L. C. 152, § 12, from whose decision no redow, and that “this window is necessary to view is asked, that injury arose out of and a substantial extent to the beneficial enjoy. in course of employment, is final. ment of the tailor shop as conducted by the 2. Master and servant m419-Finding of sin. plaintiff for both light and air and also for
gle member of Industrial Accident Board ventilating purposes”; he also found that
that incapacity was at end held conclusive. “while blocking up of said side window may
Finding of single member of Industrial not make the premises wholly unsuitable for Accident Board that incapacity ended in Septhe purposes of the plaintiff, nevertheless, tember, 1923, where no claim for review was said premises will be appreciably of less requested, stands as other finding of fact, and value as and for a tailor shop as the same is conclusive on parties, and law of case, unis used and operated by the plaintiff than if less reviewed by board. allowed to be and remain as they now are.” [1-3] It is settled in this commonwealth
Appeal from Superior Court, Suffolk Counthat an easement of light and air can be ty; O'Connell, Judge. acquired only by express grant, by covenant, Proceeding under the Workmen's Compenor by implication where the light or air is sation Act by Gussie Brode, claimant, opactually and absolutely necessary. Royce v. posed by the F. K. Williams Company, em
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
ployer, and the Travelers' Insurance Com-, ties were open under the statute, and could pany, insurer. On finding of single member be reviewed. G. L. c. 152, § 12. It was said of the Industrial Accident Board, decree for in Hunnewell's Case, 220 Mass. 351, 353, 107 compensation was entered in superior court, N. E. 934, 935: and the insurer appeals. Reversed, and de
“The insurer rightly contends that the find. cree entered for insurer.
ing of the arbitration committee, no review L. C. Doyle, of Boston, for Travelers' all matters covered by it and that it cannot
having been requested, bound the parties as to Ins. Co.
be reviewed." Joseph B. Cowett, of Springfield, for employee.
The finding in that case, however, was not
construed to be a final decision ending all CARROLL, J. This is a proceeding under payments under the act. A finding by a the Workmen's Compensation Act (G. L. c. member of the Industrial Accident Board, 152). The employee was injured August 23, from whose decision no review is asked, that 1922, her hand being caught in a press. Four the injury arose out of and in the course of of her fingers were fractured. She was paid the employment, is final. The question har. compensation at the rate of $7 a week. In ing been settled, it cannot be reviewed by September, 1923, at the request of the insurer another member of the board. Hurley's to discontinue payments, there was a hearing Case, 235 Mass. 387, 126 N. E. 775. See before a member of the Industrial Accident Kareske’s Case, 250 Mass. 145 N. E. 301; Board. It was decided at this hearing that Frizzi's Case, 237 Mass. 460, 130 N. E. 95. she was able to do her former work, and if The question now under consideration was unwilling to return to the same employment, not discussed or considered in Hudson's Case, she was able to earn the same amount of 244 Mass. 330, 138 N. E. 235. wages elsewhere. "On all the evidence, I  If the single member found that all infind that the employee is able to do her for- capacity was at an end in September, 1923, mer work, if she cares to apply herself, and as no claim for review was requested the the application of the insurer to discontinue decision stands like any other finding of fact, compensation payments is granted as of date and is conclusive upon the parties, unless re. of filing of this decision, September 28, 1923." viewed by the board. When the employee By this decision, specific compensation for came before the single member in 1923, at the period of 12 weeks, for the loss of the the hearing on the petition of the insurer to use of the “terminal phalange of her middle discontinue compensation payments, the right finger," was ordered. No claim for re- member found that there was a "permanent view was filed.
stiffness of the terminal phalange of the midIn January, 1924, a hearing was held be dle finger" (for which, as we construe the fore another member of the Industrial Acci- finding, specific compensation was ordered to dent Board. He found that the employee was be paid); that “outside of that, her hand is entitled to compensation from September 28, in fairly good condition after such an in1923, to November 1, 1923, the rights of the jury”; that although the employee testified parties being reserved under G. L. C. 152, 8 she was unable to operate the press, no rea12. No claim for review was filed.
son was shown indicating her inability to do In March, 1924, there was another hearing this work; that she was able to earn the before a third member of the board. It was amount of her former wages at other work; decided that compensation was due the em- and, finally, that “on all the evidence ployee from January 15, 1924, partial com
the employee is able to do her forpensation to continue in accordance with the mer work, if she cares to apply herself." provisions of the act. On review, this find. The application to discontinue payments was ing of the single member was affirmed. A granted without any reservation of the emidecree was entered in the superior court for ployee's rights under the act. As we con the employee, and the insurer appealed. strue this decision, it was a final determina
 If the finding of the member at the tion that all incapacity was ended, that the hearing in September, 1923, amounted to a employee was able to work, that she was no decision that all incapacity to labor, total longer prevented from engaging in her em. and partial, had ceased at that time, no claim ployment by reason of her injury. No claim for review having been filed, and the rights for review being asked for, the decision must of the parties not having been reserved un- stand. It was the law of the case, and the der G. L. C. 152, § 12, the parties are bound parties are bound by it. by the decision. It is final and cannot be If the compensation of the employee is endsubsequently reviewed under the machinery ed by the decision of the member of the provided in the workmen's compensation act. board, the employee, if he desires, may have If, on the other hand, that finding did not the case reviewed by the Industrial Accident mean that all compensation was to cease, or Board; and if compensation is discontinued, that all disability arising from the injury and there is no finding that all incapacity is ended on September 28, 1923, then the deci. ended, or if there is such a finding and the sion was not final and the rights of the par rights of the parties are left open under the
(146 N.E.) act, the decision of the member may be re- 15. Indictment and information 202(2)viewed. But when, as in the case at bar, Noncompliance with constitutional provision there is a finding that incapacity to labor as to name in which prosecution shall be had ceased, which must be implied from the
carried on available on motion in arrest of finding that she was able to do her former
judgment or on writ of error. work if she cared to apply herself, and there
Noncompliance with Const. art. 6, $ 33, prois no request for a review to the full board, viding that all prosecutions shall be carried on and the rights of the parties are not kept people of the state of Illinois,” and conclude
"in the name and by the authority of the open, the decision on this point is final. This
"against the peace and dignity of the same," question the insurer could argue at the hear- is available on motion in arrest of judgment or ing before the Industrial Accident Board. on writ of error. It follows that the decree of the superior court must be reversed and a decree entered 6. Action Cm 16–Title given proceeding cannot
change its nature or character. for the insurer.
Title given proceeding cannot change its So ordered.
nature or character.
7. Intoxicating liquors am 274-Bill of com(316 Ill. 77)
plaint in suit to enjoin maintenance of liq
uor nuisance filed in name of state held suffi. STATE V. FROELICH. (No. 16447.) cient.
In action to enjoin maintenance of liquor (Supreme Court of Illinois. Feb. 17, 1925.) nuisance, bill of complaint filed in the name of
the state of Illinois held sufficient under Pro1. Intoxicating liquors ww258—Proceeding to hibition Act, $ 22.
restrain maintenance of liquor nuisance is
8. Intoxicating liquors aww279—Petition in con-
Institution of contempt proceedings based
on violation of injunction against maintenance 2. Intoxicating liquors 279–Proceeding to of liquor nuisance, by verified petition in the
punish for contempt for violation of injunc- name of the people, held sufficient under Prohi-
Proceeding to punish for contempt for 9. Contempt Eww30—Power to punish for conviolation of injunction against maintenance of
tempt inherent in court. liquor nuisance, under Prohibition Act, $ 25, is The power of courts to punish for cona civil chancery proceeding, in which the plead-tempt does not depend on constitutional or ings and the character and quantity of proof legislative grant, but is inherent in all courts, required are governed by the rules and prac- as necessary for self-protection, and as an es. tice applicable to other chancery proceedings. sential auxiliary to the administration of the
law. 3. Intoxicating liquors Om279-Constitutional provision as to name in which prosecution 10. Contempt Ew70-Criminal law 163–
Punishment for contempt not bar to prosecu. shall be conducted held inapplicable to pro
tion for same act if criminal offense,
Fine and imprisonment which court is auliquor nuisance.
thorized to impose for a contempt are not in
tended as a punishment for the violation of the Const. art. 6, § 33, providing that all prose; criminal law, and punishment for contempt is cutions shall be carried on "in the name and not a bar to a prosecution for the same act by the authority of the people of the state of lif it also constitutes a criminal offense. Illinois," and conclude "against the peace and dignity of the same,” held inapplicable to pro- 11. Jury Emw 13(21)-Punishment for contempt ceeding to punish for contempt for violation of without jury trial held not violative of Coninjunction against maintenance of liquor nui- stitution. sence, under Prohibition Act, $ 25, being appli- Punishment for contempt for violation of cable merely to prosecutions of a public or crim- injunction against maintenance of liquor nuiinal character, and formal accusation of of-sance, under Probibition Act, $ 25, without trial fenders by presentment or indictment by grand by jury, held not violative of Const. art. 2. jury or by information.
$$ 5, 9, and Const. U. 8. Amends. 5, 6, 4. Indictment and information -28, 32(3), guaranteeing the right to trial by jury. 49, 50—Constitutional provision as to name 12. Intoxicating liquors 279-Defendant in which prosecution shall be carried on, and
could be adjudged in contempt for violation of conclusion, held mandatory.
permanent injunction against maintenance of Const. art. 6, § 33, providing that all prose
liquor nuisance, though given no notice of cutions shall be carried on "in the name and
temporary injunction. by the authority of the people of the state of A defendant permanently enjoined from Illinois,” and conclude "against the peace and maintaining a liquor nuisance, under Prohibidignity of the same,” held mandatory in all tion Act, 22, may be adjudged in contempt Prosecutions to which it is applicable.
for violation of such injunction, though no For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes