Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

MAHONEY v. CITY OF BOSTON. (Supreme Judicial Court of Massachusetts. Suffolk. June 22, 1898.)

INJURY TO SERVANT-LIABILITY OF CITY-PUBLIC IMPROVEMENTS.

A city is not responsible for injuries received by a workman because of the negligence of a foreman in charge of a derrick, where both were employed in building a city subway, the rents of which are not fixed by the city, and are to be applied, in accordance with St. 1894, e 548, § 38, first, to meet any deficiency in the sinking fund for bonds issued for its construction, and, second, to pay interest on those bonds, and the surplus to be devoted to maintenance of the public parks, the construction of which subway is in the hands of a commission that is independent of city control, notwithstanding that the workmen are paid out of the proceeds of city bonds, and the subway will belong to the city, and the act under which it was constructed did not take effect until adopted by the city, and that some members of the commission were appointed by the mayor.

Report from superior court, Suffolk county; Elisha B. Maynard, Judge.

Action by Mahoney against the city of Boston. A verdict was directed for defendant, and case reported. Judgment on the verdict.

E. O. Achorn, D. F. Yost, and W. B. Grant, for plaintiff. T. M. Babson and F. E. Hurd, for defendant.

MORTON, J. The plaintiff was injured by the fall of a derrick while he was at work on a section of the subway in Boston. The management of the derrick was under the direction of one Daniels, a foreman, and there was evi dence that his sole or principal duty was that of superintendence, that the fall of the derrick was caused by his negligence, and that the plaintiff was in the exercise of due care. The plaintiff was in the employ of the Boston Transit Commission, and he and the others who were at work on the section, and all the expenses of construction, were paid in bills and pay rolls which were approved by the commission out of the proceeds of 31⁄2 per cent. bonds issued by the city of Boston under section 37, c. 548, St. 1894. The commission was building this section under that statute, and with the approval of the railroad commissioners has leased the subway to the West End Street-Railway Company, for 20 years, to begin when determined by the transit commission, at a yearly sum of 4% per cent. on the actual net cost of the subway, payable to the city of Boston, and to be applied by it in accordance with section 38, c. 548, aforesaid. That section provides that all rents received for the use of the subway shall be used "first, to meet any deficiency in the sinking fund requirements for bonds issued under the act; second, to meet the interest on said bonds, and the surplus, if any, as a part of the general revenue of said city for the maintenance of its public parks." Inasmuch as the city of Boston is to pay all of the costs and expenses

of such subways as the commission may construct, and of such lands and rights as it may take under the authority of the act, and is to receive all rents, percentages, or other annual compensation paid for the use of them, we assume, without deciding, that the subways and such lands and rights will belong to the city. But neither that fact nor the fact that some members of the commission are appointed by the mayor and confirmed by the aldermen will necessarily render the city liable. The ques

tion is whether the work is a public work, and the commissioners are public officers charged with the performance of public duties in carrying it out, or whether the work, though public, is partly commercial in its character, and for the benefit of the city of Boston, and in performing it the commissioners act as its servants or agents. It is only in the latter event that the city is liable for the negligence of the foreman. The case of Prince v. Crocker, 166 Mass. 347, 44 N. E. 446, would seem to go far towards determining that the work is a public work. Though the point was not directly adjudicated in that case, the decision proceeds on the assumption that the work was in its nature a public work. Independently, however, of that case, we think that the work must be regarded as a public work, the expense of which the legislature has imposed on the city of Boston, as it rightfully could do, and for the doing of which it has provided agents appointed in part by the governor and council, and in part by the mayor and aldermen of Boston. The object is to promote the convenience of the inhabitants of Boston and of the public generally by furnishing increased accommodations for public travel. The com

mission constitutes, in effect, a special board established by the legislature for the purpose of laying out and building in the city of Boston, at the expense of that municipality, public ways along certain lines and between certain termini, and for that purpose is given large powers, and is rendered independent of any control or direction on the part of the city of Boston. The city authorities have nothing to do with the manner in which the work shall be done, or with the persons engaged in its performance. They have no control over the transit commissioners, and no voice in fixing the terms and rates for the use of the subway when completed, or any part thereof. Although the act did not take effect until accepted by the city, that does not render the city liable. Tindley v. City of Salem, 137 Mass. 171. There can be no doubt, we think, that the members of the transit commission are public officers engaged in the performance of public duties, and we do not see how they can be regarded as the servants or agents of the city.

But, assuming that they could be regarded as in some sense the servants of the city, we think that the element of commercial advantage or pecuniary benefit to the city is not such as to render it liable for the negligence of the foreman. As already observed, the work is

intended to promote the convenience of the public generally. The statute requires the city to apply any rents or compensation which it may receive from the use of any of the "subways, tunnels, or adjacent locations, or for any use of any lands or rights taken under authority" of the act, first, to meet any deficiency in the sinking-fund requirements for the bonds; second, to meet interest on the bonds; and, third, to use the surplus, if any, as a part of the general revenue of the city for the maintenance of the public parks. The city can use the rent or compensation which it receives only as thus directed. For aught that appears, the legislature may direct it to be used in some other manner. The city has no general control over it. The undertaking, so far as the city is concerned, lacks the features of one which is partly commercial in its character and intended for the benefit of the city. The surplus, if any, is to be used for the support of the public parks; in other words, for the gen. eral public benefit,-which has some tendency to show that the legislature regarded the work as one of general public utility. The case differs, therefore, from those cases in which it has been held that when a city or town engages in a public undertaking which is partly commercial in its character, and over the con struction of which it has full control by means of agents or officers appointed or elected by it, and the benefits of which it receives, it is liable for injuries sustained in consequence of the negligence of one employed in doing the work (Taggart v. City of Fall River, 170 Mass. 325, 49 N. E. 622; McCann v. City of Waltham, 163 Mass. 344, 40 N. E. 20; Curran v. City of Boston, 151 Mass. 505, 24 N. E. 781; Norton v. City of New Bedford, 166 Mass. 48, 43 N. E. 1034), even if it be conceded that for the time being there is a surplus, and that the city is benefited by having it applied to the maintenance of the parks, and thus relieved from the obligation to raise by taxation money which it otherwise would be obliged to raise. The benefit is a mere incident of an undertaking which is public in its nature, and is carried out by public officers, over whom the city has no control; and no case, we think, has gone so far as to hold a town or city liable under such circumstances. Judgment on the verdict.

JONES v. SIMPSON.

(Supreme Judicial Court of Massachusetts. Middlesex. June 23, 1898.) WILLS-PROBATE-UNDUE INFLUENCE. Testatrix. 83 years old, executed a will in the handwriting of a son, her confidential adviser,, without the knowledge of the rest of the family, leaving him all her personalty, which amounted to three or four times as much as her realty, which she left to her other son. Before her death the favored son had purchased nearly all of her realty, giving in payment his notes, which under the will would come back to him. Held, that the will was properly refused admission to probate, because of undue influence.

Appeal from supreme judicial court, Middlesex county.

An instrument propounded by one Jones for admission to probate as the last will of Mrs. Elizabeth Simpson, deceased, was disallowed by the probate court. This decision was affirmed by the single justice, and proponent appeals. Affirmed.

William H. Bent and Louis H. Kileski, for appellant. Trull & Wier and George A. Sanderson, for appellee.

BARKER, J. This case comes before us upon an appeal from a decree entered by Mr. Justice Holmes affirming a decree of the probate court of Middlesex disallowing an instrument propounded for admission to probate as the last will of Mrs. Elizabeth Simpson, who died on March 1, 1897, when 95 years of age. The evidence is reported to the full court, and the question for decision is whether upon the evidence the instrument should be admitted to probate.

We are of opinion that it should not. Mrs. Simpson was a widow whose husband had died testate in the year 1883, leaving an estate appraised at more than $400,000, from which she received as residuary legatee about $250,000 in personal property and about $123,000 in real estate. The instrument propounded for probate as her will was executed by her on October 1, 1884, when she was 83 years of age. She then had two sons, who were her next of kin and presumptive heirs. One of these sons was her confidential and trusted adviser, and the alleged will is in his handwriting, is mainly in his own interest, and, upon his own statement, was executed without the knowledge of the rest of the family or a word of counsel from any one but himself. These are circumstances of suspicion, calling for care in the court which has the duty of deciding whether the instrument shall be admitted to probate, and requiring the court "not to grant probate without entire satisfaction that the instrument does express the real intentions of the deceased." Baldwin v. Parker, 99 Mass. 79, 87; Ogden v. Greenleaf, 143 Mass. 349, 351, 9 N. E. 745.

The evidence, so far from disclosing any clear and sufficient explanation of the transaction to satisfy us that the alleged will expresses the real intentions of Mrs. Simpson, leads us to the belief that its execution was procured by the undue influence of the son who wrote it, in pursuance of a plan formed by him, shortly after his father's death, to get control of his mother's fortune. The father died in April, 1883, and almost immediately thereafter the son desired to buy his mother's property at the price of $200,000. This sale was checked by the opposition of the other son, and in October, 1883, Mrs. Simpson gave to each son real estate and mortgages to the value of $40,000, leaving the value of her remaining real estate very much less than the value of her remaining

personal property. This was the situation of her estate when the alleged will was executed, in October, 1884. Assuming, as we must, that the provisions concerning the third son, who had not been heard from since he went as a sailor, 40 years before, would require ultimately no part of Mrs. Simpson's estate, the operation of the alleged will would be to give to the son who drew the instrument, and who alone of the family knew of its execution or was acquainted with its contents, all of her personal property, and to the other son her real estate, giving to the former three or four times the amount given to the latter, and making every future change of Mrs. Simpson's property from realty to personalty operate to the further advantage of the son in whose handwriting the instrument is drawn. The instrument was executed at the registry of probate, and there left upon deposit, and the register's receipt for it was not long after taken away by the son who had written the will, and was kept by him until after Mrs. Simpson's death. Three years after the instrument was executed he bought of his mother all her property except the house in which she lived and a farm, for the price of $150,000, much less than it was worth, and gave her in payment only his own unsecured notes, which would come back to him under the alleged will. Five years later, when Mrs. Simpson was 91 years of age, not having paid his notes as they matured, he made a final contract with her by which she gave up his notes upon his promise to pay her $550 a month until her death, and at her death these payments were largely represented by his unpaid notes in her possession. Whether the contents of the alleged will were known to Mrs. Simpson, and whether they expressed her intentions, depends wholly upon the testimony of the son in whose handwriting the instrument is. His account of the interviews between himself and Mrs. Simpson resulting in the execution of the instrument it is impossible for us to believe, and, upon a careful study of the whole evidence, we are satisfied that the decree disallowing the instrument was right. Decree affirmed.

[blocks in formation]

1. A declaration of trust will not be reformed on the ground of mistake, except on full, clear, and decisive proof of the mistake.

2. One shortly before his death desired to pay an outlawed debt of many years' standing, and for that purpose executed a trust for the use of certain named children of the creditor as "the only living children," with remainders to their children. It appeared that a son of a deceased son was the only heir excluded, and grantor did not know that he was living. There was evidence, also, that the grantor intended the heirs

of the creditor as the objects of his bounty. Held, that the evidence was not sufficiently clear to warrant the reforming of the trust.

3. Statements by the creator of a trust, after it has been executed and carried into effect, are inadmissible to vary or affect its terms, where made in the absence and without the knowledge or consent of the beneficiaries.

Report from supreme judicial court, Suffolk county; Marcus P. Knowlton, Judge. Bill in equity by William C. Richardson against John Quincy Adams and others to enable plaintiff to obtain a share of a fund held by defendant Adams as a trustee. Bill dismissed on report.

The following is the bill of complaint: "(1) On or about the year 1837 one George Higginson, of Boston, aforesaid, now deceased, was indebted to one Alfred Richardson, of said Boston, now deceased, in a large sum of money, to wit, the sum of seven thousand dollars. (2) Said Alfred Richardson died on December 11, 1851, intestate, leaving as his heirs at law eight children, viz. Mary A. Pratt, Charles H. Richardson, Rosa B. Wilkins, Anna R. Currier, Loring S. Richardson, Joseph Richardson, Francis A. Richardson, and George Richardson. (3) Said George Richardson died prior to the year 1881, intestate, leaving no issue, and said Francis A. Richardson died October 15, 1862, intestate, leaving as his sole heir at law the plaintiff, William C. Richardson. (4) On or about December 19, 1881, said George Higginson desired to pay the amount of said debt, with interest thereon, to the legal heirs of said Alfred Richardson, and he so informed said Charles Henry Richardson. Said legal heirs were at said time said Charles H., Loring S., and Joseph Richardson, Mary Ann Pratt, Anna Rebecca Currier, Rosa Bella Wilkins, and your complainant, William C. Richardson, representing his father, Francis Alfred Richardson, deceased. Said Charles H. Richardson, who was then in the employ of the defendant Adams, thereupon procured the payment of the amount of said debt, and interest thereon, which amounted to forty-three thousand six hundred and ninety-seven dollars and fiftyeight cents, to said Adams by check, a copy of which is hereto annexed, marked 'B.' And said Higginson paid said sum to said Adams at the request of Charles H. Richardson, and paid said sum as and for the payment of said debt to said Alfred Richardson, and paid said sum with the directions to said Charles H. Richardson that it be distributed among all the heirs of said Alfred Richardson. Said Higginson and said Adams were both at the time of said payment ignorant of the names of all the heirs of said Alfred, and of the existence of your complainant, and relied upon said Charles H. Richardson for all information concerning the names of said heirs. (5) Said Charles H. Richardson, either in ignorance of the existence of your complainant, or by mistake, or in fraud of the rights of your complainant, procured to be made

the declaration of trust annexed to complainant's bill and marked 'A'; and said Adams, relying upon the statement and declaration of said Charles H. Richardson as to who the legal heirs of said Alfred Richardson were, made said declaration of trust. Therefore it is that your complainant, being justly entitled to one-seventh of said sum of forty-three thousand six hundred and ninety-seven dollars and fifty-eight cents, and said Higginson intending, when he paid said sum, that your complainant should have, as heir of said Alfred, one-seventh of said sum, has, through the mistake or accident or fraudulent contriving of said Charles H. Richardson, received none of said sum, or any benefit therefrom. Said Adams is the administrator of the estate of said Charles H. Richardson. (6) The plaintiff was entirely ignorant of the receipt of said sum of money, and its payinent to said Adams, and remained ignorant until on or about September 1, 1888, when, by accident, he learned of the same, and immediately took steps looking to a full discovery of the facts. The plaintiff has never received any of the proceeds of said debt due from said Higginson to said Alfred Richardson, or any benefit therefrom. On or about March 15, 1889, your complainant sent a letter to said Higginson, making inquiry about the payment of said sum of money, and in reply thereto received a letter from said Higginson, a copy whereof is hereto annexed, marked 'C.' The plaintiff prays that said Adams may be ordered to pay over to the plaintiff one-seventh of the said fund, and for such other and further relief as to your honors may seem meet, and that said Adams may be enjoined from disposing of any portion of said fund until further order from said court."

The following is Exhibit A: "Whereas, I have this day received from George Higginson, Esq., the sum of forty-three thousand six hundred and ninety-seven dollars and 58/100 in cash: Now, I hereby declare that I hold the same upon the following trusts: First. To invest, hold, and manage the same as a trust fund, and to pay over the net income equally, one-sixth each, to Mary Ann Pratt, Chas. Henry Richardson, Rosa Bella Wilkins, Anna Rebecca Currier, Loring Solomon Richardson, and Joseph Richardson, the only living children of the late Alfred Richardson, to their respective sole and separate use, and on the decease of each to transfer and convey one-sixth of the capital of the fund as then invested to the child or children of the one dying (issue then living of any deceased child taking parents' share); and, if no issue of the one so dying survive him, then the share of the one so dying is to go equally to the surviving brothers and sisters (issue then living of any deceased brother or sister to take parents' share). Second. The trustee at any time acting under this trust is to have the fullest possible power of

sale of real and personal estate held at any time under the trust, whether for purpose of change of investment, division, or otherwise, and may invest what was personal estate in real estate and the reverse, and shall not be held responsible for anything except willful default. Witness my hand and seal this 19th day of December, A. D. 1881. J. Q. Adams. [Seal.] In presence of C. F. Adams, Jr."

The following is Exhibit C: "Boston, March 19/89. Dr. Sir: Your letter of the 15th instant I rec'd a few days ago, but have delayed replying from passing illness. The request you ask is quite beyond my reach. The sum of money you refer to was paid, years ago, to a son of your grandfather (as you refer to old Mr. Alfred R.), who was then a clerk in the employ of Mr. John Q. Adams, with a verbal request that the sum should be divided among the legal heirs of old Mr. R. My interest and agency in its disposal ended then, and I must decline taking part in an attempt to give any portion of it a new direc tion. Sincerely, yours o'bt, G. Higginson.”

E. C. Bumpus and H. S. Milton, for plaintiff. S. C. Brackett and John Duff, for defendants.

MORTON, J. The declaration of trust describes the beneficiaries by name, and speaks of them as "the only living children of the late Alfred Richardson," and provides that each is to receive one-sixth of the net income during life, and after death one-sixth of the capital is to go to his or her children, if any, and, in default of issue, then equally to the surviving brothers and sisters. So far as the declaration of trust goes, nothing could be plainer than the persons for whose benefit the trust is declared; and it was competent for the presiding justice to find, on the evidence before him, and for aught that appears he did so find, that the contents of the instrument were known to Mr. Higginson, and were assented to by him as correctly setting forth the terms of the trust on which the money was paid by him to, and was received by, the trustee. The plaintiff contends, however, that the object was to benefit the heirs of Alfred Richardson, of whom he is one, and that, by ignorance, or mistake, or fraud, his name was omitted from the list of heirs found in the possession of Mr. Higginson, and that the instrument should be reformed so as to admit him as a beneficiary. It is true that there was evidence tending to show that the creator of the trust contemplated the heirs of Richardson as the objects of his bounty; but whether he would have included the plaintiff among the beneficiaries if he had known that he was alive, and what his relation to Alfred Richardson was, can be only a matter of conjecture. The plaintiff had no legal claim upon him, and, even if he had known about the plaintiff, it is possible that he still might have chosen to limit his

bounty to the living children of Alfred Richardson and their children and issue, as he has done. It is well settled that an instrument will not be reformed on the ground of mistake, except upon full, clear, and decisive proof of the mistake. Loud v. Barnes, 154 Mass. 344, 28 N. E. 271; Page v. Higgins, 150 Mass. 27, 30, 31, 22 N. E. 63; Insurance Co. v. Davis, 131 Mass. 316; Stockbridge Iron Co. v. Hudson Iron Co., 107 Mass. 291, 317; Sawyer v. Hovey, 3 Allen, 331. This case does not come up to the degree of proof required. There is no evidence of fraud. If there were, the action of the presiding justice has settled the question against the plaintiff.

The letter from Mr. Higginson to the plaintiff was properly excluded. It was written nearly eight years after the execution of the declaration of trust and the payment of the trust fund. The terms of the declaration of trust could not be varied or affected by statements made by the creator of the trust after it had been executed and carried into effect, and in the absence and without the knowledge or assent of the other parties interested. Dodge v. Nichols, 5 Allen, 548. Bill dismissed.

[merged small][merged small][merged small][ocr errors][merged small]

1. In an action on an insurance policy, the burden is on plaintiff to show compliance with conditions precedent to a right of recovery or a waiver of them by defendant.

2. The insurer wrote insured that it did not admit a liability on the policy, but reserved the question for further information. It made two demands for information concerning the loss, which insured furnished, and he then wrote the insurer demanding payment. To this the insurer did not reply, and subsequently denied any liability on the policy. Held, that the question whether the insurer had waived a condition in the policy requiring a loss to be arbitrated was for the jury.

3. An objection to a complaint for failure to plead the performance of conditions precedent or an excuse for nonperformance, as required by Pub. St. c. 167, § 2, cl. 10, should be taken by demurrer.

Exceptions from superior court, Suffolk county; Caleb Blodgett, Judge.

Action by the Lamson Consolidated StoreService Company against the Prudential Fire Insurance Company. Verdict for defendant, and plaintiff brings exceptions. Exceptions sustained.

Edwin C. Gilman and Bart E. Kemp, for plaintiff in error. Louis D. Brandeis and William H. Dunbar, for defendant in error.

MORTON, J. It is not contended that the plaintiff had not under its leases an insurable interest in the systems that were de

stroyed, and in the rentals accruing from them.

There was testimony tending to show that there was an oral contract of insurance entered into December 3d, though the policy was not issued till December 11th, and that one or more of the systems were destroyed by fire before the last-named date. We do not need to consider whether knowledge on the part of the plaintiff of the loss before the policy issued would affect its right to recover (see Mead v. Insurance Co., 158 Mass. 124, 126, 32 N. E. 945; Hallock v. Insurance Co., 26 N. J. Law, 268); nor what is the amount for which the defendant is liable if the plaintiff is entitled to maintain its action.

The defendant contends that the provision in the policy in regard to a reference, in case the parties are unable to agree as to the amount of loss, is a condition precedent to the plaintiff's right to maintain an action, and that, not having been complied with or waived as it insists, it is a bar to the maintenance of the action. The provision in the policy is the same as that in the standard form established by St. 1887, c. 214, § 60, and is as follows: "In case of loss under this policy and a failure of the parties to agree as to the amount of loss, it is mutually agreed that the amount of such loss shall be referred to three disinterested men, the company and the insured each choosing one out of three persons to be named by the other, and the third being selected by the two so chosen; the award in writing by a majority of the referees shall be conclusive and final upon the parties as to the amount of loss or damage, and such reference unless waived by the parties shall be a condition precedent to any right of action in law or equity to recover for such loss." The italics are those of the standard form as enacted, and are also in the policy. We think that this constitutes a condition precedent. It is declared to be so in express terms. But for that declaration it is doubtful if it could be so regarded. Reed v. Insurance Co., 138 Mass. 575; Clement v. Insurance Co., 141 Mass. 298, 5 N. E. 847. The policy does not provide that no action shall be brought upon it until or unless (which are the words more commonly signifying a condition precedent) the amount has been ascertained by arbitration. The condition being a condition precedent, it is incumbent on the plaintiff to show that it has complied with it or that the defendant has waived it. The plaintiff contends that there is evidence tending to show that it has been waived by the defendant. The losses occurred on different dates from December 5, 1890, to January 23, 1891, inclusive. The plaintiff sent proofs of loss to the defendant, March 10, 1891. April 13th following the defendant sent a letter to the plaintiff asking for further information in regard to certain matters, and using in the letter the following language: "Please understand we

« ΠροηγούμενηΣυνέχεια »