*

to see that the defendants can be properly for its collection (see Harrington v. Glidregarded as a corporation of this character. den, 179 Mass. 486, 61 N. E. 54, 94 Am. St. No public duty is imposed upon them nor Rep. 613, nd cases therein cited), still we are they charged with any public trust. see no reason why the statute may not be They are authorized to make and distribute broad enough to cover a case like this. gas for their own benefit and gain only. There are obvious public reasons why it They are not bound to sell and dispose of is better that questions like this should be it to any one either for public or private settled by the assessors upon petition for use or consumption.

Nor is any

abatement, not the least potent of which power conferred upon them to take private is that the applicant for an abatement must property, not previously appropriated to a

first make to the assessors a Sworn statepublic use, for the purpose of exercising ment of his property liable to taxation. and enjoying their franchise."

Again, it is more convenient for the apThe petitioner in this case is making a plicant that the question whether he is public use of property obtained by right of liable at all, and, if so, to what extent, eminent domain. It cannot unreasonably

should be settled in one proceeding. In refuse to furnish water to an applicant. view of the history of the legislation we Turner v. Revere Water Co., 171 Mass. 329, can have no doubt that it was the intention 50 N. E. 634, 40 L. R. A. 657, 68 Am. St.

of the Legislature by this proceeding to Rep. 432. It is administering a public trust

make provision for the settlement of the just as the town of Milford would be ad

question of the validity of the whole or ministering the same trust, should it exer

any portion of the tax. The petition follows cise its right to purchase the property.

the language of the statute, and is broad There is no express statute subjecting land

enough to justify any action proper under so used to taxation. Under the principles

the statute. laid down in the cases hereinbefore cited,

It is further argued that by including in

its list to the assessors this land as taxable the provisions of the general tax acts do not apply. The land is therefore exempt from

property the petitioner is now estopped to taxation, and that is so even if some or

set up the claim that it is not taxable. But all of the land was acquired by purchase.

this position is untenable. Dunnell Mfg. Co.

v. Pawtucket, 7 Gray, 277; Charlestown v. It is not material whether the land be

County Com'rs, 109 Mass. 270; Moors V. taken under statutory proceedings. If it

Street Com'rs, 134 Mass. 431. could have been so taken, and by an agree

It becomes unnecessary to discuss the ment between the corporation and the land

other exceptions raised upon this record. owner these proceedings are dispensed with

Exceptions sustained. and the title is conveyed by deed to the corporation, the land so far as material to the question before us is to be regarded as

(192 Mass. 244) if taken by right of eminent domain. It

MITCHELL Y. BIOKFORD et al. is true that under this decision the peti- (Supreme Judicial Court of Massachusetts. tioner is left in a more favorable position

Suffolk. June 20, 1906.) as to taxation than that in which a town QUIETING TITLE-UNDISCHARGED MORTGAGEusing land for a similar purpose is left

SCOPE OF STATUTE. under Rev. Laws, C. 12, § 10, and more

Rev. Laws, C. 182, § 15, declaring that

if the record title to land is incumbered by an favorable also than that of an aqueduct undischarged mortgage, and the mortgagor or company, incorporated under the general his successors have been in uninterrupted poslaws, which cannot take property by right

session for 20 years after the expiration of the

time limited in the mortgage for the full perof eminent domain, If this rule of law

formance of the condition thereof, and no eviaffects the public interest unfavorably the dence is offered that there has been a payment Legislature can provide a remedy.

on account of the mortgage debt, or any other

recognition of its existence within the 20 years, It is argued by the respondent that the

the mortgagor may have a decree reciting these question whether the property is exempt is facts, which, when recorded within 30 days not open upon this petition. The petition

.

after its entry, shall prevent the enforcement of is plainly brought under Rev. Laws, C.

the mortgage, is intended to provide for the re

moval of a cloud from a record title incumbered 12, § 73. This section provides that the

by an undischarged mortgage, and if the conassessors, if they find that the applicant ditions stated in the statute are shown to exist for abatement is taxed "at more than his

the mortgagor is entitled to a decree which is

an absolute bar to all claims under the mortjust proportion or upon an assessment of

gage. any of his property in excess of its fair cash value," may make a reasonable abate

Exceptions from Land Court, Suffolk ment. While it is true that the language

County; C. T. Davis, Judge. of this section gives some support to tlie

Petition by one Mitchell against one Bickidea that the assessors acting under it can

ford and others. There was a decree for not wholly abate a tax, and while the per

petitioner, and respondents bring exceptions. son taxed, upon paying the tax under pro

Exceptions overruled. test, may maintain an action of contract Benj. B. Dewing, for petitioner. Hamilton to recover it back, or perhaps successfully & Eaton, Herbert R. Morse, and Albin L, defend against any proceedings brought Richards, for defendants.

the petitioner. Thereafterwards a decree 2. JURY-DEMAND FOR JURY-WAIVER. was entered in favor of the petitioner. Ex- Plaintiff duly filed a claim for a jury. An

auditor was appointed. Subsequently plainceptions were taken by the respondents

tiff filed a waiver of a jury trial. Ten days Atkins and Clark which were sustained. See

thereafter, defendant filed motions for the resRochford v. Rochford, 188 Mass. 108, 74 N. toration of the case to the jury list and for E. 299, which it is agreed in the exceptions

leave to file a claim for a jury. Held that, as

the court might have been of the opinion that may be referred to and where the issues

defenılant had no intention of claiming a jury that were framed appear. The case went trial originally and that his purpose in making back to the superior court and that court the motions was to delay and obstruct plaintiff,

the motions were properly denied, and the ques"upon consideration of the findings of the

tion as to the effect of a withdrawal by plainjury, the facts as reported by the auditor tiff of a claim to a jury trial did not arise. so far as applicable to the issues raised by 3. SAME-SUFFICIENCY OF DEMAND. the pleadings which are not technically cov

Where a defendant has defaulted and the ered by the findings of the jury, neither

cause is heard only on the question of the as

sessment of damages, it is necessary for defendparty offering any other evidence," entered

ant, if desiring the assessment to be made by a a decree establishing the lien, subject to the jury, to make a motion specifically addressed mortgage, for the amount for which it had to the assessment of damages after the default. been previously established. The respond

[Ed. Note.--For cases in point, see vol. 31,

Cent. Dig. Jury, $$ 154–173.] ents Atkins and Clark objected to the entry of the decree, and contended that the Appeal from Superior Court, Middlesex plaintiff had abandoned his contract, but County. the court ruled that on the face of the record Action by one Clark and others against a decree could be entered for the plaintiff one Baker for damages for breach of a buildand entered the above decree. The case ing contract. There was a finding for plainis here on exceptions by the respondents tiffs and defendant appeals. Judgment on Atkins and Clark to the entry of the decree. finding. The respondents contend that the contract

Wm. H. Baker and Jos. G. Wright, fo: was abandoned by the petitioner. This

appellant. E. R. Thayer, and C. Hunneman, is their only contention. If the plaintiff

for appellees. willfully abandoned his contract and broke it without any excuse he is not entitled to MORTON, J. This case comes here on aprecover and cannot maintain his petition. peal by the defendant from a ruling in the General Fire Extinguisher Co. v. Chaplin, 183 superior court allowing the auditor, on moMass. 375, 67 N. E. 321. But no issue was sub- tion of the plaintiff, to take a view, after he mitted to the jury on this point and it ap- had reported to the court that in his opinion pears that the parties agreed to the answers a view was necessary to a just decision of by the jury to all of the issues except the the case, and that it should be taken before first and ninth and tenth. The fifth issue the evidence was introduced, and also on was "What amount if any thing is due the appeals from rulings denying her motion that petitioner for labor performed and materi- the case should be restored to the jury list als furnished on the house on said prem- after it had been stricken therefrom in conises under said contract?" and the answer sequence of a waiver by the plaintiff of his was $917.46. This answer was inconsistent claim for a jury trial, and denying another with an abandonment of the contract and motion that she should be allowed to file even if the question of abandonment was a claim for a jury trial. properly raised and the auditor's report con- We have no doubt of the power of the court tained evidence in relation to it, it cannot to take a view, and in a proper case to be said in view of the answer of the jury to authorize an auditor to do so. the fifth issue that the decree in favor of Generally cases are to be heard and deterthe petitioner was unwarranted, and that the mined upon the evidence submitted in open ruling of the court that on the face of the court. But where the court is of opinion record he could give the plaintiff a decree that a view will tend to a better understandwas wrong.

ing and more satisfactory disposition of the Exceptions overruled.

case, it may in its discretion authorize one to be taken. See Com. v. Chance, 174 Mass.

245, 54 N. E. 551, 75 Am. St. Rep. 306; Tully (192 Mass. 226)

v. Fitchburg R. R. Co., 134 Mass. 499, 503. CLARK et al. V. BAKER.

The case was entered in June, 1900, and (Supreme Judicial Court of Massachusetts. the plaintiff duly filed a claim for a jury. Middlesex. June 20, 1906.)

An auditor was appointed and his report was 1. REFERENCE-AUDITOR—VIEW DISCRETION filed September 30, 1905. On October 4th, or CɔURT.

the plaintiff filed a waiver of a jury trial. Where an auditor reported to the court that in his opinion a view was necessary to a

On the 14th of November, apparently just as decision of the case, and that it should be taken the case was about to be reached for trial, before the evidence was introduced, it was with- the defendant filed the two motions referred in the discretion of the court to authorize the

to above. The grounds on which the court auditor to take a view. [Ed. Note.-For cases in point, see vol. 42,

overruled them do not appear, and nothing Cent. Dig. Reference, § 93.]

is before us except what the record discloses.

It is possible that the court may have been was sufficient, if unexplained, to justify an of the opinion that the only satisfactory

inference of defendants' negligence. explanation of the defendant's conduct in not

[Ed. Note.--For cases in point, see vol. 34, claiming a jury trial when the action was

Cent. Dig. Master and Servant, § 972.1

5. SAME-FELLOW SERVANTS. entered and in delaying from October 4th,

In an action for injuries to a servant by to November 14th, to file her motions was

falling through a trapdoor in the floor of the that she had no intention of claiming a jury hall in defendants' building which was unguardtrial originally and that her purpose was to

ed, it was proved that it was the custom to bar.

ricade the opening with a ladder or settee or delay and obstruct the plaintiff in the prose

otherwise, which articles were kept in a room cution of his claim. If so, the presiding jus- near by. The court charged that if barriers tice was justified, in the exercise of his dis- were provided, and if, from the custom to use cretion, in denying the motions, and the

barriers, defendants knew that the janitor and

his assistant were using such articles as barquestion which the defendant seeks to raise

riers, then defendants had done all that the as to the effect of a withdrawal by the party law required of them, and the assistant janitor's making it of a claim to a jury trial on which failure to use barriers on the occasion in questhe other party has relied does not arise.

tion constituted the negligence of plaintiff's

fellow servant, for which defendants were not Stevens v. McDonald, 173 Mass. 382, 53 N.

liable. Held, that such instruction was correct. E. 885, 73 Am. St. Rep. 300. Further it is 6. SAME - DANGEROUS PREMISES - CARE REto be noted that the defendant was defaulted QUIRED. and the case was heard by the court only on

If defendants had made no provision for a

barricade or warning of a trapdoor located in the question of the assessment of the dam

the hall of their building, and had no knowledge ages. If the defendant had wished to have that ladders or settees were used as barriers the damages assessed by a jury it was neces- by their servants, defendants would not be resary to make a motion specifically addressed

lieved from liability for injury to a servant by

falling through such trapdoor at a time when to the assessment of damages after the de

such articles were not used. fault. Gallagher v. Silberstein, 182 Mass. 20, 64 N. E. 402. Not having done so, she has

Exceptions from Superior Court, Suffolk no just ground for complaint.

County; Lloyd E. White, Judge. Judgment on the finding.

Action by William O. Falardeau against D. Blakeley Hoar and others. A verdict was rendered in favor of plaintiff, and defendants

bring exceptions. Overruled. (192 Mass. 263)

C. E. Washburn, for plaintiff. Edward F. FALARDEAU V. HOAR et al.

McClennen, Harrison F. Lyman, and Bran(Supreme Judicial Court of Massachusetts. deis, Dunbar & Nutter, for defendants.

Suffolk. June 20, 1906.) 1. MASTER AND SERVANT-INJURIES TO SERV- KNOWLTON, C. J. The plaintiff, while ANT – DANGEROUS PREMISES – TRAPDOOR

temporarily employed in a building held and FAILURE TO SEE.

Where a servant was injured by falling managed by the defendants as lessees, fell through a trapdoor in the floor of one of the through a trapdoor in the floor of one of the halls of defendant's building, and testified that halls, and was injured. This trapdoor was

. he had often passed through the hall before

set in an opening in the floor, and could be and had never noticed the trapdoor, his failure to see the same did not establish negligence on

lifted out of the opening by a ring. There his part as a matter of law.

was much contradiction between the defend[Ed. Note.-For cases in point, see vol. 34, ants' witnesses and the plaintiff in regard to Cent. Dig. Master and Servant, 88 1089–1132.)

some of the material facts in the case; but as 2. SAME-CARE OF OWNER.

the jury presumably believed the plaintiff, Where the owners of a building maintained a trapdoor in the floor of a hall, which would

we must consider the exceptions in the aspect be opened by their servants only at intervals

of the testimony which is most favorable to for the performance of particular duties, defend- him. ants owed to their servants the duty to give

He testified that he had often passed warning of the use of the trap.

through this hall but never had noticed the 3. SAME-PROVISION OF BARRIERS.

Where defendants maintained a trapdoor | trapdoor. We cannot say as matter of law in the floor of the hall of their building which that his failure to notice it shows a lack of was used by their servants at irregular inter- due care.

Johnson V. Field-Thurber Comvals, if defendants provided barriers or other

pany, 171 Mass. 481, 51 N. E. 18. According means of protection for those walking in the hall which barriers were to be used by their

to his account of the accident, he was passing servants whenever the door was lifted, the use through the hall in the performance of his of such barriers might be intrusted to the serv

duty walking in the usual way, when he met ants in connection with their work involving the opening of the door.

King, an assistant of the janitor, and went [Ed._Note.-For cases in point, see vol. 34,

on a little further, after which he rememberCent. Dig. Master and Servant, $8 228-231.] ed nothing more until he found himself in 4. SAME-INFERENCE OF NEGLIGENCE.

the hospital. The evidence showed that King In an action for injuries to a servant by had taken out the trapdoor to put some ash falling through a trapdoor in the floor of the

cans into the cellar, leaving an opening in hall of defendants' building, evidence that at the time of the accident no barriers were used

the floor four feet square, through which and no warning given that the door was open the plaintiff fell. There was nothing there

, a

but the opening to indicate that the floor that when the door was opened it was the was not in its usual safe condition. There custom to barricade the opening by putting was testimony from a medical expert that across it "a ladder or settee, or anything a person receiving a severe blow on the that would go across there," and that such head as the plaintiff did, ordinarily loses the articles were kept in a room near by. The recollection of everything occurring immedi- judge left to the jury the question whether ately before the blow. We are of opinion that the defendants had made provisions for a it was a question for the jury whether the barricade, by an instruction in these words: plaintiff, walking there in an ordinary way "Now, this is a question for you. If there in the performance of his duty, was in the were barriers provided, and if from the cusexercise of due care, even though he failed tom there to use those barriers the defendto notice an opening in the floor in a hall ants in the line of their supervision knew where he had always found the floor in per- that those were being used for barriers, and fect condition, and where he had reason to that Wildes (the janitor) and King were usbelieve that it was absolutely safe. Thyng ing them as barriers, why then, they had done v. Fitchburg Railroad Company, 156 Mass. all that the law required of them, and the 13, 30 N. E. 169, 32 Am. St. Rep. 425; Ma- act would become the negligent act of a felguire v. Fitchburg Railroad Company, 146 low workman, namely, King, in the failure Mass. 379, 15 N. E. 304. If, in looking for- to use those things which were provided as ward the hall seemed in its usual condition, barriers, and which the defendants, in the we cannot say as a matter of law that he line of their supervision, knew were being was bound so to scrutinize the floor as to be used for that purpose." This instruction was sure that there was no opening in it. The correct. The defendants requested a simidanger that one might step into such an open- lar instruction, which omitted in its hypoing without noticing it was recognized by thetical statement the element of intention on the janitor who testified as follows: "I had the part of the owners or persons in control always put a stepladder or settee there as a of the building that the articles which were protection when I opened the trapdoor. I did suitable for making a barricade should be not give King any instructions to do this on used for that purpose, and the element of the morning of the accident, and I did not knowledge that they were so used, and they look to see whether it had been done, be- excepted to the refusal to give the instruction, cause he had always put something there, and to the instruction given so far as it and of course I supposed he knew enough to included knowledge on the part of the owners do it that time."

as a requisite. The defendants contend that there was no This exception must be overruled. If the evidence of negligence on their part. It was defendants had made no provision for a bartheir duty, in a general way, to have the ricade or warning, and had no knowledge building in a safe condition for those who were that ladders or settees were used as barriers, working in it. An opening in the floor of a and these things were sometimes so used hall rendered it unsafe for those who had without their knowledge, they would not be occasion to pass through the hall without relieved from liability for an accident at a knowledge of the opening. Such an opening time when they were not used, and when was in the nature of a trap for those who they had made no provision for erecting a were ignorant of it, and it was the duty of barrier or giving a warning. the defendants to give warning of it. This The jury must have found that the defendopening would be made only at intervals by ants made no proper provision for giving the defendants' servants for the performance warning. of particular duties. If the defendants pro- Some evidence that the testimony of Wildes vided proper barriers or other means of pro- and King should not be given the effect imtection for these walking there, which were to puted to it by the defendants is found in the be used by their servants whenever the door fact that the defendants, while seemingly was lifted up, the use of these barriers might stating in their answers to interrogatories the be intrusted to servants in connection with facts relied upon by them as a defense, did their work which involved the opening of the not refer to any provision of this kind. trapdoor. Moynihan v. Hills Company, 146 Exceptions overruled. Mass. 586, 16 N. E. 574, 4 Am. St. Rep. 348. At the time of this accident no barriers were

(192 Mass. 241) used and no warning was given. From these facts, unexplained, the jury might infer neg

MICMAHON V. MILLER et al. ligence on the part of the defendants. Grif- (Supreme Judicial Court of Massachusetts. fin v. Boston and Albany Railroad Company,

Norfolk. June 20, 1906.) 148 Mass. 143, 19 N. E. 166, 1 L. R. A. 698,

1. EXECUTORS AND ADMINISTRATORS—CLAIMS

-PROSECUTION-TIME-EQUITABLE RELIEF. 12 Am. St. Rep. 526; Savage v. Marlborough

Rev. Laws, c. 141, § 9, requires actions Street Railway Company, 186 Mass. 203, 71 against executors to be brought within two N. E. 531; Feital v. Middlesex Railroad, 109 years from their qualification, and section 10 Mass. 398, 12 Am. Rep. 720. By way of ex

authorizes relief by the Supreme Judicial Court

on a bill filed by a creditor whose claim was not planation the defendants offered evidence

prosecuted within such time, if justice and