Exceptions sustained, and judgment for de- the Constitution of this commonwealth. By fendant ordered. J. F. O'Connell, of Boston, and E. H. Lane, of Winthrop, for plaintiff. J. E. Begley, of Woburn, and W. Rosnosky, of Boston, for defendant. RUGG, C. J. This is an action of tort to recover compensation for personal injuries caused to the plaintiff by falling on an accumulation of snow and ice on the steps leading from the street to the entrance of the temple of the defendant, a building devoted to religious purposes. The plaintiff was not a member of the congregation but attended the service at the time in question in response to a written invitation from the defendant. The corporate purposes of the defendant, as declared in its charter, are "the maintenance of public worship in accordance with the law and traditional customs of the orthodox Jewish faith and the maintenance of a religious school" and other kindred matters not here material. The verdict for the plaintiff rendered by the jury after full and appropriate instructions, to which no exceptions were taken, establishes in her favor essential facts as to her due care and the causal connection of her injuries with the negligence of the defendant. The single question is whether the written motion for the direction of a verdict for the defendant ought to have been granted. [1] The defendant is a charitable corporation. "No object is more clearly charitable, in the sense of the law, than the advancement of religion and education among an indefinite number of persons." Fairbanks v. Lamson, 99 Mass. 533; Jackson v. Phillips, 14 Allen, 539, 552, 553. A gift for a "church, in the modern sense of that word, as a place for public worship, open to everybody and established for the promotion of religion and morality among all people, whether regularly connected with its ecclesiastical organization or not, is a charity." Chase v. Dickey, 212 Mass. 555, 556, 99 N. E. 410, 411, and many cases there collected. These cases have been followed in more recent decisions. That principle is not now open to discussion. Ripley v. Brown, 218 Mass. 33, 37, 105 Ν. Ε. 637; Crawford v. Nies, 220 Mass. 61, 64, 107 Ν. Ε. 382; Crawford v. Nies, 224 Mass. 475, 485, 113 Ν. E. 408; McNeilly v. First Presbyterian Church, 243 Mass. 331, 338, 137 N. E. 691. [2] These decisions have all been rendered with respect to some denomination of Christians. See, also, Silsby v. Barlow, 16 Gray, 329, 330; Weld v. May, 9 Cush. 181. Freedom to worship the Supreme Being "in the manner and season most agreeable to the dictates of his own conscience"; "provided he doth not disturb the public peace, or obstruct others in their religious worship," is secured by article 2 of the Declaration of Rights of article 11 of the Amendments to the Constitution further provision is made for the security of religious freedom, concluding with the mandate that "all religious sects and denominations, demeaning themselves peaceably, and as good citizens of the commonwealth, shall be equally under the protection of the law; and no subordination of any one sect or denomination to another shall ever be es tablished by law." By article 46 of the Amendments, "no law shall be passed pro hibiting the free exercise of religion." These great guaranties of religious liberty and equality before the law of all religious are not confined to adherents of the Christian religion or to societies and corporations organized for the promotion of Christianity. They extend likewise to the adherents of the ancient religion whose sacred scriptures form a part of the Bible. We are of opinion that Jew as well as Christians are protected by these explicit declarations of religious equality. See in this connection Saltman v. Nesson, 201 Mass. 534, 88 N. E. 3; Bowman v. Secular Society, Ltd., 1917 A. C. 406, 448, 449, 450, 464, 471, 472; Dourne v. Keane, 1919 А. С. 815. [3] A public charitable corporation is not liable for the negligence of its officers or servants. That general principle is established by numerous of our adjudications be ginning with McDonald v. Massachusetts General Hospital, 120 Mass. 432, 21 Am. Rep. 529, all reviewed at length in Roosen v. Peter Bent Brigham Hospital, 235 Mass. 66, 126 Ν. E. 392, 14 A. L. R. 563. It is not necessary to do more than refer to that discussion and decision. That principle has been followed and applied in Kidd v. Massachusetts Homeopathic Hospital, 237 Mass. 500, 130 N. Ε. 55; Foley v. Wesson Memorial Hospital, 246 Mass. 363, 141 Ν. Ε. 113; Young v. Worcester, 253 Mass. 481, 149 N. Ε. 204. That principle and the reasoning on which it rests seem as applicable to a religious as to any other charity. No sound distinction in this particular can be made to the disadvantage of a charity established for the promotion of religion. [4] A distinction has been established as to the degree of duty owed by one who invites another to enter upon his premises solely for the business of the guest and without benefit to the inviter, and by one who invites another to come upon his premises for the business and benefit of the inviter, or of both. It has been held that one who for his own purposes goes upon the premises of the defendant, even though at the latter's invitation, cannot recover for ordinary negligence of the defendant, as, for example, one who attends a wake or a funeral. Hart v. Cole, 156 Mass. 475, 31 N. E. 644; Plummer v. Dill, 156 Mass. 426, 31 N. E. 128, 32 Am. St. Rep. 463; Massaletti v. Fitzroy, 228 Mass, 487, 507, 508, 118 Ν. Ε (161 Ν.Ε.) 168, L. R. A. 1918C, 264, Ann. Cas. 1918B, 1088. If this be treated as applicable to one who attends a service of religious worship in a church or temple open to the public, the plaintiff cannot recover, because such services are for the benefit of those present and not for the benefit of the owner of the edifice in which they are held. A corporation organized as a public charity can hardly gain a benefit or advantage from those who, even at its invitation, come to its premises in order to avail themselves of its purely philanthropic ministrations without the payment of any admission fee, and ought not to be held liable to them for negligence. See Hordern v. Salvation Army, 199 N. Y. 233, 237, 92 N. Ε. 626, 32 L. R. A. (N. S.) 62, 139 Am. St. Rep. 889. [5] The plaintiff relies upon Davis v. Central Congregational Society, 129 Mass. 367, 37 Am. Rep. 368, where a plaintiff was permitted to recover under circumstances similar to those here disclosed. Respecting that decision it was said in Farrigan v. Pevear, 193 Mass. 147, 149, 78 Ν. Ε. 855, 7 L. R. A. (N. S.) 481, 118 Am. St. Rep. 484, 8 Ann. Cas. 1109 (an action for negligence against a public charity): "At the outset it may be said that the case of Davis v. Central Congregational Society, 129 Mass. 367 [37 Am. Rep. 368], on which the plaintiff relies, and that of Smethurst v. Barton Square Church, 148 Mass. 261 [19 Ν. E. 387, 2 L. R. A. 695, 12 Am. St. Rep. 550], are not authorities in his favor, as in those cases the question of the liability of a public charity for the negligence of its servants or agents does not appear to have been raised or decided." Such a statement hardly could have been made without an examination of the original papers. That statement is affirmed on the strength of such examination, now again made. In those circumstances that decision cannot be taken as an authority for the point here raised, which was not there brought to the attention of the court or ruled upon. The court is now free to decide the case accord ing to what appear to be sound principles. Vigeant v. Postal Telegraph Cable Co., 260 Mass., 157 N. E. 651, 53 A. L. R. 867, and cases there collected; Swan v. Justices of the Superior Court, 222 Mass. 542, 545, 111 Ν. Ε. 386. The authority of Davis v. Central Congregational Church, 129 Mass. 367, 37 Am. Rep. 368, was much shaken by what was said in Massaletti v. Fitzroy, 228 Mass. 487, at pages 507, 508, 118 Ν. Ε. 168, L. R. A. 1918C, 264, Ann. Cas. 1918B, 1088. It is to be observed, also, that at the time of the decision of Davis v. Central Congregational Church the conception of a church or religious society as a public charity had not been so firmly and broadly established as now. Less than five years before that decision it was said in Old South Society v. Crocker, 119 Mass. 1, 23, 20 Am. Rep. 299, that "when there is a body, or a definite number of persons, ascertained or ascertainable, clearly pointed out by the terms of the gift to receive, control and enjoy its benefits, it is not a public charity, however carefully and exclusively the trust may be restricted to religious uses alone." In Attorney General v. Federal Street Meeting House, 3 Gray, 1, at page 49, it was said that the purpose of the organization there in question in substance was to constitute a re ligious society for the use of the members and pewholders and not for the public. Concerning this ground for decision in those and similar cases it was said by Chief Justice Knowlton in Sears v. Attorney General, 193 Mass. 551, at page 555, 79 Ν. Ε. 772, 774 (9Ann. Cas. 1200), that it "is not according to the conditions existing in modern churches. Most churches are not only open to the public, but their proprietors seek to promote religion and morality among the people generally," and, referring to those and other earlier cases, "they must be" taken to be "overruled by the later decisions." It follows that the motion for a directed verdict for the defendant ought to have been granted. The defendant's exceptions are sustained and in accordance with G. L. c. 231, § 122, judgment is to be entered for the defendant in the superior court. So ordered. PALMER et al, v. WADSWORTH. Supreme Judicial Court of Massachusetts. Suffolk. May 29, 1928. 1. Appeal and error 977(5)-Trial judge's denial of new trial to defendant will not be disturbed, in absence of showing of abuse of discretion. Whether a new trial should be granted on defendant's affidavits and plaintiffs' counter affidavit, and considered with evidence at the trial, is discretionary with trial judge, and his ruling will not be disturbed, where it does not appear that he was plainly wrong or abused discretion in denying the motion, and no error of law is shown. 2. Brokers 88(3) -Evidence that brokers procured purchaser ready, able, and willing to pay defendant's price held sufficient to take case to jury. In action for brokers' commission for procuring purchaser for realty, in which defendant had equitable interest, evidence that brokers found a purchaser able, ready, and willing to pay price fixed by defendant held sufficient to require submission of case to jury. 3. Brokers61(2)-That defendant beneficiary of trust could not convey legal title to realty held not to defeat brokers' right to commission for procuring purchaser. That defendant who was one of three beneficiaries of trust could not have conveyed legal For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes title to realty in the trust estate held not to defeat brokers' right to commission for procuring purchaser. ready, able, and willing to pay price fixed therefor by defendant, where defendant did not make her performance dependent on trustees' approval, and brokers, when they began dealing with defendant, did not know in whom title stood. 4. Brokers43(1)-Contract to pay brokers reasonable commission to procure purchaser for realty held not within statute (Statute of Frauds). Contract to pay brokers a reasonable compensation for procuring purchaser for realty in which defendant had equitable interest held not within Statute of Frauds (G. L. c. 259, §1 (4), since brokers did not agree to purchase, nor acquire any interest in, the land. Report from Superior Court, Suffolk County; Patrick M. Keating, Judge. Action of contract by Joseph E. Palmer and others against Edna G. Wadsworth. The jury returned verdict for plaintiffs, and defendant's motion for new trial on ground of newly discovered evidence was denied. On report. Judgment for plaintiffs. Roger Brooke Coulter, of Boston, for plain tiffs. Henry W. Packer, of Boston, for defendant, BRALEY, J. This is an action of contract to recover a broker's commission for negotiating a sale at the request of the defendant of certain real property in which she had an equitable interest. The jury returned a verdict for the plaintiffs, and a motion by the defendant for a new trial on the ground of newly discovered evidence having been de nied, the case was reported to this court subject to the following stipulations. If the trial judge was warranted in overruling the motion for a new trial, and in refusing the defendant's requests for rulings, judgment is to be entered on the verdict for the plaintiffs for $2,962.50 and interest from the date of the writ; "if the trial judge was not warranted in overruling the motion for a new trial there is to be a new trial; if the trial judge erred in refusing any of said requests for rulings, and if such refusal injuriously affected the substantial rights of the defend ant there is to be a new trial." [1] The question whether a new trial should be granted on the affidavits filed by the defendant, when read with the plaintiffs' counter affidavit, and considered with the evidence at the trial, was discretionary with the trial judge. It does not appear that he was plainly wrong or abused his discretion in denying the motion, and no error of law is shown. Powers v. Bergman, 210 Mass. 346, 96 Ν. Ε. 674; Commonwealth v. Sacco, 255 Mass. 369, 151 N. E. 839. [2] The remaining questions are whether the plaintiff was entitled to go to the jury on the merits, and if so whether there was error in refusing the defendant's requests for rulings in so far as they were not given. The jury on all the evidence were warranted in finding, that the attention of the plaintiffs, a firm of real estate brokers engaged in selling real property on commission, having been called to the premises referred to in the record as the "Chestnut Hill avenue property" consisting of two apartment houses, Charles C. Palmer, a member of the firm, had an interview with the defendant at his office. The defendant said that the property was for sale and that she was anxious to sell it. The income was approximately $20,000, and the assessed valuation to the best of her knowledge was $100,000, and that the lowest price was $110,000. The defendant then asked him to do all he could to procure a purchaser. The plaintiffs accordingly obtained from one Harry H. Spevack an offer of $110,000, who also gave a check for $1,000 which the plaintiffs had certified by the trust company on which it was drawn; the plaintiff Palmer showed the check to the defendant, who did not accept it, and told her that he had a purchaser for $110,000, and asked her about "signing agreements." The defendant replied that her attorney, Mr. Allen, was away, and that she would sign no agreement until he returned. The defendant later told Palmer to bring the check to Mr. Packer of the firm of Allen, Abbott and Packer, counsellors at law, Mr. Allen being one of the trustees holding the property in trust under the will of P. Briggs Wadsworth, the defendant's father. The check was shown to Mr. Packer and he was informed by Palmer of what had been done in procuring a purchaser. Mr. Packer explained to Palmer that the defendant could not give a legal title to property in which she had no interest except as one of three beneficiaries, and that he could not understand why the defendant should engage Palmer to sell the property for $110,000 when a similar offer had previously been refused. Palmer then saw the defendant and told her that he had earned his commission. But she said, that the trouble was with the price, and that if he could get the proposed purchaser to increase the price to $112,500 she would pay the commission. The plaintiffs thereupon had further negotiations with Spevack, who raised his offer to $112,500. The defendant upon being informed by the plaintiffs of this offer, and asked to make arrangements for drawing the papers, said that she would have to wait for Mr. Allen's return. The plaintiffs informed Spevack of the situation, and Spevack, who had become impatient over the delay, telephoned the defendant. "She asked him if he was the man who was buying the property from her and he said that he was and that he had offered $112,500, and she told him to go to Mr. Allen's office and that For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (161 Ν.Ε.) they would draw the agreement the following time did the defendant make performance day at eleven o'clock." The plaintiff, Palmer, and Spevack, went to Mr. Allen's office the next day but the defendant did not attend. Palmer had a talk with Mr. Allen, who refused to prepare the agreement, and said that the property was not for sale. The check was returned by Palmer to Spevack and all negotiations ended. The defendant after the meeting told Palmer in substance that she could do nothing more. There was evidence as to Spevack's financial resources, and it could be found that he was ready, able and willing to pay the defendant's price of $112,500. The defendant, called as a witness, did not remember her conversation with Spevack over the telephone, but admitted that he might have "told her he stood ready to go ahead and wanted the agreement signed at $112,500," and she also testified that she desired the property sold if it met with the approval of the trustees. The plaintiffs, as Palmer testified, preferred to consummate the sale if possible for $112,500 rather than litigate their claim to a commission on the sale for $110,000. The count on an account annexed was waived, and the court ruled that the plaintiffs could recover only on the first count. The plaintiffs' claim, therefore, rests on an Implied contract to pay them a reasonable compensation or commission, the amount of which is not in dispute, if they found a purchaser able, ready and willing to pay $112, 500, the price fixed by the defendant, and there having been evidence that the plaintiffs had fully performed the contract in accordance with its terms, compensation had been earned. The defendant's first request that on all the evidence the plaintiffs could not recover was rightly refused. Altman v. Goodman, 255 Mass. 44, 45, 150 Ν. Ε. 834; Elliott v. Kazajian, 255 Mass. 459, 461, 152 Ν. Ε. 351. [3, 4] The eighth request that, "in matters of discretion trustees are bound to exercise their own best judgment," and the eleventh request that "the proceeds of any sale of the trust property would be held by the trustees for investment and would not be subject to distribution among the beneficiaries as income," and the twelfth request, that "any agreement for the sale of real estate must be in writing," could not have been given; they were inapplicable to the issue raised. The plaintiffs' contract was with the defendant and not with the trustees. The plaintiffs when the defendant began dealing with them did not know in whom the title to the property stood. The defendant, however, with knowledge of the plaintiff's interview with Mr. Packer, had at her request still promised that if the price were increased a conveyance would be made, and the jury on conflicting evidence could find that at no by her dependent on the approval of the trustees. We are of opinion that on the record compensation was payable even if the defendant could not have conveyed the legal title. Monk v. Parker, 180 Mass. 246, 248, 63 N. E. 793; Klayman v. Silberstein, 253 Mass. 275, 278, 147 N. E. 827. The contract also was not within the Statute of Frauds, G. L. c. 259, § 1 (4). The plaintiffs did not agree to purchase, nor did they acquire any interest in the land. Trowbridge v. Wetherbee, 11 Allen, 361, 364. The result is, that judgment for the plaintiffs is to be entered on the verdict with interest from the date of the writ, and the order denying the motion for a new trial is to stand. So ordered. POWER v. BOSTON ELEVATED R. CO. Suffolk. May 28, 1928. Carriers 302(3)-One pushed by ordinary crowd against car stopped for passengers, and catching hand in opening door, could not recover for injuries. One pushed against car in elevated train stopped for passengers, and injured when his hand was caught between opening door and casing, could not recover for injuries, where there was no evidence that guard knew, or was careless in not knowing, that hand was in place of danger, or that crowd was unusual, and called for special precautions on part of defendant, since accident was mishap of travel not due to negligence. Exceptions from Superior Court, Suffolk County; H. P. Williams, Judge. Action of tort by Thomas F. Power against the Boston Elevated Railroad Company, to recover for personal injuries received by plaintiff while a passenger of defendant at street terminal. Verdict was directed for defendants, and plaintiff brings exceptions. Exceptions overruled. H. R. Donaghue, of Boston, for plaintiff. R. L. Mapplebeck, of Boston, for defendant. WAIT, J. The undisputed evidence showed that the plaintiff was injured because, pushed against a car in a train which had just stopped for passengers, he placed his hand against an opening door and was unable to remove it before it was caught and jammed between the door and the casing into which the door slides in opening. There is no evidence that the guard knew, or was careless in not knowing, that the hand was in a place of danger, and nothing to show that the crowd striving to enter and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes pushing the plaintiff against the door was unusual and called for special precautions on the part of the defendant and its servants. The motion of the door was that usual to opening doors, and would not justify an inference of want of repair or careless handling. The judge was not in error in directing a verdict for the defendants. The accident was a mishap of travel not due to negligence. Exceptions overruled. STUART v. ROCHE. Supreme Judicial Court of Massachusetts. Equity464-Refusal of trial judge to en- Refusal of trial court to give leave to plaintiff to file bill of review held not abuse of discretion, where petition was based on error in court's findings, and merely sought retrial of case, and where it did not appear that substantial justice had not been done or that review would change result. the "Whippet" or any other horse owned by the petitioner through legal proceedings or otherwise." The prayers are for an injunction restraining the respondent from interfering with the plaintiff's possession; and that he be decreed to recognize her title which she asks to have established. The defendant's answer alleged that he had been induced by the plaintiff's fraud to make the exchange, and asked for affirmative relief as provided in Equity Rule 6 (1926). The trial on the merits resulted in a final decree for the defendant filed October 7, 1927. It read as follows: "1. That the defendant was induced to exchange a horse known as the Whippet, which was owned by him, for a horse known as Nicholas J. Hayes, owned by the plaintiff, upon the warranty of the plaintiff that the horse known as Nicholas J. Hayes was a sound horse. "2. That the horse known as Nicholas J. Hayes was not a sound horse, and that the defendant had, and still has, a right to rescind the exchange and repossess himself of the horse known as the Whippet and has elected such right of rescission. "3. That the defendant having restored the horse known as Nicholas J. Hayes to the plaintiff, the plaintiff has no title or ownership in the horse known as the Whippet, but is legally bound to restore said horse known as the Appeal from Superior Court, Norfolk Coun- Whippet to the defendant in order to complete ty; Lummus, Judge. Suit by Alice Stuart against Peter T. Roche. Decree for defendant, and plaintiff brought a petition for leave to file a bill of review. From a decree dismissing the petition, plaintiff appeals. Affirmed. such rescission. "4. That the plaintiff be, and hereby is, ordered and commanded within thirty days after the entry of final decree to deliver said horse known as the Whippet to the defendant to the end that such rescission may be accomplished. "5. That the defendant recover against the plaintiff costs in the sum of fifty-seven dollars Frank D. McCarthy, of Boston, for peti- and that execution issue therefor." tioner. J. Ward Healey and Ralph R. Harris, both of Leominster, and Charles D. Bent, of Gardner, for respondent. BRALEY, J. It appears from the allegations of the original bill that the plaintiff in the original suit was the owner of a horse known as "Nicholas J. Hayes," and that the defendant, who was engaged in the business of buying and selling horses, owned a horse known as "The Whippet." The parties on August 29, 1927, made an even exchange of the horses under which the plaintiff acquired possession and title to the horse "Whippet," and the defendant acquired title and took. possession of the horse "Nicholas J. Hayes." The defendant in the original suit on September 3, 1927, returned the horse he had received and demanded of the plaintiff a return of the horse "Whippet." It is then therein alleged: "That the petitioner [plaintiff] intends to exhibit said Whippet in various horse shows throughout the commonwealth and that the respondent [defendant) has threatened the petitioner that he will prevent her from exhibiting The plaintiff on October 10, 1927, appealed from the decree and on October 17, 1927, brought the present petition for leave to file a bill of review. It was denied October 31, 1927, upon the ground that after hearing the parties the petition was without merit, and that the petition was improperly filed, and the plaintiff appealed to this court. The petition in substance asks for a review because as matter of law the court erred in finding the material facts on which the final decree was based. It is plain that the bill for review asked for was merely an attempt to retry the case on the evidence heard in the original suit. It does not appear that substantial justice had not been done, and that if a review were granted there would be any material change in the result. It was discretionary with the trial judge whether leave should be given to file a bill of review and his decision on the record should not be reversed. Manning v. Woodlawn Cemetery Corporation, 249 Mass. 281, 144 N. E. 99; Craig v. Smith, 100 U. S. 226, 25 L. Ed. 577. Decree affirmed with costs. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |