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7. JUDGMENT (§ 238*)-JOINT PARTIES-DIS- | 326, 75 N. E. 724; Walpole v. Quirk, 143

CONTINUANCE.

Where the executors of a deceased party to a joint contract were joined in an action against the survivors, a verdict for the executors operated only as a discontinuance, and the suit remained joint as to the survivors.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 415, 416; Dec. Dig. § 238.*] 8. APPEAL AND ERROR (§ 320*) -TIME FOR

PERFECTING APPEAL-REPORTS.

Under Rev. Laws, c. 173, § 105, providing that a justice of the Supreme Judicial Court or superior court, after verdict, may report the case for determination by the full court, if he be of the opinion that a finding or order made by him ought to be determined by the full court, and may stay further proceedings, the question whether a case shall be reported rests in the discretion of the judge, who need not accede to the request of the party, and whose action is governed by what he deems to be reasonable and just; there being no time fixed, as in case of exceptions and appeal, within which the right must be exercised. Therefore a delay of more than two years in filing a report will not deprive the defeated party of review; it appearing that during all that time the successful parties made no request that the report be prepared or filed, and that they suffered no impairment of any legal right.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 1790-1794, 2299; Dec. Dig. § 320.*]

Report from Superior Court, Suffolk County; John F. Brown, Judge.

Action by Charles E. Lee against Walter H. Blodget and others. On report, after verdict for defendants. Judgment on the verdict as to certain defendants, and the cause reversed and remanded as to others.

Arthur H. Russell, of Boston, for plaintiff. John S. Gould, of Worcester, for defendants Heslor. Romney Spring, of Boston, for defendants Hamilton, Ely, and Dewey.

BRALEY, J. [1-4] The contract declared on is the joint undertaking of the subscribers to pay the plaintiff for his services in organizing the corporation, and under the answers, each of which contains a general denial, he was required to prove the promise as alleged. Bartlett v. Robbins, 5 Metc. 184; Wood v. Farmer, 200 Mass. 209, 86 N. E. 297; Boston Relief & Submarine Co. v. Burnett, 1 Allen, 410; Amsinck v. Boylston Mut. Ins. Co., 129 Mass. 185, 188. And the cause of action having been severed by the death of Stephen Salisbury, his executors, although sued with them, were not jointly liable with the survivors. Von Arnim v. American Tube Works, 188 Mass. 515, 520, 74 N. E. 680, and cases cited. The misjoinder could have been availed of by demurrer, but as this defense also could have been raised under a request made after the plaintiff's opening, and before any evidence had been introduced, the court properly directed a verdict for these defendants. Hey v. Prime, 197 Mass. 474, 475, 84 N. E. 141, 17 L. R. A. (N. S.) 570; Livermore v. County of Norfolk, 186 Mass. 133, 135, 71 N. E. 305; s. c., 189 Mass.

Mass. 72, 9 N. E. 9; Cowley v. Patch, 120 Mass. 137; Tuttle v. Cooper, 10 Pick. 281.

[5-7] But if under R. L. c. 141, § 8, the executors in a separate action would be liable as if the contract of the testator had been

joint and several, yet at common law as well as by R. L. c. 177, § 6, the living defendants and promisors, although neither is bound by himself, are bound jointly to the full extent of the promise. New Haven & Northampton Co. v. Hayden, 119 Mass. 361; Colt V. Learned, 133 Mass. 409; Foote v. Cotting, 195 Mass. 55, 80 N. E. 600, 15 L. R. A. (N. S.) 693; Meyer v. Estes, 164 Mass. 457, 41 N. E. 683, 32 L. R. A. 283. It was open to the plaintiff as soon as the defense of misjoinder had been raised to have moved to discontinue, and no amendment to the declaration would have been necessary. Taft v. Church, 162 Mass. 533, 39 N. E. 283; s. c., 164 Mass. 504, 41 N. E. 671. The verdict for the executors, however, in so far as the other defendants were concerned operated only as a discontinuance, and the suit re mained joint as to the survivors. Philadelphia & Reading Coal & Iron Co. v. Butler, 181 Mass. 468, 63 N. E. 949; Hathaway v. Crocker, 7 Metc. 262, 268.

[8] The plaintiff having been entitled to a trial on the merits, the judge erroneously ruled that the action could not be maintained. It is urged that, even if reversible error appears, this court has no jurisdiction because of the delay of more than two years which have elapsed between the trial and the filing of the report. A party aggrieved may come to the full court on questions of law, either by appeal from errors of law apparent on the record, or by exceptions, or in the discretion of the trial judge by report. R. L. c. 173, $$ 96, 105, 106. If he resorts to an appeal, or bill of exceptions, the time within which the right must be exercised is limited. But whether a case shall be reported rests upon the discretionary power of the judge, who need not accede to the request of the defeated party, and whose action in taking the necessary steps where a report is to be made is governed by what he deems to be reasonable and just under the circumstances. R. L. c. 173, § 105; Newburyport Inst. for Savings v. Coffin, 189 Mass. 74, 75 N. E. 81; Smith v. Lincoln, 198 Mass. 388, 84 N. E. 498; Strong v. Carver Cotton Gin Co., 202 Mass. 209, 88 N. E. 582. The defendants understood by the judge's order, shown by an entry on the docket, that the case had been continued for the purpose of being reported, and the mere lapse of time, where the defendants do not appear even to have requested that the report be prepared and filed, or to have suffered the loss or impairment of any legal right, is insufficient to deprive the plaintiff of the benefit of the statute. By the terms of the report, judgment on the verdict is to be entered for the

executors, while the verdict for the other de- | ful arrest of the plaintiff. There was a verdict fendants is set aside and a new trial granted. So ordered.

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[Ed. Note.-For other cases, see Assault and Battery, Cent. Dig. § 26; Dec. Dig. § 6.*]

2. ARREST (§ 63**)-CRIMINAL CHARGES-RIGHT TO ARREST WITHOUT WARRANT.

In the absence of any special statutory authority, officers may not arrest without a warrant on mere information that assaults had been committed by the person arrested on the day before.

[Ed. Note. For other cases, see Arrest, Cent. Dig. §§ 145-156; Dec. Dig. § 63.*]

3. ARREST (§ 63*)—CRIMINAL CHARGES-RIGHT

TO ARREST WITHOUT WARRANT.

Officers are not justified in arresting one on the ground that they believe he is a dangerous person to leave at large.

[Ed. Note. For other cases, see Arrest, Cent. Dig. § 145-156; Dec. Dig. § 63.*] 4. EVIDENCE (§ 382*)-PHOTOGRAPHS

FICATION.

VERI

The verification of the accuracy of a photograph offered in evidence rests with the trial court as an inquiry preliminary to its admission, and the question whether it will be of assistance to the jury must be determined by its sound discretion.

[Ed. Note.-For other cases, see Arrest, Cent. Dig. §§ 1658, 1659; Dec. Dig. § 382.*]

Exceptions from Superior Court, Plymouth County; Lloyd E. White, Judge.

Action by Charles A. Eldredge against Eugene Mitchell, Jr., and another. There was a verdict for plaintiff, and defendants bring exceptions. Overruled.

The plaintiff produced a photograph which purported to show his head and the dressings put on the cuts or bruises by the doctor. The plaintiff did not offer to produce as a witness the man who took the photograph, nor the one who printed it from the negative, but, on the mere statement of plaintiff that it was a true picture of his head as it appeared the day after the accident, offered it in evidence.

J. J. Feely and Roger Clapp, both of Boston, for plaintiff. Geo. L. Mayberry and Lowell A. Mayberry, both of Boston, for defendant Eugene Mitchell. Geo. F. James, of Boston, for defendant Wm. B. Mitchell.

DE COURCY, J. In this action for assault and battery the defendants pleaded in justification that they were police officers of the town of Hull, and that they used only such force as was necessary in making a law

for the plaintiff; and the case is here on three exceptions taken by the defendants.

[1] 1. The court rightly instructed the jury that unless they found that the plaintiff was drunk at the time of the arrest, the defendants had shown no justification and there was no defence to the action for assault. The arrest was made without a warrant. The defendant Eugene Mitchell, who made the complaint against Eldredge for drunkenness and assault on an officer, testified that he made the arrest for drunkenness and nothing else, and that the charge of assault was made for acts alleged to have been done while the officers were arresting him for drunkenness. Clearly, if Eldredge was not in fact drunk at the time, the arrest without a warrant and the assault in connection therewith were without justification in law and made the officers liable.

[2, 3] 2. The instruction requested by the defendants was not applicable to the evidence in the case, which shows that the ar

rest was made for the offence of drunkenness.

Furthermore, in the absence of any special statutory authority, they had no right to arrest without a warrant upon mere information that assaults had been committed by Eldredge on the day before. Com. v. Rug

gles, 6 Allen, 588; Com. v. Carey, 12 Cush. 246; Scott v. Eldridge, 154 Mass. 25, 27 N. E. 677, 12 L. R. A. 379. And there was nothing in the evidence to call for an instruction as to the right of a constable to arrest without a warrant for the purpose of preventing an imminent breach of the peace. It is needless to add that the court could not properly instruct the jury, as the defendants requested, that the officers would be justified in arresting Eldredge on the ground that they believed that he was "a dangerous person to leave at large."

[4] 3. The verification of the accuracy of the photograph rested with the court, as an inquiry preliminary to its admission; and the question whether it would be of practical assistance to the jury must be determined by his sound discretion. McKarren v. Boston & Northern St. Ry., 194 Mass. 179, 80 N. E. 477, 10 Ann. Cas. 961. Exceptions overruled.

(214 Mass. 549) FOURTH NAT. BANK OF BOSTON v. MEAD.

(Supreme Judicial Court of Massachusetts. Suffolk. May 23, 1913.)

1. EXECUTORS AND ADMINISTRATORS (§ 417*)POWERS OF EXECUTOR-INSOLVENT ESTATE. Under Rev. Laws, c. 142, § 30, providing that, if an estate has been represented to be insolvent, no action shall be maintained to charge the executor or administrator with debts of the deceased, except in case of a preference not af exceed the debts allowed by the commissioners, fected by the insolvency, or where the assets and chapter 146, § 17, providing that, if an ex

ecutor or administrator be licensed to sell land makes full provision for the presentation fraudulently conveyed by the deceased, he may, and allowance of claims, but by section 30 within one year after such license, bring an ac-after the estate has been represented intion for possession, the executrix of the deceased is alone entitled to sue to set aside a solvent no action shall be maintained either preference or to recover lands fraudulently con- at law or in equity to charge an executor veyed, and therefore a creditor cannot by bill in equity deprive her of that power, and remove or administrator with the payment of debts the administration of an insolvent estate into due from the deceased except in cases of equity; the remedy of the creditor, if the exec- preference not affected by the insolvency of utrix is incapable of exercising the trust im- the estate, or where the assets prove more posed upon her in favor of the creditors, because beneficiary of the fraudulent conveyances, be- than sufficient to pay debts allowed by the ing to apply to the probate court for her re- commissioners. Herthel v. McKim, 190 Mass. moval. 522, 524, 77 N. E. 695, 5 Ann. Cas. 911; Ryan v. Lyon, 212 Mass. 416, 420, 99 N. E. 169. The defendant as executrix, moreover, upon

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. 88 1646-1651; Dec. Dig. § 417.*]

2. COURTS (§ 200*)-JURISDICTION OF COURTS-insolvency of the estate represented crediPROBATE COURTS.

Under Rev. Laws, cc. 142, 146, respectively giving to probate courts the administration of an insolvent estate and the power of sale over such estate, and St. 1907, c. 549, providing for the sale of decedent's land for the payment of debts, the jurisdiction of a probate court to administer such an estate cannot be divested by a bill in the superior court, for the establishment of plaintiff's indebtedness and the setting aside of fraudulent conveyances by the decedent.

[Ed. Note.-For other cases, see Courts, Cent. Dig. 88 441, 442, 454, 469-471; Dec. Dig. 200.*]

3. COURTS (§ 24*)—JURISDICTION OF SUBJECTMATTER-CONSENT.

The consent or waiver of a defendant, even if sufficient to give jurisdiction over herself, cannot give the trial court jurisdiction over the cause and subject-matter.

[Ed. Note. For other cases, see Courts, Cent. Dig. §§ 76-78; Dec. Dig. § 24.*]

4. APPEAL AND ERROR 782*)-NECESSITY OF JURISDICTION OF LOWER COURT.

Where the lower court has no jurisdiction over the subject-matter of the action, an appeal from its determination must be dismissed.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3123, 3124; Dec. Dig. § 782.*1

tors, and being bound to recover and hold
for their benefit all the assets, which in-
cludes lands fraudulently conveyed, and
hence liable to attachment and execution by
a creditor of the testator in his lifetime,
the plaintiff cannot under the guise of a bill
to reach and apply usurp these powers, or
transfer to a court of equity the settlement
of the insolvent estate over which the court
of probate is given by statute exclusive ju-
risdiction. R. L. c. 142, and c. 146, § 2; St.
1907, c. 549; Cummings v. Cummings, 143
Mass. 340, 9 N. E. 730; Putney v. Fletcher,
148 Mass. 247, 248, 19 N. E. 370; Flynn v.
Flynn, 183 Mass. 365, 366, 67 N. E. 314; 'Dun-
bar v. Kelley, 189 Mass. 390, 392, 75 N. E.
740; Tracy v. Strassel, 191 Mass. 187, 77 N.
E. 700; Coram v. Davis, 209 Mass. 229, 247,
95 N. E. 298; Norton v. Lilley, 210 Mass. 214,
217, 96 N. E. 351; Horton v. Robinson, 212
The properly ap-
Mass. 248, 98 N. E. 681.
pointed representative of the estate is the
only person to institute proceedings for the
recovery of the property, which if recovered
is held in trust for creditors. French v.
Peters, 177 Mass. 568, 572, 59 N. E. 449;

Appeal from Superior Court, Suffolk Coun- Sargent v. Wood, 196 Mass. 1, 81 N. E. 901; ty; Charles F. Jenney, Judge.

Bill by the Fourth National Bank of Boston against Lura F. Mead, individually and as executrix, etc. From the decree, plaintiff appeals. Appeal dismissed.

Bates, Nay & Abbott and Wm. A. Kneeland, all of Boston, for plaintiff. Richard B. Stanley, of Boston, for defendant.

York v. Flaherty, 210 Mass. 35, 43, 96 N. E. 53, and cases cited; Stockwell v. Shalit, 204 Mass. 270, 90 N. E. 570; Tyndale v. Stanwood, 186 Mass. 59, 71 N. E. 83; R. L. c. 146, § 17. If by reason of the conveyances the executrix is rendered incapable of properly executing the trust, the remedy of the creditors, and of the plaintiff, is to apply to the court of probate for her removal if upon request she refuses to account for the property, and asserts her title. Glines v. Weeks, 137 Mass. 547; Putney v. Fletcher, 148 Mass. 247, 248, 19 N. E. 370; Dunbar v. Kelley, 189 Mass. 390, 391, 392, 75 N. E. 740; Norton v. Lilley, 210 Mass. 214, 217, 96 N. E. 351. But neither by demurrer nor answer have these defences been raised, and the case is here on the plaintiff's appeal after a trial on the merits at which it prevailed only as to one parcel.

BRALEY, J. [1, 2] The bill is brought against the defendant as executrix of her husband's will to have the indebtedness due from him to the plaintiff at the time of his death on three promissory notes for money lent established, and against her individually to reach and apply three parcels of real property alleged to have been deeded to her with the intention of hindering, delaying and defrauding the testator's creditors. It is averred, and the answer admits, that the estate has been represented insolvent under R. L. c. 142, § 2, and commissioners have been appointed by the court of probate to receive proof of claims. The statute not only

[3, 4] The consent or waiver of the defendant, if sufficient to give jurisdiction of herself, could not create jurisdiction over the cause and subject-matter, which has not been

to show that the street had been recently oiled, and the witness to refresh his memory freely used a memorandum, made by him and filed for the information of his superiors, the memorandum was inadmissible for any purpose, and was properly excluded.

vested by law in the trial court. Elder v. Jant, in order to show that the street was slipDwight Mfg. Co., 4 Gray, 201, 204; Santom pery, called a foreman of the street department v. Ballard, 133 Mass. 464; National Fertilizer Co. v. Fall River Five Cents Savs. Bank, 196 Mass. 458, 462, 82 N. E. 671, 14 L. R. A. (N. S.) 561, 13 Ann. Cas. 510. The decree being void this court cannot decide the case on appeal, and the order must be appeal dismissed. Jochumsen v. Suffolk Savs. Bank, 3 Allen, 87; Bearce v. Bowker, 115 Mass. 129; Peabody v. School Committee of Boston, 115 Mass. 383.

Ordered accordingly.

(215 Mass. 143)

GRAY V. BOSTON ELEVATED RY. CO. (Supreme Judicial Court of Massachusetts. Middlesex. May 24, 1913.)

1. DAMAGES (§ 172*) - PERSONAL INJURIESVALUE OF TIME EVIDENCE.

In an action for injuries to a passenger, he was properly permitted to show the extent of his studies and equipment in a department of learning in which he had specialized, as bearing on the value of his lost time.

[Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 490-492, 501; Dec. Dig. § 172.*1 2. DAMAGES (§ 172*) - PERSONAL INJURIES — Loss oF SERVICES-EVIDENCE.

Where plaintiff, a university professor, had made a special study of public service corporations, evidence that he had made a profitable contract for the preparation of a series of articles and was prevented from executing the contract during a summer vacation, as he had planned, because he was injured while alighting from one of defendant's street cars, was admissible to show the value of time lost by reason of his injury, though the contract price of writing the articles was not recoverable specifically.

[Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 490-492, 501; Dec. Dig. § 172.*1 3. DAMAGES (§ 40*) - PERSONAL INJURIESREMOTENESS.

Where an injury to a university professor resulted in his inability to comply with a contract to write certain articles during a summer vacation, which would have been profitable, his failure to write such articles was not too remote to be considered in determining the damages, he was entitled to recover.

[Ed. Note. For other cases, see Damages, Cent. Dig. §§ 72-88; Dec. Dig. § 40.*] 4. DAMAGES (§ 64*)-PERSONAL INJURIES-IN

SURANCE.

In an action for injuries to a passenger, evidence that he received money under a policy

of accident insurance was irrelevant.

[Ed. Note. For other cases, see Damages, Cent. Dig. § 113; Dec. Dig. § 64.*]

5. EVIDENCE (§ 123*)-RES GESTE-DECLARATION OF THIRD PERSON-CONCLUSION.

In an action for injuries to a passenger as he was alighting from a street car, evidence. that an unidentified person stated, as plaintiff was being picked up, "it was his [plaintiff's] own fault," was a mere exclamation of a conclusion and inadmissible.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 369-371; Dec. Dig. § 123.*]

Cent. Dig. § 892; Dec. Dig. § 257.*] [Ed. Note.-For other cases, see Witnesses, 7. DAMAGES (§ 34*) - PERSONAL INJURIESMISTREATMENT BY PHYSICIAN.

Where a person injured by defendant's negligence used due care in applying for treatment to a reputable physician, defendant was liable for the injuries resulting, though they were aggravated by an accidental and improper, but honest, treatment on the part of the physician. [Ed. Note. For other cases, see Damages, Cent. Dig. § 43; Dec. Dig. § 34.*]

8. DAMAGES (§ 216*).- PERSONAL INJURIES — EARNING CAPACITY-INSTRUCTIONS.

In an action for injuries, an instruction that the jury, in determining the amount of of his average earnings, his professional reputaplaintiff's damages, might consider the amount tion, and his special attainments in his profession, was proper.

[Ed. Note.-For other cases, see Damages,

Cent. Dig. §§ 548-555; Dec. Dig. § 216.*] 9. TRIAL (§ 260*) - INSTRUCTIONS - REQUEST TO CHARGE.

A request to charge, substantially covered by instructions given, may be properly refused. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*] 10. TRIAL (§ 252*)-INSTRUCTIONS-WITNESS

ES.

Where, in an action for injuries, the witnesses did not have equal opportunities for observation, a request to charge that where witnesses are of equal candor, fairness, and intelligence, with equal opportunity, knowledge, and memory, and their testimony is in all respects of equal credibility, and there is a conflict as to facts, which cannot be reconciled, the number of witnesses constitutes preponderance, and the verdict should be in harmony with the greater number of witnesses, was properly refused, as inapplicable to the facts.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.*] 11. TRIAL (§ 267*) - REQUEST TO CHARGEMODIFICATION.

In an action for injuries to a passenger while alighting from a street car, an instruc tion that plaintiff must show that a signal to start the car was given by the conductor, or that the car was started by the motorman without signal, and that plaintiff could not recover by showing that the car was started, and nothcharge that plaintiff was required to show that ing more, was properly modified, so as to

a signal to start the car was given by the conductor, or that it was started by the motorman without signal, but that, if the jury believed plaintiff's testimony, they would be warranted in finding that a signal was given, or that the car was started without signal. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 668-672, 674; Dec. Dig. § 267.*] 12. NEW TRIAL (§ 42*)-GROUNDS-DISQUALIFICATION OF JUROR.

Where defendant street railroad did not move at any time, as authorized by Rev. Laws, c. 176, § 28, to examine a juror under oath, 6. WITNESSES (§ 257*)-REFRESHING MEMORY and the court found that the juror was impar-ADMISSIBILITY OF MEMORANDA. tial, defendant was not entitled to a new trial Where, in an action for injuries to a pas- because the juror had a stale claim for damsenger in alighting from a street car, defend-ages against defendant, of which it had a rec

ord in its office, but of which defendant's attorney had no knowledge at the time of the trial. [Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 74-79; Dec. Dig. § 42.*]

January prior to his injury, which occurred in June, he entered into a profitable contract for the preparation of a series of articles on "Economics of Advertising," and that he Exceptions from Superior Court, Middle- was prevented from executing this contract sex County; Patrick M. Keating, Judge. during the summer vacation as he had planAction by John H. Gray against the Bos-ned, because of the injury. The contract and ton Elevated Railway Company. Plaintiff the evidence respecting it were competent. was awarded $1,690 damages, and defend- The plaintiff was entitled to recover as damant brings exceptions, and moves for a new ages compensation not only for the pain and trial. Exceptions overruled, and motion de- suffering endured, but also for the loss of nied. time of the valuable use of which he was

Defendant's fourteenth request to charge deprived. The contract price for writing was as follows:

"The plaintiff, having alleged that the injury was the fault of the defendant, must prove it. If he does not, he cannot recover. The plaintiff must show that a signal to start the car was given by the conductor, or that the car was started by the motorman without signal. This must be shown by the evidence. The plaintiff cannot recover by showing that the car started and nothing Unless evidence is given of negligent starting, the jury must find for defendant." The court modified and gave the instruction as follows:

"The plaintiff must show that a signal to start the car was given by the conductor, or that the car was started by the motorman without signal; but if you believe the testimony introduced by plaintiff you will be warranted in finding either that a signal to start was given by the conductor or that the motorman started the car without receiving a signal."

Frank G. Cook and G. Harvey Hull, both of Boston, for plaintiff. Wilmot R. Evans, Jr., of Boston, for defendant.

RUGG, C. J. This is an action of tort in which the plaintiff seeks to recover damages for injuries received by him while a passenger of the defendant. The question of liability hinges upon the point whether the plaintiff, having given the conductor the proper signal, attemped to alight from the car before it came to a stop, or whether, after the car had stopped in response to his signal, it started again before he had a chance to reach a place of safety on the ground.

[1] 1. The plaintiff was rightly permitted to show the extent of his studies and his special equipment in the department of learning in which he specialized. His skill and experience had some bearing upon the value of his time.

the articles was not recoverable specifically. It was admissible as bearing upon the general damages sustained by him. Sibley v. Nason, 196 Mass. 125, 131, 81 N. E. 887, 12 L. R. A. (N. S.) 1173, 124 Ain. St. Rep 520, 12 Ann. Cas. 938. Failure to write the articles was not too remote. It might have been found as to the plaintiff to have been a direct and immediate result of the injury. Ballou v. Farnum, 11 Allen, 73; Halloran v. N. Y., N. H. & H. R. R. Co., 211 Mass. 132, 97 N. E. 631; Randall v. Peerless Motor Car Co., 212 Mass. 352, and cases cited at 381, 99 N. E. 221.

[4] 3. Evidence to show that the plaintiff received money under a policy of accident insurance properly was excluded. The relations between an insurance company and the plaintiff as its insured had no bearing upon the extent of his injuries, nor upon the defendant's liability. Clark v. Wilson, 103 Mass. 219, 4 Am. Rep. 532; International Trust Co. v. Boardman, 149 Mass. 158, 21 N. E. 239.

[5] 4. There was evidence that the plaintiff was thrown or fell from the car to the street. The defendant offered to show that, while the plaintiff was being picked up, some one who was not a witness to the accident would testify that she heard some noise and somebody said, "It was his own fault." This evidence was excluded rightly. It was the expression of a conclusion or of an opinion, and not the exclamation of an observation. It was not a statement accompanying an act, nor was it a part of the controversy which was under investigation. The case is plainly distinguishable from Hartnett v. McMahan, 168 Mass. 3, 46 N. E. 392, on which the defendant relies.

[6] 5. As tending to show that the street was slippery, the defendant called a foreman of the street department to show that the street where the accident occurred recently had been oiled. The witness testified to the [2, 3] 2. There was evidence tending to fact and date of oiling after refreshing his show that the plaintiff was a professor of recollection from a record which was filed economics in the University of Minnesota, every morning after the oiling. This record that he had made a special study of public was then offered in evidence and excluded. service corporations and had acquired a con- In this there was no error. It does not apsiderable reputation in that branch of politi-pear that the writing had any force beyond cal science. Against the exception of the de- that of a memorandum made by the witness fendant, he was allowed to show that in himself for the information of his superiors.

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