Slike stranica

well as at law, and as the defendants acted] such evidence were pointed out in Cochrane with a common purpose to dispossess the v. Com., 175 Mass. 299, 56 N. E. 610, 78 Am. plaintiff, damages can be assessed against St. Rep. 491. But where the witness shows them either jointly or severally by appropri- the necessary knowledge and experience, orate decrees. O'Brien v. Murphy, 189 Mass. dinarily the admission or rejection of the 353, 357, 75 N. E. 700; Von Arnim v. Amer- testimony is within the discretion of the ican Tube Co., 188 Mass. 515, 74 N. E. 680; judge presiding at the trial. Howland v. Ginn v. Almy, 212 Mass. 486, 99 N. E. 276. Westport, 172 Mass. 373, 52 N. E. 522; Con[5] Nor does error appear at the trial of ness v. Com., 184 Mass. 541, 544, 69 N. E. the merits. The evidence is not reported and 341; Lakeside Mfg. Co. v. Worcester, 186 under the judge's findings all the material Mass. 552, 560, 72 N. E. 81; Sargent v. Merriallegations were proved. The case was then mac, 196 Mass. 171, 81 N. E. 970, 11 L. R. A. referred to a master to assess damages, and (N. S.) 996, 124 Am. St. Rep. 528; Fourth the defendants' exceptions to the admission Nat. Bank v. Com., 212 Mass. 66, 98 N. E. of certain opinion evidence offered by the 686. The master reports and their evidence plaintiff as to the value of the leasehold re- shows, that from large experience each of main. The leased premises consisted of a the experts was familiar with the managetheater adapted for the production of motion ment and supervision of theaters presenting pictures and illustrated songs, or pictorial the same class of entertainment in various vaudeville. The master reports, that through localities, as well as with the size, seating the defendants' tortious acts the plaintiff capacity and location of the plaintiff's propwas dispossessed and deprived of a profitable erty. The defendants had excepted to the business for a period slightly exceeding five admission in evidence of the gross receipts weeks before possession was restored. To as- and net profits of the plaintiff company to sess damages on the basis of the difference show the nature and magnitude of the busibetween the actual value of the leasehold as ness during prior years, although this excepan estate for a term of years which should tion to the report has not been argued. It have been enjoyed, and the rent reserved, as clearly was competent. Neal v. Jefferson, in Riley v. Hale, 158 Mass. 240, 33 N. E. 491, 212 Mass. 517, 523, 99 N. E. 334, 41 L. R. A. would not afford full compensation. The ex- (N. S.) 387; Allison v. Chandler, 11 Mich. isting business of the plaintiff which was 544. The master doubtless was of opinion connected and combined with the leasehold that from their qualifications the testimony had been deliberately and persistently inter- possibly might guide and aid him in the just fered with to the point of absolute suspen- ascertainment and sound estimation of the sion and temporary extinction by the de- actual damages the plaintiff had suffered. fendants, who must be deemed to have con- The question is close, and not free from diftemplated the natural and direct results of ficulty. While the master would have ruled their conduct. Hill v. Winsor, 118 Mass. 251; more judiciously if he had rejected the eviFrench v. Connecticut River Paper Co., 145 dence, it cannot be said positively there were Mass. 261, 14 N. E. 113; Weston v. Boston & no aspects of the entire testimony which tendMaine R. R., 190 Mass. 298, 76 N. E. 1050, ed to support his view, or that his discretion 4 L. R. A. (N. S.) 569, 112 Am. St. Rep. 330, was so grossly exercised in the plaintiff's fa5 Ann. Cas. 825; Hanson & Parker v. Wit- vor as to render his decision plainly wrong. tenberg, 205 Mass. 319, 327, 328, 91 N. E. Conness v. Com., 184 Mass. 541, 544, 69 N. E. 383. The plaintiff does not claim compensa- 341. The order overruling the demurrer, is tion for impairment of the good will which affirmed. is distinct from profits. Its damages even if measured by the real commercial value of the leasehold could not be fixed exactly, but depended largely on estimated receipts and expenditures during the period of eviction, and profits reasonably to be anticipated are when ascertained to be considered in the assessment. Neal v. Jefferson, 212 Mass. 517, 99 N. E. 334, 41 L. R. A. (N. S.) 387, and cases cited; Randall v. Peerless Motor Car Co., 212 Mass. 352, 381, 99 N. E. 221.

[6, 7] The defendants do not appear to question this, but contend generally, that opinion evidence of the value of the leasehold during the weeks in question "over and above the rent and operating expenses" founded upon prior gross receipts and net earnings was inadmissible. The objectionable features of

[8] But the final decree must be modified by a clause overruling the exceptions to, and confirming the master's report; and by providing in the third paragraph that the defendant Dunn as executor of the will of Nelson shall be charged severally and not jointly with the codefendant in the payment of damages, and that if execution issues therefor, or for the amount named in the fifth paragraph, it is to run against the goods and estate of the deceased in his hands. L. c. 171, §§ 1, 5, 7; Id. c. 172, § 7. Von Arnim v. American Tube Works, 188 Mass. 515, 520, 74 N. E. 680; Lovejoy v. Bailey, 214 Mass. 134, 101 N. E. 63.


The decree when thus modified is affirmed with costs of the appeal. Ordered accordingly.

(216 Mass. 90)

HART et al. v. CHATTERTON. (Supreme Judicial Court of Massachusetts.

Bristol. Oct. 29, 1913.)


Where the court in 1901 ordered a case stricken, to be restored only on order of the court, it was within the discretion of the court to grant plaintiffs' application to restore it to the

list and have the same tried in 1912.

[Ed. Note.-For other cases, see Trial, Cent. Dig. 33; Dec. Dig. § 14.*]

Exceptions from Superior Court, Bristol County; John B. Ratigan, Judge.

Action on contract to recover merchandise by Albert T. Hart and others against George Chatterton. Plaintiffs' motion to have the case restored to the docket of pending causes having been granted, defendant brings exceptions. Overruled.

Arthur S. Phillips and Benjamin Ferring, both of Fall River, for plaintiffs. S. W. Ashton, of Fall River, for defendant.

PER CURIAM. The record shows that in 1901 in this case the entry was made: "Ordered to be stricken from the list of pending cases and to be restored only on order of court." It was restored to the list in 1912, tried, and is now ready for final judgment. The defendant in substance excepted to the jurisdiction and right of the court to restore the case to the active list. The order was not a judgment of dismissal, as in Karrick v. Whitmore, 210 Mass. 578, 97 N. E. 92, but a striking from the pending list, subject in terms to the right of the court to order its restoration at any time. Such restoration was within the discretion of the court and there is nothing to show that it was abused. The case is governed by Burnham v. Haskell, 213 Mass. 386, 100 N. E. 639. Exceptions overruled.

(216 Mass. 62)

MCLEAN v. WHITE, Mayor. (Supreme Judicial Court of Massachusetts. Suffolk. Oct. 28, 1913.)

1. MUNICIPAL CORPORATIONS (§ 986*) - APPROPRIATIONS FOR SCHOOL SUPPLIES. As Holyoke Charter (St. 1896, c. 438) § 47, requires the school committee to furnish the mayor annually, in January, an itemized and detailed estimate of the things needed for its department during the ensuing financial year, an appropriation by the city of a gross sum for school purposes, without itemization, must be construed as based upon the itemized estimates of the school committee, and as for the specific purposes therein pointed out.

[Ed. Note. For other cases, see Municipal Corporations Cent.Dig. § 2014; Dec. Dig. § 986.*] 2. MANDAMUS (§ 79*)-RIGHT TO MANDAMUSDISCRETION.

proval of the mayor is affixed thereto. In 1913 the appropriation for school supplies was made in a gross sum, but the recommendations of the school committee only included a request for $1,000 for school furniture. Held that, as manformance of a duty dependent in a substantial damus will not be granted to compel the perdegree upon the exercise of judgment and discretion, the mayor could not be required to approve a contract by the school committee calling for the purchase of school furniture amounting to more than $1,000, even though the school committee then had more than sufficient funds on hand to pay for the same; it being apparent that such purchase would cause a subsequent deficiency.

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

Cent. Dig. §§ 170-176; Dec. Dig. § 79.*]

Report from Supreme Judicial Court, Suffolk County.

Petition by Hugh McLean for writ of mandamus against John J. White, as Mayor. On report. Petition dismissed.

C. T. Callahan, of Holyoke, for petitioner. Thos. J. O'Connor, of Holyoke, and Wm. H. McClintock, of Springfield, for respondent.

RUGG, C. J. This is a petition for a writ of mandamus to compel the mayor of the city of Holyoke to affix his approval to a contract executed with the plaintiff by the school committee of that city. The contract provides for the purchase of desks and chairs for a school building at a cost of $1,885.50. The material facts are that the school committee in making up the annual estimate for expenses for schools for the current year did not have in mind the furniture in question, although fairly needed for the accommodation of pupils, and later sent a communication to the board of aldermen (which is the legislative body of the city) asking a sufficient appropriation for this purpose. That request has not been acted upon. Later the school committee voted to award the contract for this furniture to the petitioner. The mayor vetoed this vote when presented to him for approval and thereupon the school committee passed it over his veto by the requisite majority. The contract in question then was prepared and executed, but for its validity the approval of the mayor is required. This he refuses, on the ground that there is no sufficient appropriation. The unexpended balance of the appropriation for school supplies, at the time the school committee passed the vote and signed the contract, was largely in excess of the amount required to pay for the furniture, but it will be needed in large part for the absolutely necessary school supplies for the year, and if the expense of this contract is charged against that account the appropriation already made will be insufficient for the needs of the year by $1,200 to $1,400.

Holyoke Charter (St. 1896, c. 438) § 49, provides that no expenditures shall be made or [1] All parties are acting in good faith. liability incurred by or in behalf of the city The governing provisions of the charter of until an appropriation has been duly voted. the city of Holyoke are found in St. 1896, c. Section 52 provides that no contract by a city board, such as the school committee, shall be 438. Sections 29 and 32 provide that the deemed to be made or executed until the ap-management and control of the public schools

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes


shall be vested in the school committee,, degree upon the exercise of judgment and which shall exercise the powers and dis- sagacity. The opinion of the court upon charge the duties imposed by law upon school such a question is not to be substituted committees. The school committee, among thus for that of a public officer acting in other boards, is required by section 47 to good faith. French v. Jones, 191 Mass. 522, furnish to the mayor annually in January 532, 78 N. E. 118, 7 L. R. A. (N. S.) 525; an itemized and detailed estimate of the Deehan v. Johnson, 141 Mass. 23, 6 N. E. moneys needed for its department during the 240. This present case does not present a ensuing financial year. A board of appor- mere ministerial function into the doing of tionment composed of three city officers is which no element of sound discretion enters, directed, after examination, to submit the as in Braconier v. Packard, 136 Mass. 50. It same with an itemized and detailed appor- goes further and requires the exercise of tionment to the legislative board which then practical wisdom in the administration of votes the appropriations. Section 49 pro- the affairs of the city. While it is conceivvides that "no sum appropriated for a specif- able that cases might arise where refusal by ic purpose shall be expended for any other a mayor to sign a contract under charter purpose, and no expenditure shall be made provisions like these might present a proper nor liabilities incurred by or in behalf of instance for the issuance of a writ of mandathe city until an appropriation has been mus, the case at bar is not of that class. It duly voted * sufficient to meet such is a plain provision of the city charter that expenditure or liability, together with all the contract in question shall not be valid prior unpaid liabilities which are payable out until it receives the approval of the respondof such appropriation," with exceptions not ent as mayor. Approval implies direct afnow material. Section 52 provides that no firmative sanction. It is clear that the maycontract like that here in question "shall be or does not approve in this sense the contract deemed to have been made or executed until in question. It cannot be said that his rethe approval of the mayor is affixed thereto." fusal to approve it is whimsical or capricious, The appropriation for "school supplies" for nor that the exercise of the power of refusal 1913 was the gross sum of $18,500, without to approve is being abused or perverted by further itemization. It is apparent, however, colorable pretenses. It well may be regarded from the requirement that a detailed esti- as not in accordance with sound municipal mate be presented in January by the school policy, good judgment, nor right principles department of moneys needed by it, and the of conducting public business to charge an further obligation resting upon the board of extraordinary expenditure of this sort and apportionment to examine such estimates size, which was not thought of at the time and submit them to the board of aldermen the estimates were made and votes passed, with their own recommendations, that the against an appropriation needed for ordinary appropriations as finally made were based expenses of a department, even though not upon the original detailed estimates of the yet exhausted by contracts actually made. school committee and were for the specific There is ample ground for the belief that purposes therein pointed out. In the detailed such a contract would be in direct violation estimate submitted by the school committee of the spirit of section 49 of the charter. for the year 1913, under the general heading Under these circumstances the petition for "school supplies," made up of several sepa- a writ of mandamus ought to be refused. rate items, $1,000 was asked for furniture. Petition dismissed. The contract in question calling for an expenditure in excess of that sum, there is strong ground for the argument that, although the appropriation actually made by the city government was under the single heading "school supplies," it did not exceed, for any subdivision, the amount indicated in the estimate of the school committee, and hence a contract for furniture larger than the detailed estimate originally submitted by the school committee would be in excess of the appropriation voted. But it is not necessary to decide this point, because upon another ground the plaintiff cannot prevail. [2] An officer can be compelled to perform his duty by exercising his discretion, although he will not be commanded to exercise it in a particular way. Crocker v. Justices of Superior Court, 208 Mass. 162, 94 N. E. 369, 21 Ann. Cas. 1061. But it is a familiar principle that the writ of mandamus will not be granted to compel the performance of a spe


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(216 Mass. 71)

(Supreme Judicial Court of Massachusetts.
Worcester. Oct. 22, 1913.)
MASTER AND SERVANT (§ 25034, New, vol. 16


Under Workmen's Compensation Act (St. 1911, c. 751, pt. 2) § 7, providing that a child under the age of 18 years, where there is no surviving parent, shall be conclusively presumed to be dependent, a daughter of the deceased by a former wife, who was living with her father and his second wife at the time of his death, is conclusively presumed to be dependent. 2. MASTER AND SERVANT (§ 2504, New, vol. 16 Key-No. Series)-WORKMEN'S COMPENSATION ACT-DIVISION OF BENEFITS.


1911, c. 751, pt. 2) § 7, providing that the wife Under Workmen's Compensation Act (St. and children of a deceased employé are conclusively presumed to be dependent under certain circumstances, and if there are several dependent children they shall share equally, and that in all other cases dependency shall be a question of fact, and in such other cases, if there shall

benefit shall be divided equally among them, a child of the deceased by a former wife, wno is presumed to be dependent, is entitled to share in the benefits equally with the surviving wife. since the section as a whole indicates a purpose to make an equal division, even though, technically speaking, the provision therefor applies only in cases where the dependency is not presumed, or where the presumed dependents are all children under 18.

3. MASTER AND SERVANT (§ 872, New, vol. 16 Key-No. Series)-WORKMEN'S COMPENSATION


The Workmen's Compensation Act (St. 1911, c. 751) should be broadly interpreted, in harmony with its main aim of providing support for those dependent upon a deceased employé. 4. MASTER AND SERVANT (§ 25034, New, vol. 16 Key-No. Series)-WORKMEN'S COMPENSATION ACT-DEPENDENTS "SURVIVING DEPENDENT PARENT"-"PARENT.'

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ley and she has come to an agreement with the insurer, which has been approved by the Industrial Accident Board, for the payment to be made by it on account of his death. A guardian has been appointed of the child Marion, who by law is charged with the custody and tuition of the ward, she having no father or mother living. R. L. c. 145, § 4; St. 1904, c. 163. The widow and administratrix claims that as matter of law under the act the guardian is entitled to nothing and she refuses to pay anything to her for the support of the ward.

[1, 2] The material provisions of the act are found in St. 1911, c. 751, part 2, § 7, in these words:

"The following persons shall be conclusiveThe daughter of a deceased employé by a former wife is a child who has no "surviving de-ly presumed to be wholly dependent for suppendent parent," even though she was living in port upon a deceased employé : his family at the time of his death, since the word "parent" commonly means the lawful father or mother by blood, and not a step father or mother, or one standing in loco parentis.

[Ed. Note.-For other definitions, see Words and Phrases, vol. 6, pp. 5172-5174.] 5. PARENT AND CHILD (§ 14*)-STEP CHILDREN. The voluntary assumption of the obligations of parenthood toward the children of a spouse by another marriage is favored by the law.

[Ed. Note.-For other cases, see Parent and Child, Cent. Dig. §§ 152-159; Dec. Dig. § 14.*]

Appeal from Superior Court, Worcester County.

Petition of Marion B. Coakley, by her guardian, Margaret C. Thornton, against Nora Coakley, as administrator of the estate of John C. Coakley, deceased, for the division of the payments received by the administraley under the provisions of the Workmen's Compensation Act. From a decree in favor of the respondent, entered by the superior court upon the decision of the Industrial Accident Board, the petitioner appeals. Reversed, with directions.

trix for the death of the said John C. Coak

Marvin M. Taylor and Taylor & Taylor, all of Worcester, for appellant. W. Arthur Garrity, T. Hovey Gage, and Frank F. Dresser, all of Worcester, for respondent.

RUGG, C. J. This is a proceeding under the Workmen's Compensation Act. The question at issue is the division of the payments due to the dependents of John C. Coakley, who received personal injuries arising out of and in the course of his employment and who died as a result. He left a widow, Nora, with whom as wife he was living at the time of his decease, two minor children who were children of Nora, a child of this marriage born since his death, and another child named Marion, by an earlier marriage. All the children are of tender years. The child Marion has no property of her own and was living with her father's family, entirely supported by him. The widow was appointed administratrix of the estate of John C. Coak

"(a) A wife upon a husband with whom she lives at the time of his death. “(b)



* * *

"(c) A child or children under the age of eighteen years upon the parent with whom he is or they are living at the time of the death of such parent, there being no surviving dependent parent. In case there is more than one child thus dependent, the death benefit shall be divided equally among them.

"In all other cases questions of dependenin accordance with the fact, as the fact may cy, in whole or in part, shall be determined be at the time of the injury; and in such other cases if there is more than one person wholly dependent, the death benefit shall be divided equally among them, and persons partly dependent, if any, shall receive no part thereof; if there is no one wholly dependent and more than one person partly dependent, the death benefit shall be divided among them according to the relative extent of their dependency."

It is plain from this provision that the widow is conclusively presumed to be wholly dependent. It is equally plain that the child of the former marriage also is conclusively presumed to be wholly dependent, because in her case there is no surviving dependent parent. This language as construed in the McNicol Case, 102 N. E. 697, means that the children of the deceased who are the children of the widow are not conclusively presumed to be dependent, because as to them there is a surviving parent. Analyzing the act with technical nicety, probably the last paragraph of section 7, above quoted, does not apply to the case at bar because it relates to "all other cases," and "such other cases," which must mean cases other than those specifically provided for in paragraphs (a), (b) and (c) of the section. It is true that no express provision is made for a case like the present where there is more than one person beside orphaned children conclusively presumed to be wholly dependent.

Decree reversed.

New decree to be entered in accordance with this decision.

(216 Mass. 51)

(Supreme Judicial Court of Massachusetts.
Hampden. Oct. 22, 1913.)

[3] But the act should be interpreted | relation. It may be abandoned at any time. broadly in harmony with its main aim of pro- The result is that there should be an equal viding support for those dependent upon a division between the widow and the daughter deceased employé. Reading the section as a of the earlier marriage who has no surviving whole the purpose appears to be, though dis- parent. closed not in the clearest language, to divide the payments equally among those conclusively presumed to be wholly dependent. This is manifest by express words when there are two or more orphaned children. Equal division is provided also when, in case there is no one conclusively presumed to be wholly dependent and dependency is determined as a fact, more than one is found to be wholly dependent. This interpretation may be supported as consonant with what reasonably may be supposed to have been the intent of the legislature. When there are left a parent and children, who are the issue of the surviving dependent parent and the deceased, the natural instincts as well as the legal obligation combine to assure support to the children in case they need it. But in case of stepchildren there is neither the parental affection nor legal duty. The legislature well might leave the support of children to their parent by blood and hesitate to leave it to anyone else when there is no parent by


[4, 5] It is argued that the widow is entitled to the whole sum on the ground that she stands in loco parentis. These words are not found in the act. The voluntary assumption of the obligations of parenthood toward children of a spouse by another marriage is one favored by the law. They may be included under the descriptive word "family." Mulhern v. McDavitt, 16 Gray, 404. But there is nothing in the record at bar to show that the widow has assumed any legal obligation to support the stepdaughter. On the other hand it is agreed that she declines to contribute anything to the guardian on whom by law is cast the duty of her care. It would be a hard thing to say that the words "surviving dependent parent" could have been intended by the legislature to include one standing in loco parentis to a child, when the effect of such construction would be to

debar such child, an orphan in fact, from the benefit of a conclusive presumption which otherwise the act establishes in its favor. Parent commonly means the lawful father or mother by blood. It does not lend itself readily to a significance so broad as to include stepfather or stepmother, or anyone standing in loco parentis. The use of such other words in common speech of itself has some tendency to indicate a different meaning. The arrangement of the words "parent" and "child" in the present act points to the consanguineous relation and not to that by affinity. That it does not include one standing in the place of a parent seems to follow from the circumstance that there is no continuing obligation on one who has assumed such a


A finding by the Industrial Accident Board, under the Workmen's Compensation Act (St. 1911, c. 751), stands on the same footing as the finding of a judge or jury. 2. MASTER AND SERVANT (§ 88*)-INJURIES TO


In determining whether, in doing a particof his original master or of the person to whom ular act, the injured person was the servant he was furnished, the test is whether the act was done in a business of which the person is in control as a proprietor, so that he can direct the way in which it shall be done.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 144-151; Dec. Dig. § 88.*]


In a proceeding under the Workmen's Compensation Act (St. 1911, c. 751) to recover for the wrongful death of a servant, evidence held sufficient to show that at the time he met

his death he was in the service of his ordi-
nary master, and not that of the city, for whom
the master had sent him to work.

performance of his duties, the fact that he in-
Where a servant is injured while in the
tended, at the end of that particular duty, to
do something else, not within the scope of his
employment, is no defense; and where plain-
tiff's intestate was killed by the running off of
a horse, which, in the proper performance of
his duties, he was taking to water, the fact that
he intended to later drive the horse about his

own business is no defense.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 144-151; Dec. Dig. § 88.*]


Workmen's Compensation Act (St. 1911, c. 751, pt. 3) §§ 7, 10, as amended by St. 1912, c. 571, §§ 12, 13, provide that the Commission on Arbitration shall make such investigations as it shall deem necessary, the decision, together with the evidence submitted before it, and its findings of fact and law, and any other matters pertinent to the questions arising, being filed with the Industrial Accident Board, and that if a claim for review is filed the board shall hear the parties and the evidence, and may revise the decision of the committee in for further findings of fact, and shall file its whole or in part, or may refer the matter back decision with the records, while section 1 as

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