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[Ed. Note.-For other cases, see Trial, Cent. Dig. 500; Dec. Dig. § 206.*]
ry admissions and statements of plaintiff and the following language: "The plaintiff claims his witnesses, a ruling, that if he made such that while so employed he was injured by statements the jury would be warranted in believing that they were true, notwithstanding his the falling of a fence upon him. testimony to the contrary, should have been giv- The defendant denies that he was injured in en, since his statements were evidence of the that way and claims that he was injured by truthfulness of the thing stated, and the request falling off the ladder resting on the hopper, had reference, not to a part of the evidence pre- [while he was] engaged in the repair of the sented by the defendant, but to substantially the whole of it. hopper so called." And the jury were told in substance that the burden was upon the plaintiff to show that his injuries were caused by the fall of the fence upon him; that unless they believed the story of the plaintiff in this respect the defendant was entitled to a verdict. Here, then, was a sharply defined issue, reaching to the vitals of the case. If the jury took the defendant's view, or were in doubt as to which way the evidence preponderated on the plaintiff's view, then the verdict was to be for the defendant.
Exceptions from Superior Court, Suffolk County; Hugo A. Dubuque, Judge.
Action by Frank Jaglenaski against the Andersen Coal Mining Company. Verdict for plaintiff, and defendant brings exceptions. Exceptions sustained.
Defendant's fourth request was for a ruling that, if the jury believed that plaintiff made the statements attributed to him to the effect that he fell off the hopper and thereby received his injury, the jury would be warranted in believing that such statements were true, notwithstanding the plaintiff's testimony to the contrary during the trial.
W. W. Clarke, of Boston, and C. J. Muldoon, Jr., of Somerville, for plaintiff. M. O. Garner, of Boston, for defendant.
HAMMOND, J. The plaintiff was injured while at work for the defendant upon its Upon the evidence, the questions whether he was in the exercise of due care, whether the fence was in a dangerous condition and if so for how long a time the danger had existed, whether the defendant knew or ought to have known of the danger, and whether the accident was attributable to the negligence of the defendant, were all questions for the jury. The first request was therefore rightly refused.
[1, 2] There is, however, another exception taken by the defendant which requires consideration in some detail. It appeared that the plaintiff was at work with one Brown in the repair of a hopper. He testified that boards were needed for the repairs; that Brown was repairing the hopper and the plaintiff was bringing boards from a place close to the fence to the hopper, a distance of about 75 feet; that the boards were "right side of the fence"; that while he "was pulling up [the board] the fence fell" upon him and he was hurt. He further testified that the fence was 9 or 10 feet high, and that "the top of the hopper was about as high as a tall person could reach with a cane." There was other evidence that the height of the hopper was 11 or more feet.
One of the grounds of the defense was that the plaintiff's story of the way he was hurt was not true; that the plaintiff was not injured by the fall of the fence upon him, but by his fall from a ladder leaning against the hopper. This ground of defense is stated at the beginning of the charge to the jury in
The only person on the wharf at the time of the accident beside the plaintiff was one Brown. Called by the plaintiff, he testified that he and the plaintiff were repairing the hopper; that the "plaintiff went to get some pieces of board for that purpose, but did not bring the board"; that the witness was working inside the hopper and heard a scream, and went out and saw the plaintiff under the fence; that after considerable dif
ficulty he released him, and that the plaintiff appeared badly hurt.
The defendant, having no actual witness to the accident, was compelled on this part of its defense to rely almost entirely upon alleged admissions of the plaintiff as to the manner of the accident, and, so far as affected the credibility of Brown, upon alleged statements made by him inconsistent with his testimony.
To prove these admissions of the plaintiff and the inconsistent statements of Brown, the defendant called: First, one Charest, who testified that shortly after the accident he, while in the employ of counsel for the defense, went with Miss Hogan, a stenographer, and saw her "take a stenographic statement from the plaintiff"; "that in his statement the plaintiff said he had received his injury by falling from a hopper which he was repairing; that he was endeavoring to pull some nails out of boards in the hopper, and his hammer slipped and he fell to the wharf, sustaining the injuries complained of." Second, Miss Hogan, who testified that while in the employment of counsel for the defendant she went as stenographer with Charest to take the statement of the plaintiff; that in that statement the plaintiff said he was injured "by falling from the hopper," and that "he made no mention of an injury caused by a fence falling on him." Both of these witnesses said that they had no difficulty in understanding the English spoken by the plaintiff, and the latter that she had no difficulty in taking his statement. Third, one Farnham, who testified that in a conversation held by him with
the plaintiff and Brown on the wharf a few minutes after the accident, both told him that the "plaintiff had fallen from the hopper and injured himself." One Tighe (the person who, acting for the defendant, hired the plaintiff) testified for the defendant that the plaintiff told him that he "had fallen from the hopper." Each of these two witnesses said that he was well acquainted with the plaintiff and that he and the plaintiff could understand each other. The plaintiff was a Pole, and had lived in Chelsea in this state for 15 years. The evidence as to his ability to understand or to speak our language was somewhat conflicting, and the jury might have found that he understood and spoke it only in an imperfect way.
In this state of the evidence the judge as to this part of the case charged the jury as follows: "The plaintiff says * that he * was requested by the superintendent of the defendant company, Mr. Tighe, to go and get some boards and to repair the hopper, and that at the time he was looking for a board, and that while so doing he was pulling a board from a fence that was down, or something that was down, * that the fence fell on him. The defendant says that the accident did not occur in this way; that the plaintiff said that the accident occurred while he was working on the hopper; and right there you want to consider what was meant when he said that he was working on the hopper. Supposing a man is working in the erection of a building and he is either at the carpenter's bench or attending a carpenter who is working on the ground and they are preparing boards for that building. Is he working on the building? That is one way to test it. Is he working on that building; although not actually upon the building or a ladder resting on the building, or inside of the building, if he is outside doing some
work towards the erection or the repair of the building, do we in common language, talking about it, do so say that the man is working on the building?" And then, after some general observations bearing upon the question of the degree of knowledge possessed by the plaintiff of our language and the chance of being misunderstood, he proceeds
as follows: "Now when he was there in the
hospital did the parties who came there come
there with an idea that the accident had al
the boards in place of the old boards to put on the hopper, or did it mean that he was actually on the hopper himself and on the ladder?"
It will be noted that no one of the witnesses called to testify as to the admissions of the plaintiff said that he used the words "while he was working upon the hopper." On the contrary, every one of them testified that he said he "fell from the hopper," and one of them also describes the precise cause of the fall, namely, the slipping of his hammer as he was attempting to pull out a nail. It is to be presumed that the judge supposed he was rightly quoting the testimony, but it is clear that he was not, that he entirely failed to quote it properly, and that the charge based upon a misapplication of it was not only uninstructive, but entirely misleading, and was highly prejudicial to the defendant. And we do not think the statement to the jury, in another part of the charge, that the jury are to act upon their understanding of the testimony and not upon that of the judge cures in this case the difficulty.
It may be that if the defendant had failed to call the attention of the judge to this inaccuracy in stating the testimony and the consequent prejudice to the defendant in his treatment of it, the defendant would have been deprived of the right to raise the question here. But at the close of the charge, and before the jury had finally retired to consider the case, a colloquy not in the hearing of the jury took place between the judge and the counsel for the defendant; and the latter called the attention of the judge to this radical misstatement of the evidence and specifically stated the difference between the language of the witnesses and that of the court; and he excepted to this part of
she could or did rightly understand the she could or did rightly understand the plaintiff.
well to say that the evidence as to the com As the case is to go back it may be ready happened by his falling off the hop-It had no tendency to show whether or not pensation of Miss Hogan was inadmissible. per? Did they come there with the preconceived idea, or did they come there simply not knowing anything about it and trying to ascertain from him? If they came there with a preconceived idea, information received from either Farnham or from Tighe that the accident had happened in a certain way, did they put their questions to him in such form as to elicit the fact that he was at the time engaged in working on the hopper; and when he said, if he did say, that he was working on the hopper, did it mean any more than that
 And the fourth request could properly have been given. It is true it may be said that it called upon the court to charge as to the effect of a particular fact or series of facts, a thing which many times should not be done. But the sole evidence (except possible inferences which could be drawn from the nature of the injuries) in support of the theory of the defendant was that as to the
Plaintiff was a laborer, and had been in defendant's foundry for 22 years. In the foundry were three brass furnaces, the tops of which were flush with the floor and the bottoms about 32 inches below floor level. The pots of molten brass were lifted out of the furnace red hot with tongs, and were carried to the molds where the brass was poured. Plaintiff had assisted in lifting out one pot, and as he was immediately thereafter assisting in lifting out a second one his clothes took fire from the heat radiating from the pots, and he was burned.
sions were to be rejected by the jury there [ al injuries. Verdict for plaintiff, and defendwas but little, if any, evidence in support of ant brings exceptions. Sustained. the defendant's theory. If the admissions were accepted by the jury, then the plaintiff had no case. In a word, so far as respected this ground of defense, the verdict hinged on the view the jury might take of the admissions. It is also to be borne in mind that the request had another aspect. While any statement of the witness Brown inconsistent with his testimony could not be evidence of the truthfulness of the statement and its only bearing would be on the degree of credibility to be given to his testimony, and would not have been admissible at all if he had not been a witness, yet the statements of the plaintiff himself being in the nature of admissions may be taken as evidence of the truthfulness of the things stated; and that would have been so even if he had not been a witness. The fourth request was true as a proposition of law; it had reference, not to a part of the evidence presented by the defendant on this issue, but to substantially the whole of it. While the failure to give it may not strictly have been legal error, yet its manifest effect would have been to call sharply the attention of the jury to the body of the evidence upon this issue, its probative effect and thus to simplify the cases so far as dependent upon the issue.
(214 Mass. 429)
SAKAS v. LUMSDEN & VAN STONE CO. (Supreme Judicial Court of Massachusetts. Suffolk. May 21, 1913.)
1. MASTER AND SERVANT (§ 213*)-INJURIES TO SERVANT-ASSUMPTION OF RISK.
Because of the intense heat radiating from crucibles when in use, it was customary that the same man should not carry two crucibles in succession. When assisting in pouring molten brass therefrom, plaintiff carried a second crucible, and his clothing, being overheated, caught fire. Held, that plaintiff assumed the risk of the second exposure of his inflammable clothing to the extreme heat.
[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 559-564; Dec. Dig. § 213.*]
Jas. F. Creed and John J. Mansfield, both of Boston, for plaintiff. M. O. Garner, of Boston, for defendant.
SHELDON, J. If we assume that Charles Paul was or could be found to be intrusted by the defendant with and exercising superintendence and having that for his sole or principal duty, or at least to be a person acting as superintendent with the authority and consent of the defendant in the absence of the regular superintendent, within the meaning of R. L. c. 106, § 71, cl. 2, now contained in St. 1909, c. 514, § 127, cl. 2, we are yet of opinion that the plaintiff was not entitled to maintain his action, upon his contention (which was the only ground submitted to the jury) that his injury was due to the negligence of Paul.
 His injury was due to the fact that his clothes caught fire by reason of the heat radiating from a pot or crucible of molten brass, which under the order of Paul he was assisting another man to lift and empty. He had just before done the same thing with another like crucible; and it could be found that the prior exposure of his garments to the great heat (some 2,000 degrees) radiat ing therefrom rendered it more dangerous to subject them again to the same ordeal, and that for this reason it was customary that the same man should not lift and carry two such pots or crucibles in succession. But the effects of exposure to excessive temperatures are within the common knowledge of mangence could be heard to say, for example, No grown man of ordinary intellithat he was ignorant of the result of putting a slice of beef upon a gridiron immediately over an aperture in the top of a heated range, or. of placing a combustible substance in close proximity to any matter heated to such a temperature as is here in question. And it is equally a matter of common knowledge that the effect of additional exposures immediately succeeding each other will much enhance the result thereof in parching, burning and setting on fire any combustible subExceptions from Superior Court, Suffolk stance thus exposed. In this very case, the County; Frederick Lawton, Judge.
2. MASTER AND SERVANT (§ 177*)-INJURIES
TO SERVANT-NEGLIGENCE OF FOREMAN.
Where, when plaintiff was holding with another a crucible used to convey molten brass for the purpose of knocking off clinkers from its bottom, his clothes began to smoke from the intense heat from the crucible, that the foreman, as soon as he saw it, told him to continue to hold it up, did not constitute negligence, where, if the crucible had been put down with clinkers on the bottom, a dangerous explosion
would have resulted.
[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 307, 352, 353; Dec. Dig. § 177.*]
Action by Appolonari Sakas against the Lumsden & Van Stone Company for person
judge correctly ruled that the plaintiff must be taken to have appreciated and assumed the risk of his clothes taking fire from hand
*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
trol, the master was under obligations to use due care as to employés; the rule being the same, regardless of the ownership of the barge.
[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 193-198; Dec. Dig. § 106.*]
Exceptions from Superior Court, Suffolk County; William B. Stevens, Judge. Action by Joseph Tierney against the MerVerdict chants' Steam Lighter Company. for plaintiff, and defendant excepts. Exceptions overruled.
ling such a crucible. But he allowed the jury | corporation and was under its exclusive conto find that there was such an added, increased danger in lifting a second crucible as to constitute a separate and distinct danger, which the plaintiff could not reasonably foresee under the circumstances, but which one charged with the duty of superintendence ought to have foreseen. But all the evidence was that it was no uncommon thing for the men to become burned in handling these crucibles; and we can see no ground for saying that (to use arbitrary figures) a workman must be deemed to appreciate and assume the risk of exposure to the enormous heat for five minutes, but that an exposure to the same heat for double that time involved a danger which was of a distinct character, which was not obvious and which he properly might require to have explained to him. HAMMOND, J. At the time of the acciEach risk is of the same character; it is dent the barge was being used in the business no more necessary to give warning against of the defendant corporation and was under the one than against the other. The case its exclusive control. The defendant was comes within the same principles that were therefore under an obligation to use due care applied in Cunningham v. Blake Steam Pump to see that in using it there was no danger Works, 208 Mass. 68, 70, 94 N. E. 450; Bois- to a careful employé; and that is so whether vert v. Ward, 199 Mass. 594, 85 N. E. 849; the barge was owned or borrowed by the deand Whalen v. Rosnosky, 195 Mass. 545, 81 fendant. Spaulding v. Flynt Granite Co., 159 N. E. 282, 122 Am. St. Rep. 271. Indeed the Mass. 587, 34 N. E. 1134; Ladd v. N. Y., N. plaintiff did not testify, nor do we find any H. & H. R. R., 193 Mass. 359, 79 N. E. 742, other evidence tending to show, that he did 9 L. R. A. (N. S.) 874, 9 Ann. Cas. 988, and
not appreciate the danger of a further exposure to heat from a second crucible as well as that of the first exposure.
 The plaintiff testified that while he and another were holding up the second crucible to knock off clinkers from its bottom, his clothes began to smoke, and he said, "I am burning," but that Paul answered, "Never mind, hold up." He testified also that Paul, as soon as he saw the fire, told the plaintiff to let it down. This first mentioned order cannot be said to have been negligently given. McHugh, a witness for the plaintiff, testified, and it appears to have been undisputed, that to put down the crucible with clinkers on the bottom would have been more dangerous than to hold it up, from the risk of its turning over and causing an explosion; that the clinkers must be knocked off before it could be set down.
We find no evidence of negligence for which the defendant was responsible; and the order must be:
(214 Mass. 540)
Daggett & Jefferson and Garland & Berenson, all of Boston, for plaintiff. M. O. Garner, of Boston, for defendant.
The evidence warranted findings that the rope which parted was defective and unsafe for the use for which it was intended; that a proper inspection on the part of the defendant would have disclosed the defect; that such inspection was not made by the defendant; that the plaintiff, however, had the right to assume that it had been made and to act accordingly; that the defect was not obvious to the plaintiff, and that in using the rope as he did he did not assume the risk; that he neither knew of nor had any reason to suspect the defect, and that while in the exercise of due care he was using the rope, he was injured by reason of the negligence of the defendant. No citations are needed to show that such findings would entitle the plaintiff to a verdict. The case is clearly distinguishable from the class of cases of which Roughan v. Boston & Lockport Block Co., 161 Mass. 24, 36 N. E. 461, cited by the defendant is a type. The court rightly refused to rule as requested by the defendant.
The exception taken to a portion of the TIERNEY v. MERCHANTS' STEAM LIGHT- charge to the jury is not pressed in the brief
(Supreme Judicial Court of Massachusetts.
Suffolk. May 23, 1913.)
MASTER AND SERVANT (§ 106*)-INJURIES TO
Where, at the time of an accident, a barge was being used in the business of a
of the defendant, and in view of its nature we regard it as waived.
The defendant complains of the amount of the verdict. But with that question this court cannot deal. Exceptions overruled.
*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
(214 Mass. 492)
GEROMINI v. BRUNELLE. (Supreme Judicial Court of Massachusetts.
Norfolk. May 22, 1913.) HUSBAND AND WIFE (§ 325*)-ALIENATION OF AFFECTIONS-LIABILITY.
A person who gives a husband advice, with an honest and friendly desire to assist him, even though it leads to his separation from his wife, and may turn out not to have been the best advice that could have been given, is not liable to the wife, in the absence of malice.
[Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. § 1119; Dec. Dig. § 325.*]
Exceptions from Superior Court, Norfolk County; John C. Crosby, Judge.
that in the present case she had to show malice on his part. This she failed to do. It follows that the exceptions must be overruled. See Corey v. Eastman, 166 Mass. 279, 287, 44 N. E. 217, 55 Am. St. Rep. 401; Plant v. Woods, 176 Mass. 492, 500, 57 N. E. 1011, 51 L. R. A. 339, 79 Am. St. Rep. 330; Multer V. Knibbs, 193 Mass. 556, 79 N. E. 762, 9 L. R. A. (N. S.) 322, 9 Ann. Cas. 958. Exceptions overruled.
Action by Elizabeth Geromini against Louis Brunelle. Verdict for defendant, and plaintiff brings exceptions. Exceptions over-1.
MORTON, J. The only exception in this case is to the refusal of the court to instruct the jury as requested by the plaintiff that she need not prove malice on the part of the defendant in order to entitle her to recover. We do not understand the plaintiff to find any fault with the instructions that were given if the instruction requested was rightly refused.
We think that the instruction asked for
could not have been properly given. In Tasker v. Stanley, 153 Mass. 148, 150, 26 N. E. 417, 10 L. R. A. 468, in an action for alienating the affections of the plaintiff's wife and enticing her to leave him, it was held that the defendants had a right to show that their advice was honestly given with a view to the welfare of both parties, and that in order to render them liable it should appear that the advice was not given honestly or was given from malevolent motives. We think that the same principles apply in an action by the wife for persuading and enticing her husband to leave her and take with him their minor children. It is true that the husband is bound to support his wife and that he is liable to a criminal complaint if | he unreasonably refuses or neglects to do so. But we do not think that that fact can affect his right to such advice or render a third party liable for advice which is given with an honest and friendly desire to assist him even though it may lead to his separation from his wife and may turn out not to have been the best advice that could have been given. The liability of the defendant does not depend upon whether the separation resulted wholly or in part from the advice which he gave, but quo animo the advice was given. There must have been an invasion of the plaintiff's rights in some form by the defendant in order to entitle her to maintain an action against him. In order to show
(214 Mass. 374)
LEE v. BLODGET et al. (Supreme Judicial Court of Massachusetts. Suffolk. May 20, 1913.) PLEADING (§ 392*)-GENERAL DENIAL-EF
Where plaintiff sued several, setting up a joint undertaking, and the answer of all the defendants contained a general denial, proof of the promise as alleged is essential to recovery.
[Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 1312-1319; Dec. Dig. § 392.*] 2. EXECUTORS AND ADMINISTRATORS (§ 203*)JOINT CONTRACTS-SURVIVORSHIP.
The executors of one who was a party to a joint contract are not jointly liable with the survivors.
[Ed. Note.-For other cases, see Executors Dec. and Administrators, Cent. Dig. § 731; Dig. § 203.*] 3. PARTIES (§ 75*)-MISJOINDER-MODE OF AT
The misjoinder of the executors of a deceased party to a joint contract with the survivors may be attacked by a request, made aftevidence, and consequently, upon such attack, er opening and before the introduction of any the court may direct a verdict for the executors.
[Ed. Note.-For other cases, see Parties, Cent. Dig. §§ 115, 116, 167; Dec. Dig. § 75.*] 5. CONTRACTS (§ 182*)-JOINT CONTRACTS LIABILITY OF SURVIVORS.
party to a joint contract may be liable, under Even though the executors of a deceased Rev. Laws, c. 141, § 8, in a separate action, yet both at common law and under chapter 177, $ 6, providing, in an action against two or more defendants upon a contract, the plaintiff shall be entitled to judgment against those who, upon trial, are found liable, though it is not found that all of the defendants are jointly liable, the survivors are bound to the full extent of the promise.
[Ed. Note.-For_other_cases, see Contracts, Cent. Dig. §§ 780-787; Dec. Dig. § 182.*] 6. PARTIES (§ 65*)-MISJOINDER - EFFECT OF MISJOINDER-NECESSITY OF AMENDMENT.
Where an action was brought, not only against the survivors, liable on a joint contract, but against the executors of a deceased party. no amendment is necessary if, upon the plea of as to the executors, who were improperly joined. misjoinder, plaintiff moved for a discontinuance
[Ed. Note.-For other cases, see Parties, Cent. Dig. §§ 100-107; Dec. Dig. § 65.*]