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 [8] But the final decree must be modified measured by the real commercial value of the by a clause overruling the exceptions to, leasehold could not be fixed exactly, but de- and confirming the master's report; and by pended largely on estimated receipts and ex- providing in the third paragraph that the penditures during the period of eviction, and defendant Dunn as executor of the will of profits reasonably to be anticipated are when Nelson shall be charged severally and not ascertained to be considered in the assess- jointly with the codefendant in the payment ment. Neal v. Jefferson, 212 Mass. 517, 99 of damages, and that if execution issues N. E. 334, 41 L. R. A. (N. S.) 387, and cases therefor, or for the amount named in the cited; Randall v. Peerless Motor Car Co., fifth paragraph, it is to run against the goods 212 Mass. 352, 381, 99 N. E. 221.

and estate of the deceased in his hands. R. [6, 7] The defendants do not appear to L. C. 171, $$ 1, 5, 7; Id. č. 172, $ 7. question this, but contend generally, that opin- nim v. American Tube Works, 188 Mass. 515, ion evidence of the value of the leasehold | 520, 74 N. E. 680; Lovejoy V. Bailey, 214 during the weeks in question "over and above Mass. 134, 101 N. E. 63. the rent and operating expenses" founded up- The decree when thus modified is affirmed on prior gross receipts and net earnings was with costs of the appeal. inadmissible. The objectionable features of Ordered accordingly.

Von Ar

(216 Mass. 90)

proval of the mayor is affixed thereto. In 1913 HART et al. v. CHATTERTON.

the appropriation for school supplies was made

in a gross sum, but the recommendations of the (Supreme Judicial Court of Massachusetts.

school committee only included a request for Bristol. Oct. 29, 1913.)

$1,000 for school furniture. Held that, as man. TRIAL ($ 14*)—STRIKING CASE FROM CALENDAE damus will not be granted to compel' the per-RESTORATION-DISCRETION.

formance of a duty dependent in a substantial Where the court in 1901 ordered a case degree upon the exercise of judgment and disstricken, to be restored only on order of the cretion, the mayor could not be required to apcourt, it was within the discretion of the court prove a contract by the school committee call. to grant plaintiffs' application to restore it to the ing for the purchase of school furniture amountlist and have the same tried in 1912.

ing to more than $1,000, even though the school [Ed. Note. For other cases, see Trial, Cent. on hand to pay for the same; it being appar

committee then had more than sufficient funds Dig. § 33; Dec, Dig. § 14.*]

ent that such purchase would cause a subseExceptions from Superior Court, Bristol quent deficiency. County; John B. Ratigan, Judge.

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

$$ Action on contract to recover merchandise Cent. Dig. && 170-176; Dec. Dig. $ 79.*] by Albert T. Hart and others against George Report from Supreme Judicial Court, Suf. Chatterton. Plaintiffs' motion to have the folk County. case restored to the docket of pending caus- Petition by Hugh McLean for writ of man. es having been granted, defendant brings damus against John J. White, as Mayor. On exceptions. Overruled.

report. Petition dismissed. Arthur S. Phillips and Benjamin Ferring, C. T. Callahan, of Holyoke, for petitioner. both of Fall River, for plaintiffs. S. W. Thos. J. O'Connor, of Holyoke, and Wm. H. Ashton, of Fall River, for defendant.

McClintock, of Springfield, for respondent.

PER CURIAM. The record shows that in

RUGG, C. J. This is a petition for a writ 1901 in this case the entry was made: “Or- of mandamus to compel the mayor of the dered to be stricken from the list of pending city of Holyoke to affix his approval to a cases and to be restored only on order of contract executed with the plaintiff by the court.” It was restored to the list in 1912, school committee of that city. The contract tried, and is now ready for final judgment. provides for the purchase of desks and chairs The defendant in substance excepted to the ju- for a school building at a cost of $1,885.50. risdiction and right of the court to restore The material facts are that the school comthe case to the active list. The order was mittee in making up the annual estimate for not a judgment of dismissal, as in Karrick v. expenses for schools for the current year did Whitmore, 210 Mass. 578, 97 N. E. 92, but a not have in mind the furniture in question, striking from the pending list, subject in although fairly needed for the accommodaterms to the right of the court to order its tion of pupils, and later sent a communicarestoration at any time. Such restoration tion to the board of aldermen (which is the was within the discretion of the court and legislative body of the city) asking a suffithere is nothing to show that it was abused. cient appropriation for this purpose. That The case is governed by Burnham v. Has request has not been acted upon. Later the kell, 213 Mass. 386, 100 N. E. 639.

school committee voted to award the contract Exceptions overruled.

for this furniture to the petitioner. The

mayor vetoed this vote when presented to (216 Mass. 62)

him for approval and thereupon the school MCLEAN V. WHITE, Mayor.

committee passed it over his veto by the (Supreme Judicial Court of Massachusetts. requisite majority. The contract in question Suffolk. Oct. 28, 1913.)

then was prepared and executed, but for its 1. MUNICIPAL CORPORATIONS (8 986*) - AP- validity the approval of the mayor is rePROPRIATIONS FOR SCHOOL SUPPLIES.

quired. This he refuses, on the ground that As Holyoke Charter (St. 1896, c. 438)§ 47, there is no sufficient appropriation. The requires the school committee to furnish the mayor annually, in January, an itemized and unexpended balance of the appropriation for detailed estimate of the things needed for its school supplies, at the time the school comdepartment during the ensuing financial year, mittee passed the vote and signed the conan appropriation by the city of a gross sum for tract, was largely in excess of the amount school purposes, without itemization, must be construed as based upon the itemized estimates required to pay for the furniture, but it will of the school committee, and as for the specific be needed in large part for the absolutely purposes therein pointed out.

necessary school supplies for the year, and if [Ed. Note.-For_other cases, see Municipal the expense of this contract is charged Corporations Cent.Dig. 8 2014; Dec.Dig. $ 986.*] against that account the appropriation al2. MANDAMUS (8 79*)-RIGHT TO MANDAMUS- ready made will be insufficient for the needs DISCRETION. Holyoke Charter (St. 1896, c. 438) § 49, of the year by $1,200 to $1,400.

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

102 N.E.-59


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 ex

(216 Mass. 71) penditure in excess of that sum, there is strong ground for the argument that, al

COAKLEY v. COAKLEY. though the appropriation actually made by (Supreme Judicial Court of Massachusetts. the city government was under the single

Worcester. Oct. 22, 1913.) heading "school supplies," it did not exceed, 1. MASTER AND SERVANT (8 25034, New, vol. 16 for any subdivision, the amount indicated in


ACT-DEPENDENTS. the estimate of the school committee, and

Under Workmen's Compensation Act (St. hence a contract for furniture larger than 1911, c. 751, pt. 2) $ 7, providing that a child unthe detailed estimate originally submitted by der the age of 18 years, where there is no surthe school committee would be in excess of to be dependent, a daughter of the deceased by

viving parent, shall be conclusively presumed the appropriation voted. But it is not nec- a former wife, who was living with her father essary to decide this point, because upon and his second wife at the time of his death, is another ground the plaintiff cannot prevail. conclusively presumed to be dependent. [2] An officer can be compelled to perform 2. MASTER AND SERVANT ($ 25034, New, vol.

16 Key-No. Series)-WORKMEN'S COMPENSAhis duty by exercising his discretion, although TION ACT-DIVISION OF BENEFITS. he will not be commanded to exercise it in a Under Workmen's Compensation Act (St. particular way. Crocker v. Justices of Supe- 1911, c: 751, pt. 2), § 7, providing that the wife

and children of a deceased employé are conclurior Court, 208 Mass. 162, 94 N. E. 369, 21 sively presumed to be dependent under certain Ann. Cas. 1061. But it is a familiar princi- circumstances, and if there are several dependple that the writ of mandamus will not be ent children they shall share equally, and that granted to compel the performance of a spe- of fact, and in such other cases, if there shall

in all other cases dependency shall be a question

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benefit shall be divided equally among them, aley and she has come to an agreement with child of the deceased by a former wife, who is the insurer, which has been approved by the presumed to be dependent, is entitled to share in the benefits equally with the surviving wife, Industrial Accident Board, for the payment since the section as a whole indicates a purpose to be made by it on account of his death. A to make an equal division, even though, tech- guardian has been appointed of the child nically speaking, the provision therefor applies Marion, who by law is charged with the only in cases where the dependency is not presumed, or where the presumed dependents are custody and tuition of the ward, she having all children under 18.

no father or mother living. R. L. C. 145, $ 3. MASTER AND SERVANT (S $712, New, vol. 16 4; St. 1904, c. 163. The widow and adminis

Key-No. Series)-WORKMEN'S 'COMPENSATION tratrix claims that as matter of law under ACT—CONSTRUCTION.

The Workmen's Compensation Act (St. the act the guardian is entitled to nothing 1911, c. 751) should be broadly interpreted, in and she refuses to pay anything to her for harmony with its main aim of providing support the support of the ward. for those dependent upon a deceased employé. 4. MASTER AND SERVANT ($ 25094, New, vol.

[1, 2] The material provisions of the act 16 Key-No. Series)-WORKMEN'S COMPENSA

are found in St. 1911, c. 751, part 2, § 7, in TION ACT-DEPENDENTS—“SURVIVING DE- these words: PENDENT PARENT"_"PARENT."

"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

"(a) A wife upon a husband with whom word "parent" commonly means the lawful father or mother by blood, and not a step father she lives at the time of his death. or mother, or one standing in loco parentis.

(b) [Ed. Note.-For other definitions, see Words “(c) A child or children under the age of and Phrases, vol. 6, pp. 5172-5174.]

eighteen years

upon the parent 5. PARENT AND CHILD ($ 14*)-STEPCHILDREN. with whom he is or they are living at the

The voluntary assumption of the obligations time of the death of such parent, there beof parenthood toward the children of a spouse ing no surviving dependent parent. In case by another marriage is favored by the law.

[Ed. Note.-For other cases, see Parent and there is more than one child thus dependent, Child, Cent. Dig. Ss 152–159; Dec. Dig. $ 14.*] the death benefit shall be divided equally Appeal from Superior Court, Worcester

among them.

"In all other cases questions of dependenCounty.

Petition of Marion B. Coakley, by her cy, in whole or in part, shall be determined

Petition of Marion B. Coakley, by her in accordance with the fact, as the fact may guardian, Margaret C. Thornton, against Nora be at the time of the injury; and in such Coakley, as administrator of the estate of John C. Coakley, deceased, for the division other cases if there is more than one person John C. Coakley, deceased, for the division wholly dependent, the death benefit shall be of the payments received by the administra

divided equally among them, and persons trix for the death of the said John C. Coakley under the provisions of the Workmen's partly dependent, if any, shall receive no Compensation Act. From a decree in favor part thereof; if there is no one wholly deof the respondent, entered by the superior pendent and more than one person partly decourt upon the decision of the Industrial Ac- pendent, the death benefit shall be divided cident Board, the petitioner appeals.

among them according to the relative extent Re

of their dependency.” versed, with directions.

It is plain from this provision that the Marvin M. Taylor and Taylor & Taylor, all widow is conclusively presumed to be wholly of Worcester, for appellant. W. Arthur Gar- dependent. It is equally plain that the child rity, T. Hovey Gage, and Frank F. Dresser, of the former marriage also is conclusively all of Worcester, for respondent.

presumed to be wholly dependent, because in

her case there is no surviving dependent parRUGG, C. J. This is a proceeding under ent. This language as construed in the Mc

a the Workmen's Compensation Act. The ques- Nicol Case, 102 N. E. 697, means that the tion at issue is the division of the payments children of the deceased who are the children due to the dependents of John C. Coakley, of the widow are not conclusively presumed who received personal injuries arising out of to be dependent, because as to them there is and in the course of his employment and a surviving parent. Analyzing the act with who died as a result. He left a widow, Nora, technical nicety, probably the last paragraph with whom as wife he was living at the time of section 7, above quoted, does not apply of his decease, two minor children who were to the case at bar because it relates to "all children of Nora, a child of this marriage other cases," and "such other cases,” which born since his death, and another child must mean cases other than those specifically named Marion, by an earlier marriage. All provided for in paragraphs (a), (b) and (c) the children are of tender years. The child of the section. It is true that no express Marion has no property of her own and was provision is made for a case like the present living with her father's family, entirely sup- where there is more than one person beside ported by him. The widow was appointed orphaned children conclusively presumed to administratrix of the estate of John C. Coak-be wholly dependent.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes [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 Decree reversed. the payments equally among those conclusive- New decree to be entered in accordance ly presumed to be wholly dependent. This is with this decision, manifest by express words when there are two or more orphaned children. Equal division is provided also when, in case there is

(216 Mass. 51) no one conclusively presumed to be wholly PIGEON v. EMPLOYERS' LIABILITY ASdependent and dependency is determined as

SUR, CORPORATION, Limited. a fact, more than one is found to be wholly (Supreme Judicial Court of Massachusetts. dependent. This interpretation may be sup

Hampden. Oct. 22, 1913.) ported as consonant with what reasonably 1. MASTER AND SERVANT ($ 25034, New, vol.

16 Key-No. Series)-INJURIES TO SERVÁNTmay be supposed to have been the intent of

ACTIONS – FINDING OF INDUSTRIAL ACCIthe legislature. When there are left a parent

DENT BOARD. and children, who are the issue of the sur- A finding by the Industrial Accident Board, viving dependent parent and the deceased, under the Workmen's Compensation Act (St. the natural instincts as well as the legal obli- | the finding of' a judge or jury.

1911, c. 751), stands on the same footing as gation combine to assure support to the 2. MASTER AND SERVANT (8 88*)-INJURIES TO children in case they need it. But in case SERVANT-EMPLOYMENT OF MASTER. of stepchildren there is neither the parental

In determining whether, in doing a particaffection nor legal duty.

The legislature ufanisa original master one of the person to whom

ular act, the person well might leave the support of children he was furnished, the test is whether the act to their parent by blood and hesitate to leave was done in a business of which the person is it to anyone else when there is no parent by in control as a proprietor, so that he can

. blood.

[Ed. Note.-For other cases, see Master and [4, 5] It is argued that the widow is en. Servant, Cent. Dig. 88 144-151; Dec. Dig. $ titled to the whole sum on the ground that 88.*] she stands in loco parentis. These words are 3. MASTER AND SERVANT ($ 25034, New, vol. not found in the act. The voluntary assump


ACTIONS-EVIDENCE-SUFFICIENCY. tion of the obligations of parenthood toward

In a proceeding under the Workmen's children of a spouse by another marriage is Compensation Act (St. 1911, c. 751) to recover one favored by the law. They may be in- for the wrongful death of a servant, evidence cluded under the descriptive word “family.” held sufficient to show that at the time he met

his death he was in the service of his ordiMulhern v. McDavitt, 16 Gray, 404. But

nary master, and not that of the city, for whom there is nothing in the record at bar to show the master had sent him to work. that the widow has assumed any legal obli- 4. MASTER AND SERVANT (§ 88*)-INJURIES TO gation to support the stepdaughter. On the

SERVANT-DEFENSES. other hand it is agreed that she declines to performance of his duties, the fact that he in

Where a servant is injured while in the contribute anything to the guardian on whom tended, at the end of that particular duty, to by law is cast the duty of her care. It would do something else, not within the scope of 'his be a hard thing to say that the words "sur-employment, is no defense; and where plain

tiff's intestate was killed by the running off of viving dependent parent” could have been a horse, which, in the proper performance of intended by the legislature to include one his duties, he was taking to water, the fact that standing in loco parentis to a child, when he intended to later drive the horse about his

own business is no defense. the effect of such construction would be to

[Ed. Note. For other cases, see Master and debar such child, an orphan in fact, from servant, Cent. Dig. $$ 144-151; Dec. Dig. 8 the benefit of a conclusive presumption which 88.*] otherwise the act establishes in its favor. 5. MASTER AND SERVANT ($ 25034, New, vol. Parent commonly means the lawful father or 16 Key-No. Series)-INJURIES TO SERVANT

WORKMEN'S COMPENSATION ACT-PROCEEDmother by blood. It does not lend itself read

INGS-APPEAL. ily to a significance so broad as to include

Workmen's Compensation Act (St. 1911, stepfather or stepmother, or anyone standing c: 751, pt. 3) SS 7, 10, as amended by St. 1912 in loco parentis. The use of such other c. 571, SS 12, 13, provide that the Commission

on Arbitration shall make such investigations words in common speech of itself has some

as it shall deem necessary, the decision, togethtendency to indicate a different meaning. The er with the evidence submitted before it, and arrangement of the words "parent" and its findings of fact and law, and any other mat"child” in the present act points to the con- filed with the Industrial Accident Board, and

ters pertinent to the questions arising, being sanguineous relation and not to that by affini- that if a claim for review is filed the board ty. That it does not include one standing in shall hear the parties and the evidence, and the place of a parent seems to follow from may revise the decision of the committee in the circumstance that there is no continuing for further findings of fact, and shall file its

whole or in part, or may refer the matter back obligation on one who has assumed such a decision with the records, while section 1 as

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