other man; he was not fortunate enough to have a supply of coal on hand.

"Sec. 6. It shall be the duty of the secretary to at once notify the party or parties against whom complaint has been made. If the transaction was made through or by a jobber, mine agent, or other person, the principal for whom they act or the shipper from whom they receive the coal shall also be notified and shall be considered jointly liable.'

"That means if a member has not done everything the association has told him to do, that he hasn't kept up the price of coal, he is dropped from the list; everybody says you can't keep in the business-that is, they blackmail him right out of it, pure and simple. It is a direct attempt to evade the law by the fact that public monopoly to control the prices of goods shall not be entered into by dealers to make the people pay prices more than the goods are absolutely worth,an excessive price. In other words, they can't afford to sell the coal at the lowest price. The executive committee has said, if you are not in the business, you can't engage in the business. They don't state what the price is going to be, and they don't state that you have got to do so and so. It means that you have got to do just exactly what this organization is doing, and if you don't do exactly what the organization is doing, they drive you out of the business. In other words, I think it has been decided that a blackmail list, or a list of that kind, sent out is contrary to the principles of business. Anybody who wants to go into the business has to enter into an agreement whereby, if he don't buy of the rest of these people, he can't engage in the business. If you have to pay 50 cents a ton to your competitors, that means that you can't do business under an ordinary state of affairs when only from 10 to 15 per cent. profit would be a legitimate profit to a coal dealer.

"Sec. 10. Shipments and Penalties. Whenever, and as often as any mine operator, wholesale shipper, jobber or their agents shall sell coal to any person not a regular dealer, except as provided in article 3, section 3 of constitution, shipper will be considered as having sold and shipped to a consumer, and the penalty for said shipment shall be 50 cents per ton for each ton of anthracite coal, and 25 cents a ton for each ton of bituminous coal or smithing coal thus sold. Whenever the secretary of this association shall succeed in collecting any claim against a mine operator, wholesale shipper, jobber, or their agents, upon coal sold to the consumer, as provided in the constitution and by-laws, 80 per cent. of the sum so collected shall be paid in equal parts to the member of the association who shall be located at the point where such sale is made, and if there be but one member then 80 per cent. of all the sum so collected shall be paid to him, and the remainder shall be turned into the treas

ury of the association." If the city of Quincy wanted to buy a carload of coal at the present time-this 2,000 tons of coal that we wanted to buy for ourselves-under the agreement of the coal dealers of the United States, as set forth in this Constitution, that the people in Quincy has with the coal dealers, we couldn't buy it of some mine operator or agent or somebody else in this combination without the party would have to pay 50 cents per ton rebate to the people who live in our town. In other words, they made their profit anyway, even if we bought the coal direct. In other words, we are deprived at the present time from getting the lowest prices; there being a monopoly which I consider an injustice. I believe if the city of Quincy wanted to buy its own coal, for its own use, there ought not to be any combination existing in the New England states whereby they have got to pay commission to two men who do nothing except buy coal-two individuals. We are not allowed to buy coal direct and just as cheap as they do. That seems to touch the common people.

"Penalty. Whenever the secretary of this association shall succeed in collecting any claims made against the mine operator, wholesale shipper, jobber, or their agents, upon coal sold to the consumer, as provided in the constitution and by-laws, 80 per cent. of the sum so collected shall be paid in equal parts to the member of the association who shall be located at the point where such sale is made, and if there be put one member, then 80 per cent. of all the sum so collected shall be paid to him, and the remainder shall turned into the treasury of the association.'

"That means, that within the circle as I described if there is only one member in that circle, 80 per cent. of the sum so collected shall be paid to him and the balance to the association.

"Sec. II. Shippers Lose Standing. Any 'mine operator, wholesale shipper, jobber, or their agents, who shall sell coal direct to a consumer, in any town or city where there is a member of this association, shall be deemed as withdrawing from honorary membership, and shall not thereafter be included in any printed list of membership active or honorary, unless he shall first have satisfied the reasonable objections of all parties aggrieved.'

"That means that if he desires to sell the same way-if you or I want to buy five carloads of coal, or 100 tons of coal, a year, but not of this association, and should not approve of those people who elevated the prices and do this kind of thing-if the shipper furnishes it to us, his name is included in the printed list, and the association goes to work and says to the shippers, mine operators, and jobbers: "This man has violated our agreement. We are not able to maintain the present price of coal, if he keeps in business.' Now that blackmails him, and they put him

out of business. In other words, if a dealer was ready and willing to sell coal at a less price because it was coal that he was receiving direct from the shipper and could sell it at reasonable prices, he didn't dare to because he knew if he sold the coal at a less price than the other dealers had been selling it at, his whole supply would be cut off, and he would be put out of business. I know that for a fact. It is stated right in the contract.

"He didn't dare to, for he knew that if he sold this coal at any less than what the other dealers had been selling it at, that his whole supply would be cut off, and he would be put out of business. I know that for a fact, and it is stated right direct. "That the executive board,' section 15, 'of the Retail Coal Dealers' Association of the New England states, be instructed and they are hereby authorized to amend the constitution and by-laws of said Association, so that shipments to the railroad companies, where coal is used for other purposes,'-now, here is where than operating their lines, or conducting their business of railroading shall be considered as shipments to consumers.' If they don't use it for their own purposes, they shall be considered as shipments to railroad companies, and can buy it. I don't know what it might result in, but I don't see exactly why section 17 of these by-laws should be put in, unless for the fact that they might expect that if they pulled the string a little too hard they might be called up before a body like you gentlemen or the attorney general to find out if they had evaded the laws of the state. That is, suppose they showed a disposition to be very sharp. They haven't put anything in the by-laws for the attorney general to hold them on. That is just this: "That the executive board of the Retail Coal Dealers' Association of the New England states be instructed and they are hereby authorized to change the constitution and bylaws of said Association whenever they have reason to believe that they conflict with the laws of the New England states.' This is the time-whenever they are in conflict with the laws of the New England states. But, provided you people should ask them to bring up the by-laws, then they probably would have a meeting and change the by-laws.

"Q. Will you leave that with the committee? A. Yes, sir.

"Q. I wish. Mr. Mayor,-I don't know whether you feel like explaining any more definitely just how this came into your possession?

"A. I think I explained that to you. I don't want to give the man's name.

"Q. Afraid he would be blacklisted? "A. No, sir; he is a man that was interested in the coal situation. We are in the Boston Coal Club, which is just the same. The by-laws of the Boston Coal Club are no doubt worse than these, if you could make them any worse. He was in the town where

these people controlled it. He came in and shook me by the hand. He said, 'I wish to congratulate you for what you have done in Quincy.' He brought this to my attention. I said I would like very much to have it. He said, "This is a copy of it, and the members' list; the worst outrage that was ever perpetrated.' I said, 'You may let me have a copy, and I will send them out to you.' I went to work on it and had this made. It is a true copy. I read it myself. There is the list there. I should think you would summon one of the people.

"Mr. Schofield. Mr. Bryant, in an addition of these by-laws of the New England Association it says that the penalty upon a mine operator or wholesale agent, if he sells to any party outside of these, that he can be stricken off; in other words, the retail dealers will continue to buy of somebody else?

"A. That thing there is the worst blackmailing thing I ever read in my life."

Geo. R. Swasey and Albt. P. Worthen, for plaintiffs. Paul R. Blackmur, John W. McAnarney, and John B. Sullivan, Jr., for defendant.

HAMMOND, J. This is an action of tort for slander. The words were spoken by the defendant in testifying as a witness before a legislative committee. The court ruled that "the alleged slanderous words having been uttered by the defentant as a witness, duly sworn, at a hearing before a committee of the Legislature, upon a matter within the authority of the committee, in response to a question asked of the witness by the chairman of the committee, and being pertinent to the matter then under investigation by the committee, are absolutely privileged, and the defendant is not liable in this action therefor; and directed the jury to return a verdict for the defendant."

The plaintiffs concede that it is the wellsettled doctrine, in this commonwealth at least, that words spoken by a witness in the course of judicial proceedings which are pertinent to the matter in hearing are absolutely privileged, even if uttered maliciously. Laing v. Mitten, 185 Mass. 233, 70 N. E. 128, and cases there cited. They, however, contend that this doctrine is not applicable to the case of a hearing before a legislative committee, and in support of that contention they have addressed to us an argument based largely upon the well-known facts that legislative committees are frequently composed entirely of persons who have no knowledge of rules of law, especially of those relating to evidence; that frequently neither public nor private interests are represented by counsel, and that as the natural result the whole proceedings relating to evidence are very loosely conducted. But notwithstanding these considerations we think that as stated by Field, J., in Wright v. Lothrop, 149 Mass. 385, 389, 21 N. E. 963, 965, "the privilege of a witness appearing before a committee of the Legisla

ture in a matter within the jurisdiction of the committee is undoubtedly the same as that of a witness in proceedings before a court of justice." This rule of privilege is a compromise between two important rights, the one being the right of an individual to be free from attack by malicious words and the other the right public and private of a thorough investigation when necessary by some tribunal before which the witnesses may speak without fear. The reason for the rule is applicable as much to a hearing before a committee of the Legislature as to a court of justice.

The words in question were spoken before a duly constituted joint committee of the Legislature by the defendant who, having failed to answer one summons, was again summoned and, having appeared in answer to this command, was duly sworn as a witness. He testified therefore under the protection afforded by the rule.

The next contention of the plaintiff is that the words used were not pertinent to the matter then under investigation. The committee was appointed while the community was suffering from the consequences of the great coal strike of 1902. The duties of the committee as expressed in the joint order under which it was appointed were "to investigate the conditions under which coal is received, supplied and sold in the city of Boston and vicinity." "To ascertain if any attempt is being made or has been made to prevent coal from being transported to and delivered at its destination or placed on the market as speedily as may be, and to determine whether the high prices at which coal is sold and has been sold are unavoidable or the result of an attempt on the part of the dealers, at wholesale or retail, to make excessive profits." Subsequently, before the hearing, the committee was ordered to extend the investigation "throughout the commonwealth," and "to investigate and ascertain whether vessels or barges loaded with coal have been held or detained in harbors or at wharves for an unreasonable time before being unloaded."

It is very evident that the Legislature, in view of the state of things then and immediately theretofore existing in this community as to the lack of coal was thoroughly aroused and with a view to some legislation, was determined, if possible to probe to the bottom the circumstances relating to the supply of coal. The order was very sweeping. Under it the committee could properly inquire into the conduct of every coal dealer in the commonwealth, so far as it related to receiving, supplying, or selling coal, or holding or detaining or unloading coal barges at the harbors or wharves.

Under these circumstances the committee met. It may fairly be assumed that the members were determined in a matter so momentous to do their duty. The defendant, then the mayor of Quincy, who evidently had been quite active in his efforts to relieve the wants

of the residents of that city as to coal-a fact of which the committee apparently had had some information-was summoned as a witness and duly sworn. In response to questions put to him by the chairman he gives his name and states that he is mayor of Quincy. Then the examination continues thus, the questions being put by the chair

man:

"Q. Now the committee understand that you have had some interesting experience in your efforts to secure coal for the people of Quincy and vicinity.

"A. I don't know whether they are interesting or not; we have had some experience.

"Q. The committee would like to hear about it in your own way."

In response to this question the witness proceeds to make a long statement occupying several minutes.

Did he say anything not pertinent? "The examination of witnesses is regulated by the tribunal before which they testify, and if witnesses answer pertinently questions asked them by counsel which are not excluded by the tribunal, or answer pertinently questions asked by the tribunal, they ought to be absolutely protected. It is not the duty of a witness to decide for himself whether the questions asked him under the direction of the tribunal are relevant, as the witness is sworn to tell the whole truth relating to the matter concerning which his testimony is taken, he ought also to be absolutely protected in testifying to any matter which is relevant to the inquiry or which he reasonably believes to be relevant to it. But a witness ought not to be permitted with impunity to volunteer defamatory statements which are irrelevant to the matter of inquiry and which he does not believe to be relevant. This statement of the law, we think, is supported by the decisions in this commonwealth. The English decisions perhaps go somewhat further than this in favor of a witness; certainly they apply the rule liberally for his protection." Field, J., in Wright v. Lothrop, 149 Mass. 385, 389, 21 N. E. 963, 965, citing many authorities.

It is to be noted that the witness was replying to a statement from the chairman, that the committee would like to have the witness state his experience in his "own way." Under these circumstances, the witness, as he went on, had the right to assume that if he stated anything not wanted by the committee he would be interrupted by the chairman; and that, in the absence of any such interruption, he was giving the information for which the chairman asked, exactly as if the questions had been more specific and the statements were made in answer thereto. If so, the statements being responsive to the question were pertinent within the meaning of the rule.

But we do not base our decision upon this ground. We have examined carefully the testimony and are struck with the strictness with which the witness in response to such

a general question kept within the general | scope of the inquiry. The statements which he made, if true (and of that we cannot in this action inquire,) were plainly and directly pertinent to the subject before the committee. It is true that the word "blackmail" is used, but it is perfectly apparent that, it is used for the word blacklist and that taken in connection with its context, the word is simply used by the witness as descriptive of certain facts which are fully detailed by him, and which if true are pertinent to the inquiry. The word is used in no other way. The ruling of the trial court was correct. Exceptions overruled.

(192 Mass. 122)

MANNING v. CONWAY.

(Supreme Judicial Court of Massachusetts. Middlesex. May 18, 1906.)

1. PLEADING-AMENDMENT OF DECLARATIONDISCRETION OF TRIAL COURT.

Where, in an action of tort in three counts, the first and second of which were under Rev. Laws, c. 171, § 2, providing for the recovery of damages for wrongful death, and the third at common law for conscious suffering, the cause was submitted to the jury on the second and third, after a ruling that there was no evidence to warrant a verdict under the first count, and the jury assessed damages for the plaintiff under each of the second and third counts, it was within the power of the trial court, under rule 43 of the superior court of 1900 and Rev. Laws, c. 173, § 48, providing that the court may allow other amendments in matter of form or substance in any process, pleading, or proceeding which may enable the plaintiff to sustain the action for the cause for which it was intended to be brought, to allow plaintiff to amend his declaration by striking out the third count. 2. DEATH-GROUNDS OF ACTION-STATUTORY PROVISIONS.

To entitle plaintiff to recover in an action under Rev. Laws, c. 171, § 2, providing that a person causing, by the gross negligence of his agents or servants while engaged in his business, the death of a person who is in the exercise of due care and not in his employment or service shall be liable to damages within certain limits to be assessed with reference to the degree of the culpability of such agents or servants, he must show that there was no contributory negligence on the part of decedent or on the part of those having charge of him, and that there was gross negligence on the part of the agent or servant of defendant.

In an action under Rev. Laws, c. 171, § 2, to recover for the death of plaintiff's decedent, because of the alleged gross negligence of defendant's servant, it appeared that decedent was a boy about five years old. He had been playing ball on the sidewalk on E. street with another boy. Near where they had been playing there was a depression in the edge stone of the sidewalk and there was a plank or log lying in the gutter in front of and against the depression, so as to make a more gradual ascent to a driveway over the sidewalk and into the yard. There was a slight groove between the edge stone and the plank, and just before the accident decedent was rolling a ball along the groove. He was standing on one end of the plank, with his left foot on the plank and his right foot on the edge stone. There were trees in the street outside the edge stone and one of them was near where decedent stood and between him and C. street. Defendant's team came from

78 N.E.-26

C. street at a pretty fast rate, driving on the righthand side of the road two or three feet from the sidewalk. The wagon made a good deal of noise and could be heard some way off. The driver, who was on the seat, had his head partly turned to the left towards the center of the street, and was talking with his helper who stood behind the seat. There was a coal team in the middle of the road, coming towards defendant's team. When the two teams were within five or ten yards of each other, or almost on each other, the heads of the horses of defendant's team, being then nearest the driveway or the tree nearest the driveway, the driver gave his horses a quick jerk and turned them towards the sidewalk so as to avoid the coal team. In so turning the rear wheels slid on towards the sidewalk ond one of the rear wheels ran up on the plank and ran over decedent. E. street is between 22 and 23 feet wide. It did not appear from plaintiff's evidence that defendant's driver saw decedent. Held insufficient to show gross negligence on the part of the defendant's driver, so as to entitle plaintiff to recover.

Exceptions from Superior Court, Middlesex County; Chas. U. Bell, Judge.

Action by one Manning, as administrator, against one Conway. Verdict in favor of plaintiff, and defendant brings exceptions. Exceptions sustained.

J. P. Sweeney, H. R. Dow, and L. S. Cox, for plaintiff. Burke, Corbett & Harris, for defendant.

LATHROP, J. This is an action of tort in three counts. The first count is under Rev. Laws, c. 171, § 2, for causing the death of the plaintiff's intestate, and alleges negligence on the part of the defendant person-. ally. The second count is under the same statute and alleges gross negligence and carelessness on the part of the defendant's agents and servants. The third count is at common law for conscious suffering on the part of the plaintiff's intestate, after the injury and before his death which took place on the following day.

At the close of the evidence the judge ruled that there was no evidence to warrant a verdict on the first count, but submitted the second and third counts to the jury, who assessed damages for the plaintiff under each of these counts. The plaintiff was afterwards allowed to amend his declaration by striking out the third count. The defendant excepted to this, and contends that this should not have been allowed; and this raises the first question in the case.

We have no doubt that it was within the power of the court to allow this amendment. Rev. Laws, c. 173, § 48. Rule 43 of the superior court of 1900. The case was tried before the decision of this court in Brennan v. Standard Oil Co., 187 Mass. 376, 73 N. E. 472, which held that a count at common law could not be joined with counts under the statute. The defendant may have been harmed by the introduction of evidence of conscious suffering, but this was a matter for the consideration of the judge below. Hayward v. French. 12 Gray, 453, 460; Drew v. Farnsworth, 186 Mass. 365, 71 N. E. 783.

The remaining question is whether there was any evidence of gross negligence on the part of an agent or servant of the defendant.

The accident occurred on Elm street in Lowell, on May 13, 1902. The plaintiff's in testate was a boy five years and thirteen days old. He had been playing ball on the sidewalk with another boy. Near where he had been playing there was a depression in the edge stone of the sidewalk, and there was a plank or log lying in the gutter in front of and against this depression, so as to make a more gradual ascent to a driveway over the sidewalk and into a yard. There was a slight groove between the edge stone and the plank, and just before the accident the intestate was rolling a ball along this groove. He was standing on one end of the plank, with his left foot on the plank and his right foot on the edge stone. The other boy was at the other end of the plank. There were trees in the street outside the edge stone, and one of them was near where the intestate stood and between him and Central street. The defendant's team came from Central street, at a pretty fast rate, driving on the right hand side of the road two or three feet from the sidewalk. The wagon made a good deal of noise, and could be heard some way off. The driver, who was on the seat, had his head partly turned to the left towards the center of the street, and was talking with his helper who stood behind the seat. There was a coal team in the middle of the road coming towards the defendant's team. When the two teams were within five or ten yards of each other, or almost on each other, the heads of the horses of the defendant's team, being then nearest the driveway, or the tree nearest the driveway, the defendant's driver gave his horses a quick jerk and turned them in towards the sidewalk so as to avoid the coal team. In so turning the rear wheels slid in towards the sidewalk, and one of the rear wheels ran up on the plank and ran over the intestate. Elm street is between 22 and 23 feet wide.

The evidence given by the defendant's witnesses was to the effect that the boy ran out into the street against the off horse, and was thus knocked under the wheels. We assume the evidence for the plaintiff to be true.

The statute under which this action is brought had its origin in St. 1898, p. 724, c. 565, though there were many previous statutes giving damages for death. These statutes are commented on and fully considered in Hudson v. Lynn & Boston R. R., 185 Mass. 510, 71 N. E. 66.

To entitle the plaintiff to recover under Rev. Laws, c. 171, § 2, the plaintiff must show that there was no contributory negligence on the part of the intestate, or on the part of those who had charge of him. This question is not free from doubt, inasmuch as the boy was playing where his father, who had charge of him, could not see

him, but we assume that there was some evidence on this question for the jury.

The plaintiff must also show that there was gross negligence on the part of the driver of the wagon.

It was said in Brennan v. Standard Oil Co., 187 Mass. 376, 378, 73 N. E. 472, a case under St. 1898, p. 724, c. 565: "Gross negligence is a materially greater degree of negligence than mere lack of ordinary care. The statute compels us to recognize this distinction in the trial of cases like that now before us." We find nothing in the evidence in this case which would warrant the jury in finding that there was gross negligence on the part of the driver. It is contended that the driver was going at too fast a rate of speed, but the only evidence is that he was going at a pretty fast pace. It cannot be contended that he was obliged to walk his horses in that street. There was no evidence that his horses were going at a gallop, while there is evidence that they were trotting. We see nothing in this to show gross negligence. Then it is said that he should not have kept his eyes on the middle of the street, but the only danger he had to anticipate was from the approaching coal wagon which was coming in the middle of the street. The situation was a peculiar one, and when he saw that the driver of the coal wagon was not going to turn out, the only thing possible for him to do to avoid a collision was to turn his horses quickly to the right. It was a skillful act, and not one of gross negligence. The fact that the wheels skidded, and one of them struck the plank, was not to be anticipated. It does not appear from the plaintiff's evidence that the driver saw the boy.

Without pursuing the matter further in detail, we are of opinion that the judge should nave directed the jury, as requested by the defendant, to return a verdict for the defendant.

Exceptions sustained.

(192 Mass. 94)

LOWE v. JONES et al.

(Supreme Judicial Court of Massachusetts. Suffolk. May 18, 1906.)

1. TRUSTS INSOLVENT ESTATE OF DECEASED PERSON-TRACING TRUST PROPERTY.

Under the rule that, when trust money becomes so mixed up with trustee's individual funds that it is impossible to trace and identify it as entering into some specific property, the trust ceases, a trust will not be declared against the insolvent estate of a deceased person on the ground that the proceeds of trust property went into the general assets and thereby increased the amount in the hands of the administrator.

[Ed. Note.-For cases in point, see vol. 47, Cent. Dig. Trusts, §§ 525, 553.]

2. ADMINISTRATORS-EXONERATION OF PLEDGED PROPERTY-MARSHALING ASSETS.

Where decedent holding stock in trust, pledged part of it to a bank as security for a loan, the real owner of the stock was not entitled to have the administrator of decedent's insolvent estate use the general assets of the