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Supreme Judicial Court under the stipula- [ it began to go faster, and kept going faster tion that, if the ruling and direction was until, as one witness described it, it was "gowrong, judgment was to be entered for the ing very fast," and as another witness said, plaintiff for $4,200; otherwise, for defend-"the car was coming down the hill at about ant. Judgment for the plaintiff.

Wm. P. Meehan and Chas. H. Donahue, both of Boston, for plaintiff. Fletcher Ranney, Wesley E. Monk, and Thos. Allen, Jr., all of Boston, for defendant.

MORTON, J. It is not contended that the plaintiff was not rightfully in the street. He was seven years and eight months old at the time of the accident, and for two years had been crossing the tracks four times daily, on his way to and from school, unattended "except that sometimes the neighbors' children went with him," and he was of average intelligence. Neither do we understand the defendant to contend that there was no evidence of negligence on the part of the motorman. His view was unobstructed, and that, together with the speed at which it could be found that he suffered the car to run and his failure to sound the gong or warn the plaintiff until he was only fifteen or twenty feet away from him, warranted a finding that he was negligent. Breen v. Boston Elev. Ry., 211 Mass. 519, 98 N. E. 511.

[1, 2] The question of difficulty is that relating to the plaintiff's due care. But we think that there was evidence warranting a finding in his favor. He was required to exercise only such care as naturally would be expected of a child of his age and experience. He testified in part: That "he started from the curbstone, then got halfway between the first rail and the curbing and looked up and saw [the] car coming down slow, and thought he had a chance to get by. That he walked on to the other rail going down toward Sullivan Square, looked down to see if any cars were coming down, heard the bell ring and looked up the other way and saw a car and tried to get back but couldn't; the car struck him. That when he heard the bell he looked up and was scared. * * * When he first looked up he was halfway between the curbstone and the rail of the track on which cars go out from Sullivan Square. That when at that point he saw the car coming off the bridge, that it was then going slow. That when he looked down toward Sullivan Square he was in the middle of the inbound track, * he got hurt.

the track on which That the bell rang loud when he first heard it. That he then tried to get back; that he took a step back. That he was walking when crossing the street and did not run at all. That when he got halfway over as described, he went a little faster, still walking." There was evidence tending to show that the bridge referred to was upwards of 250 feet away; that the grade from the bridge was a downgrade; that after the car passed the bridge

15 or 16 miles an hour"; and that "after hitting the plaintiff the car went 125 feet or so before it stopped." Bearing in mind that only such care was to be expected of the plaintiff as naturally would be exercised by a child of his age, we think that it cannot be said as matter of law that when he saw the car coming slowly 250 feet away he was not in the exercise of due care in thinking that he could "get by" and in making the attempt. If the car had come slowly all the way it seems pretty plain that he would have got across safely. In O'Toole v. Boston Elev. Ry., 211 Mass. 517, 98 N. E. 510, it was held that an adult seeing a car approaching 300 feet away was not careless in not looking again and in assuming that the car would not run so rapidly as to hit him in crossing the street. It certainly cannot be said that the plaintiff was careless in making the same assumption under similar circumstances. His conduct when he was startled by the ringing of the bell and saw that the car was only a short distance away was such as it could be found naturally might be expected of a child of his age. The case differs from Holian v. Boston Elev. Ry., 194 Mass. 74, 80 N. E. 1, 11 L. R. A. (N. S.) 166, relied on amongst others by the defendant, where the car was only 80 feet away and the plaintiff walked across the street directly in front of it without taking any precautions for her safety. See Breen v. Boston Elev. Ry., 211 Mass. 519, 98 N. E. 511; Purcell v. Boston Elev. Ry., 211 Mass. 79, 97 N. E. 626; McDermott v. Boston Elev. Ry., 184 Mass. 126, 68 N. E. 34, 100 Am. St. Rep. 548; Burns v. Worcester Cons. St. Ry., 193 Mass. 63, 78 N. E. 740.

It follows that in accordance with the terms of the report judgment should be entered for the plaintiff for $4,200. So ordered.

(215 Mass. 263)

SIMONDS v. INTERSTATE LUMBER CO.
(Supreme Judicial Court of Massachusetts.
Middlesex. June 17, 1913.)
MASTER AND SERVANT (§§ 286, 289*)—ACTION
FOR INJURIES-QUESTION FOR JURY.

In a servant's action for injuries from the tipping over upon him of a loaded lumber wagon, held, that the questions of negligence and contributory negligence were, under the evidence, for the jury.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 10101015, 1017-1033, 1036-1042, 1044, 1046-1050, 1089, 1090, 1092-1132; Dec. Dig. §§ 286, 289.*]

Report from Superior Court, Middlesex County; Marcus Morton, Judge.

Action by Charles E. Simonds against the Interstate Lumber Company. Verdict for

plaintiff for $5.000 was set aside by the judge of the superior court, who reported the case to this court; it being agreed, if the ruling was wrong, judgment was to be entered for plaintiff for $5,000. Judgment for plaintiff for $5,000, with interest from the date of the verdict, and costs.

Stebbins, Storer & Burbank and Ernest H. R. Burroughs, all of Boston, for plaintiff. Henry C. Sawyer and Wm. Harold Hitchcock, both of Boston, for defendant.

not in exercise of due care, or which contributed to the accident. In addition to the testimony which was introduced at the trial the jury took a view and had the benefit of such observations as that enabled them to make of the place where the accident occurred. No claim is made that the plaintiff did not do all that he could to avoid the accident when he saw that the wagon began to tip, though the defendant contends that he was negligent in being where he was. We think that the question of the plaintiff's due care was for the jury.

MORTON, J. This is an action of tort to The defendant was bound to furnish the recover for personal injuries received by the plaintiff on September 30, 1910, while in the There was evidence tending to show that the plaintiff with a reasonably safe wagon. defendant's employ, by reason of the tipping perch of the wagon that tipped over was over upon him of a loaded lumber wagon. shorter than that of any other wagon ownThe case was submitted to the jury under ed by the defendant, and that that rendered instructions not objected to by either party. the wagon less stable; that the front springs The jury found for the plaintiff and assessed the damages in the sum of $5,000. The were old and the rear ones new, and that the defendant thereupon requested the court to body of this wagon tipped down forward rule that there was no evidence on which while all the others were level; that the the jury could find a verdict for the plain-with the lower one, as it should have been, upper rocker plate, instead of being flush tiff. The court so ruled and by agreement of parties reported the case to the full court. If the ruling was erroneous, judgment is to be entered for the plaintiff for $5,000 with interest from the date of the verdict, and costs. If correct, judgment is to be entered If correct, judgment is to be entered

for the defendant.

The case is a close one, but we are of opinion that there was evidence of due care on the part of the plaintiff and of negligence

on the part of the defendant.

The plaintiff was an experienced teamster and testified that it was the first time that he had driven the wagon, and that so far as he knew or saw the wagon was all right. The wagon "was loaded a little farther forward" than a wagon would ordinarily be loaded. But it was for the jury to say what effect, if any, that had or should have had on the plaintiff's due care. When the wagon tipped over the plaintiff was on the nigh side, where a teamster usually drives when walking, and he was, so far as appears, driving in the ordinary way in which a teamster drives a horse in the shafts when there is a horse in the lead being driven by another driver. In the present case the nigh side happened to be the down-hill side, but it could not be ruled that for that reason the plaintiff was as matter of law negligent in driving on that side. Moreover there was evidence tending to show that at least a part of the wagon had got over the "six or eight-inch grade" which served for a sidewalk into the field where it was smooth and level when it tipped over. Neither could it be ruled as matter of law that there was anything in the manner in which the plaintiff and the men with him turned and drove across the street into the field where the lumber was to be deposited which showed that the plaintiff and the men with him were

There was

the rocker plates for the king bolt and the
was half an inch back, and that the holes in
king bolt itself were worn, which rendered
the king bolt loose and the wagon liable to
tip or rock from side to side.
tip or rock from side to side.
also evidence tending to show that this
wagon rocked or tipped more than other
when the wagon tipped over the king bolt
wagons belonging to the defendant and that
broke in the place where it was worn. As
tle farther forward" than was common, and
already noted the wagon "was loaded a lit-
it appeared that the other two wagons had
gone safely over the place where this one
cumstances into account, we think that it
tipped over. Taking all the facts and cir-
cident was due to a defective wagon provided
was a question for the jury whether the ac-
by the defendant, or to jolts and jars caused
by the surface of the ground, or the manner
in which the wagon was being driven into the
field where the lumber was to be deposited.
It follows that in accordance with the report
the entry must be:

interest from the date of the verdict, and
Judgment for the plaintiff for $5,000, with

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ANCE

manner provided by the constitution and laws
of the order, provided that, if one full assess-
ment does not produce that sum, the amount
shall not exceed the proceeds actually realized.
[Ed. Note. For other cases, see Insurance,
Cent. Dig. § 1986; Dec. Dig. § 802.*]
2. INSURANCE (§ 802*) - FRATERNAL INSUR-
ENFORCEMENT OF LIABILITY ON
CERTIFICATE INJUNCTION.
An injunction granted under Rev. Laws, c.
119, § 19, on proof that a foreign fraternal
beneficiary corporation has violated sections 7
and 8, by appropriating a part of its death and
emergency fund in payment of money loaned to
it, which restrains it from prosecuting any
business within the commonwealth, except to
defend actions and to pay such claims as are
now pending against it, does not release it from
its contracts of insurance; but it may not levy
assessments in the manner provided by its con-
stitution and laws, and it does not breach a
contract binding it to pay a specified sum when
collected by assessments, and a beneficiary may

not maintain an action at law on the contract.
[Ed. Note. For other cases, see Insurance,
Cent. Dig. § 1986; Dec. Dig. § 802.*]
Exceptions from Superior Court, Suffolk
County; John A. Aiken, Judge.

Actions by Harris Moshenz and by Rachel Superior against the Independent Order Ahawas Israel. There were verdicts for plaintiffs in each case, and defendant brings exceptions. Sustained.

Chas. H. Dow and Eaton & McKnight, all of Boston, for plaintiffs. Lourie, Ginzberg & Tobey, of Boston, for defendant.

BRALEY, J. [1] The defendant is a foreign, fraternal beneficiary corporation engaged in insurance conducted on the lodge system, with subordinate lodges in this commonwealth. It issued certificates of membership to Sarah Moshenz and Harris Superior, in which, upon their death, if in good standing, the defendant promised to pay to their beneficiaries the sum of $500 when collected by assessments at the time and in the manner provided by the constitution and laws of the order. But if one full assessment did not produce this sum, then the amount was not to exceed the proceeds actually realized. The insured members have died and, due notice of their death having been given, the defendant has neglected to levy an assessment or to pay the claims, and these actions are brought by the beneficiaries to recover the maximum amount which it concedes would have been received had the assessment been laid. The defendant's promise in the certificate, as well as by the first section of the fifth article of the laws, is to pay the amount of one assessment collected from members of the order by assessments to the respective lodges, and if not in default, it has the right to insist on the provisions of the contract. No suggestion is found in the agreed facts that satisfactory proofs of death had not been furnished. It is not affirmatively stated that the decedents had failed to pay or to tender all dues, assessments or taxes for which they were liable, nor is it

contended that the plaintiffs should have resorted to a bill in equity for specific per.. formance, and under the circumstances ordinarily an action at law could be maintained. Burdon v. Mass. Safety Fund Ass'n, 147 Mass. 360, 367, 17 N. E. 874, 1 L. R. A. 146; Dean v. American Legion of Honor, 156 Mass. 435, 31 N. E. 1; Garcelon v. Commercial Travelers' Ass'n, 184 Mass. 8, 67 N. E. 868, 100 Am. St. Rep. 540; Cyc. 29, 211. [2] The principal defense is that when the certificates matured the defendant, having been enjoined from transacting business in this commonwealth, could not lawfully levy the necessary assessments and there has been no breach. The injunction was granted under R. L. c. 119, § 19, upon proof that the defendant had violated sections 7 and 8 of this chapter by appropriating a part of its death and emergency fund in payment of money lent to the corporation. But if restrained "from prosecuting any business of such corporation within this commonwealth

until the further order of the court," it was

not released from its contracts of insurance.

Com. v. Barnstable Savs. Bank, 126 Mass.
526, 531; Rice v. Barnard, 127 Mass. 241;

Rosenbaum v. United States Credit System
Co., 61 N. J. Law, 543, 40 Atl. 591; Decker v.
Gardner, 124 N. Y. 334, 26 N. E. 814, 11 L.
R. A. 480. If interpreted as not embracing
the claims in suit, which accrued after the
proceedings were instituted and the injunc-
tion had issued, the only effect of the decree
would be to restrain the solicitation of in-
surance in the future and the issuance of new
certificates. Doubtless, as the information
alleged, the defendant's condition was such
"as to render its further proceedings in this
commonwealth hazardous to the public and
to its certificate holders therein," yet the
decree might have provided that while new
business could not be solicited, applications
received or certificates issued, the defendant,
in justice to its resident members, should be
permitted to levy the necessary assessments
and pay maturing death claims in accordance
with the terms of outstanding certificates.
The subsequent modifications of the in-
junction permitted the defendant to defend
actions, and to "pay such claims as are now
pending against it." The decedents were
members, and the plaintiffs cannot set up the
illegal acts of the officers of the corporation
which is not estopped, even under the in-
junction as modified, to plead its incapacity
to make payment. Com. v. Wetherbee, 105
Mass. 149; Kidder v. United Order of the
Golden Cross, 192 Mass. 326, 78 N. E. 469;
Trenton Mutual Life Ins. Co. v. McKelway,
12 N. J. Eq. 133. And the burden is upon
the defendant to maintain this defense. Fer-
guson v. Union Mutual Life Ins. Co., 187
Mass. 8, 14, 72 N. E. 358; Kidder v. United
Order of the Golden Cross, 192 Mass. 326,
336, 78 N. E. 469. The defendant, the de-
cedents and the plaintiffs during the continn-

of liquor in licensed hotels on Sundays and holidays was competent evidence, notwithstanding plaintiff had been found not guilty in other proceedings to remove him for alleged incapacity and neglect of duty with reference to the same

matter.

ance of the injunction were alike restrained of police of the city by a police officer specially by force of law from taking any steps in the appointed by the board to investigate the sale performance of the mutual and dependent stipulations of the contract and neither party could gain any advantage over the other. Webb Granite & Construction Co. v. Worcester, 187 Mass. 385, 390, 391, 73 N. E. 639, and cases cited; Hill v. Baker, 205 Mass. 303, 308, 91 N. E. 380, 137 Am. St. Rep. 440; People v. Globe Mutual Life Ins. Co., 91 N. Y. 174; Union Trust Co. of New York v. Southern Inland Navigation & Improvement Co., 130 U. S. 565, 9 Sup. Ct. 606, 32 L. Ed. 1043.

The modification permitting the payment of claims now pending, although asked for by the informant, presumably received the defendant's assent. It apparently speaks only of the present, and the agreed facts are silent as to whether there were matured claims other than those of the plaintiffs. If the defendant was unable to respond, the modification should have been so framed as to permit the necessary levies. It is not thus worded, and a qualification of such gravity, when viewed with the purpose of the information, should not be inserted by implication, where the terms of the decree are neither indefinite nor uncertain. It is plain that the defendant, in performance of its contracts, was not empowered to levy assessments in the manner provided by its constitution and laws, but it received permission only to pay, at its option, from funds derived from other sources which could be lawfully appropriated for that purpose. To construe the record as authority for the levying of assessments would enable the defendant to resume the doing of business, in violation not only of the letter but of the spirit of the injunction. The eighth ruling was right. But if prohibited from raising the money by assessment, there has been no breach of the contract as alleged in the declaration, and the the defendant's request that upon all the evidence the plaintiffs could not recover should have been given. Garcelon v. Commercial Travelers' Ass'n,

184 Mass. 8, 67 N. E. 868, 100 Am. St. Rep. 540; Brann v. Maine Benefit Life Ass'n, 92 Me. 341, 42 Atl. 500; O'Brien v. Home Benefit Society, 117 N. Y. 310, 318, 319, 22

N. E. 954.

Exceptions sustained.

(215 Mass. 152)

STEARNS v. LONG.

(Supreme Judicial Court of Massachusetts. Middlesex. May 28, 1913.)

[Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 307-314; Dec. Dig. § 110.*]

2. LIBEL AND SLANDER (§ 104*)-RECEPTION OF EVIDENCE-PRELIMINARY QUESTION. board for libel, consisting of a published charge In an action by a member of the police. that he was lax in enforcing the liquor law, a question asked of a witness whether he had stated, as printed in defendant's paper, that after a hearing by the board of the subject of revoking the liquor license, witness found the general impression among those who had attended the hearing or read of it that the board had no desire to get at any of the facts in any of the cases, was preliminary and properly allowed.

[Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 284-291; Dec. Dig. § 104.*]

3. LIBEL AND SLANDER (§ 110*)—EVIDENCEREPUTATION OF PLAINTIFF.

official conduct as a member of a city police In an action for libel concerning plaintiff's board, the alleged libelous language not being such as to impute bribery, or any other act that was punishable criminally, evidence as to plaintiff's character and reputation in the community, not confined to those traits of character which the imputed wrongdoing involved, was inadmissible.

Slander, Cent. Dig. §§ 307-314; Dec. Dig. § [Ed. Note.-For other cases, see Libel and 110.*]

4. EVIDENCE (§ 106*)—CHARACTER AND REPU

TATION.

In civil proceedings, evidence that plainadmissible, though the cause of action is one for tiff's character and reputation is good is inwhich a criminal prosecution might be brought.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 177-187; Dec. Dig. § 106.*] Exceptions from Superior Court, Middlesex County; Wm. B. Stevens, Judge.

Tort for libel by Frank K. Stearns against Dennis A. Long in the superior court. There was a verdict for defendant, and plaintiff brings exceptions. Overruled.

Tort for a libel. The declaration was in

22 counts, practically all of which were reflections on the plaintiff, either individually or as a member of the board of police of Lowell, in reference to his conduct or actions in his performance of his duties as a member of the board. The publication of the articles alleged to be libelous was admitted. It appeared that in another proceeding the mayor of the city had preferred charges against the board, including the plaintiff, for malfeasance in office, incapacity and neglect of duty. On the matter com

1. LIBEL AND SLANDER (§ 110*)-EVIDENCE-ing on appeal before a justice of the superior 1. LIBEL AND SLANDER (§ 110*)-EVIDENCE

OFFICIAL REPORTS.

court, the commissioners were found not Where, in an action for libel charging guilty and they were restored to office, from plaintiff, a member of a city police board, with which they had been removed by the mayor. malfeasance in office, in that he and his as- At the trial of the libel case in the superior sociates were lax in the enforcement of the law relative to the sales of intoxicating liquors by court before Stevens, J., the defendant called innkeepers, written reports made to the board one Craig, and he was allowed to testify,

against plaintiff's objection, that he had said, by the defendant in justification; but that as printed in defendant's newspaper, that after a hearing given by the board on the subject of revoking a liquor license, he found the impression general among those who had attended the hearing or read of it that the board had no serious desire to get at the facts in any of the cases. The jury found for the defendant, and plaintiff excepted.

W. H. Bent, of Lowell, for plaintiff. J. J. Pickman, J. J. Harvey, and D. J. Murphy, all of Lowell, for defendant.

DE COURCY, J. [1] Two of the exceptions taken by the plaintiff relate to the admission of testimony and may be disposed of briefly. The written reports made to the board of police, of which the plaintiff was a member, by police officers especially appointed by the board to investigate the sale of intoxicating liquor in licensed hotels on Sundays and holidays, were competent evidence. They tended to show violations of the law by the various innkeepers, and hence that the alleged libelous statements that the plaintiff and his associates on the board had been lax in the enforcement of the law relative to the sales of intoxicating liquors by innholders, were true in substance. Conner v. Standard Publishing Co., 183 Mass. 474, 67 N. E. 596. The ground of the plaintiff's objection was that the judge of the superior court on this evidence had found the plaintiff not guilty of any violation of law. But as the issue and the parties were different, the doctrine of res adjudicata does not apply.

[2] The question put to the witness Craig clearly was a preliminary one, namely, whether he made the statement referred to, not whether that statement was true; and it was so stated by the judge. This exception must be overruled.

[3, 4] At the close of the evidence of the defendant, the plaintiff made an offer of the testimony of witnesses as to his character and reputation in the community. This was offered, not as bearing on damages, but on the issue of liability, and in any event would be immaterial on the question of damages in this case, as the verdict was for the defendant. Howland v. Blake Mfg. Co., 156 Mass. 543, 31 N. E. 656. In civil proceedings, the general rule is that such evidence is immaterial and hence inadmissible even though the cause of action is one for which a criminal prosecution might be brought. Geary v. Stevenson, 169 Mass. 23, 47 N. E. 508; Colburn v. Marble, 196 Mass. 376, 82 N. E. 28, 124 Am. St. Rep. 561. In an action of libel or slander, in some states evidence of the plaintiff's reputation is admissible in chief, on the theory that his character is put in is25 Cyc. 482, 514. It is assumed by the plaintiff in his argument that where the words charge a crime he may show his good character in rebuttal of evidence introduced

sue.

we think must be regarded as an open question in this commonwealth. The case of Harding v. Brooks, 5 Pick. 244, is authority for the introduction of such evidence only on the issue of damages, and in cases where the charge sought to be proved is of a criminal act, as was pointed out by Knowlton, J., in Howland v. Blake Mfg. Co., 156 And in the Mass. 543, 569, 31 N. E. 656. latter case it was decided only that if rep

See

utation was admissible in an action of libel, the plaintiff had not brought himself within the rule limiting such evidence to cases in which the charge sought to be proved is of the commission of a crime as distinguished from a charge of lesser magnitude. Geary v. Stevenson, 169 Mass. 23, 32, 47 N. E. 508. Even assuming, without deciding, that where the defendant under his plea of justification assumes the burden of proving that the plaintiff was guilty of acts punishable as crimes, the plaintiff may repel that proof by evidence of good character, nevertheless in the case at bar the trial judge rightly excluded the evidence offered. language used by the defendant in the alleged defamatory publications, interpreted by the ordinary meaning of the words, does not seem to us to impute bribery or any other act that is punishable criminally. V. Collier, 151 Mass. 50, 23 N. E. 723, 6 L. R. A. 680. Furthermore, the offer of evidence was not confined, as it should have been, to those traits of character which the imputed wrong doing involved. Com. v. De Vico, 207 Mass. 251, 93 N. E. 570. Exceptions overruled.

The

Sillars

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A grantee of land in trust to resell and divide the proceeds between himself and a third person, after repaying the third person the sum advanced by him, conveyed the land through a conduit of title, and who in turn at the same time conveyed it to himself and others as trustees under a real estate trust agreement and declaration of trust. The interest of the owners was represented by certificates, called shares. No value was given for the conVeyance from the grantee through the conduit to the trustees. All the shares were issued by the trustees to the grantee as payment for the land. He did not inform the cotrustees of his

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