Appeal from Superior Court, Suffolk County; John H. Hardy, Judge.

Whipple, Sears & Ogden, of Boston (Sherman L. Whipple and Lothrop Withington, both of Boston, of counsel), for libellant.

Action of tort by Richard Moran to recover damages of E. Frederick Murphy, a physician, who, it was alleged, wrongfully CARROLL, J. The libellant petitioned diagnosed a case as of pregnancy, whereby for a divorce, alleging cruel and abusive plaintiff was subjected to bastardy proceed- treatment. She testified that she was marings. There was judgment for defendant, ried in 1910; that in 1916 her husband and plaintiff appeals. Judgment affirmed. "stayed away from her longer than he had John J. Kelly, of Boston, for appellant. ever in four years and went out many evenings"; that when she spoke to him about this he said "he had been going * with a girl in Boston"; that she became unhappy, could not sleep, "had extreme attacks of vomiting"; that "she expostulated with him and told him of her suffering" and he said he could not give up the girl; that she was worried, became sick and has not completely recovered her health. additional evidence of her physical condition, and that her health was injured by her husband's conduct; and also, testimony tending to show his adultery.

PER CURIAM. [1, 2] This case comes be fore us on appeal from a judgment in favor of the defendant. It is an action at law. An appeal in an action at law under R. L. c. 173, § 96, brings before the full court for examination errors "founded upon matter of law apparent on the record." The writ, declaration, answer, finding in favor of defendant, motion for judgment and allowance thereof, and the appeal of the plaintiff, in the case at bar constitute the record. Manifestly they disclose no error of law. There is printed as a part of this appeal what purports to be a copy of all the evidence. This is no part of the record. The only way to bring the material evidence before this court, in an action at law, is by exceptions or by report. No exceptions appear to have been taken. There is no report by the judge who tried the case. Given v. Johnson, 213 Mass. 251, 100 N. E. 369; Regal v. Lyon, 212 Mass. 230, 98 N. E. 698; Cressey v. Cressey, 213 Mass. 191, 99 N. E. 972. Judgment affirmed.

AS-STATUTE.

A wife's libel for divorce, alleging cruel and abusive treatment, was properly dismissed, where there was no evidence of physical violence, and libelant's illness was caused solely by the alienation of her husband's affections, his staying away many evenings, and his lack of personal attention, he having told her that he was going with a girl, and that he could not give her up, since neither words nor acts which do not involve physical violence affecting the other party are sufficient to constitute cruel and abusive treatment within the divorce statute (Rev. Laws, c. 152, § 1), unless it is shown that the language was uttered or the acts committed with malicious intent and to injure libelant.

There was

The judge found there was no evidence of physical violence, that during the libellant's sickness she lacked no attention "except her husband's personal attention," that her health was impaired "because of the alienation of his affections," and that her testimony and that of her witnesses was true. He dismissed the libel and reported the case, his order to be reversed if upon the facts he was warranted in granting the divorce.

In dismissing the libel the judge was right. On the ground alleged there was no evidence to warrant the granting of the petition. The divorce was not sought because of the husband's adultery, and however cruel his conduct may have been-and although it may have seriously injured her health-the orfense and his confession of it did not amount to cruel and abusive treatment within the divorce statute. R. L. c. 152, § 1. In WV. W, 141 Mass. 495, 6 N. E. 541, 55 Am. Rep. 491, it was held that the commission by the husband of a disgusting act in the presence of his wife, which injured her health, was not cruel and abusive treatment within the statute, in the absence of evidence that the act was done with the intention of injuring her. "The words 'cruel and abusive treatment' seem to import on their face conduct directed towards the other party, and with a malevolent motive." There was no evidence to support a finding that the acts of the husband were committed

Report from Superior Court, Suffolk Coun- with such motive, and there was nothing to ty; Jabez Fox, Judge.

indicate that the confession of his guilt and his other statements were made with the purpose of injuring his wife. Language may be so irritating and so frequently used as to permit the granting of a divorce because of cruel and abusive treatment when injury

Libel for divorce for cruel and abusive treatment by Virginia Armstrong against George R. Armstrong, resulting in decree dismissing the libel without prejudice to a libel for any other cause. On report to the Supreme Judicial Court. Decree dismissing to health results from it, but where there libel ordered to stand without prejudice.

is no such purpose-although the libellant's

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

health was severely affected-a divorce can-1 not been treated by a doctor, was in good health, and that such statement was substantially correct, although he had been treated for la grippe, heartburn, and sour stomach.

Said application further provides: "I hereby agree that the policy shall not take effect unless I am alive and in good health at the time of its delivery to me; nor then unless the first premium is paid in cash ment is accepted by the company." or a note for extension of time for such pay

The policy contains the following provision:

"All statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties, and no statement made by the insured shall avoid this policy unless it is contained in the written application therefor."

the amount of the first annual premium with what have you ever consulted a physician or interest, and to Oren Root, one of the chil- surgeon? Nothing." dren $8.15 for the first annual premium on said policy with interest. The policy has not been paid. Appellant paid to the Monroe circuit court $3.60 and delivered to the clerk the $50 note given by the insured to Ray and Hostetler on May 31, 1912. Once about seven or eight years prior to the finding the insured had heartburn and called upon and got some tablets therefor from Dr. Andrews. In the year 1909, the insured had a sour stomach and received medicine therefor from Dr. Matlock. In the winter of 1910, the insured had a slight attack of la grippe and called upon Dr. Matlock for which he received medicine from Dr. Matlock. Appellant did not learn that the insured had suffered from heartburn or la grippe or had called upon a physician until May 24, 1913. Each of these were temporary indispositions in their nature, and the insured immediately apparently completely recovered from each of them and appeared sound and well. Neither of them seemed to affect the general soundness and healthfulness of his system, nor tended to undermine or weaken his constitution. There was no fraud in the application for said insurance. The court concluded upon these facts that the law was with appellee, and that they were entitled to recover $1,107.50 and costs. Appellant filed a motion for a new trial which was overruled.

[1] The only question raised against the sufficiency of the complaint is that Mary Root, the widow, was not a "legal heir" of her husband, and was therefore improperly joined as a party plaintiff. A widow, while not strictly an heir of her deceased husband, in many instances falls within the designation of heirs. Glass v. Davis, 118 Ind. 593, 21 N. E. 319; Wiseman v. Wiseman, 73 Ind. 112, 38 Am. Rep. 115. But even though she may not be a "legal heir" by virtue of her. right as widow to share in the estate of the assured, yet, if she is entitled to share as distributee of her husband's personalty, she is within the term "legal heirs," as used in life insurance policies. Anderson v. Groesbeck, 26 Colo. 3, 55 Pac. 1086; Lyons v. Yerex, 100 Mich. 214, 58 N. W. 1112, 43 Am. St. Rep. 452; 25 Cyc. 888. The complaint was not insufficient in this regard.

It is first insisted that the conclusions of law are erroneous, in that the facts do not show that a prepayment of premium was waived. Under the facts found, this was not necessary. The finding is that the premium was paid in advance and received and accepted by appellant.

[2] Appellant further contends that the conclusions of law are erroneous, in that it appears from the findings that the insured suffered an attack of la grippe, for which he consulted a physician and received medicine; that having denied consulting any physician for anything, and having agreed that the statements in the application were material, and appellant having no knowledge of the facts concealed, the conclusions of law should have been in its favor.

This court, in a recent case (Prudential Ins. Co. v. Sellers, 54 Ind. App. 326, 102 N. E. 894), had occasion to consider a similar contract and certain alleged fraudulent answers in the application therefor, and we there held that a question in an application, as to whether the applicant had been attended by a physician within three years for any complaint, might be honestly interpreted to mean a treatment for any serious disease, and that her answer that she had not, under the evidence, warranted the jury in finding that her answer was substantially true. In that case the inquiry was limited to three years, while in the instant case it covered applicant's entire life, which would be only a better reason for the application of the principle here. The language of the contract in that case, as in the present contract, expressly provided that all statements made by the insured in the absence of fraud should be deemed representations and not warranties. The trial court expressly found that there was no fraud in the application for said insurance, and therefore the answers must be construed as representations, and as such it is only necessary that they be substantially true. Prudential Ins. Co. v. Sellers, supra. The findyou ever had any of the following diseases? with Drs. Andrews and Matlock were for ing of facts shows that the consultations (a) Dyspepsia or indigestion?

As material to the questions presented, we set out certain provisions of the application and policy of insurance. The application contains the following:

"I hereby agree that each statement made herein and in part 2 of this application by whomsoever they be written are full, true and complete, and that each of the same is material to the risk. (Part 2.) (5)_Are you now in sound health? Yes.

No.

Have

(17) Except as you have previously stated, for temporary indispositions in their nature and

"There is nothing serious about that kind of trouble. Most everybody has it. Heartburn is a mere symptom. The remedy given corrected the symptom." Witness saw the insured along until he moved away in 1912, and so far as he knew there was no subsequent trouble. Dr. Truit, as a witness for appellant, testified that the physical condition of the insured would largely determine his insurability. Not every applicant having suffered from heartburn or la grippe would be rejected. If an applicant had fully recovered from la grippe, his application would not be rejected.

did not affect the general soundness and, ing more or less than a sour stomach. healthfulness of the insured, nor weaken his constitution. The facts found are admitted to be true for the purpose of the exceptions to the conclusions of law. We hold therefore that, upon the effect of the answers to the questions in the application, the facts of this case are controlled by the law as laid down in the case cited, and that the court did not err in its conclusions of law on the facts found. See, also, Metropolitan Life Ins. Co. v. Johnson, 49 Ind. App. 233, 94 N. E. 785. It is finally insisted that the decision of the court is contrary to law. This contention is based upon the principle of law that, where there is proof pertinent to an issue on which the court ought to have found facts which are not found, the remedy must be by a motion for a new trial on the ground that the finding is contrary to law, as a failure to find such facts thereby impliedly finds that they are not proven and in such respect the finding is clearly contrary to law. Ex parte Walls, 73 Ind. 95, 110.

[3] Without setting out more of the evidence, it is sufficient to say that there is evidence tending to support the decision of the trial court, under the principles of law heretofore announced, and hence the court did not err in overruling the motion for a new trial.

Judgment affirmed.

(229 Mass. 563)

BLAISDELL v. INHABITANTS OF TOWN
OF STONEHAM.

(Supreme Judicial Court of Massachusetts.
Middlesex. March 4, 1918.)

1 MUNICIPAL CORPORATIONS 747(1)—RESPONSIBILITY OF TOWN FOR ACTS OF "PUBLIC OFFICER"-SurveyOR OF HIGHWAYS.

A town officer charged with the duties of a surveyor of highways is a "public officer," and not an agent, employé, or officer of the town, which is not responsible for his acts in doing the public work of diverting surface water from a street into a culvert.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Public Officer.]

There is evidence in the record that the insured was in apparent good health at the time of the application, that he was in good health at the time the policy was delivered, and that the appellant company received and accepted settlement in full for the first premium. The soliciting agent of appellant company testified that the insured was in apparent good health at the time of making his application and was in good health at the time the policy was delivered. The examining physician for appellant company, and still employed by it, testified that the tests and examinations made by him showed the insured to be in good physical condition and reveal ed no disease or ailments of any kind and his lungs and stomach appeared sound and that he pronounced him a number one insurance risk. The Dr. Matlock, referred to in the finding, testified: That he treated the insured in 1909 for a temporary ailment of the stomach from which he recovered. "He did not come back a second time." That in 1910 he went to insured's home to see him. The insured had what is commonly called the grippe. Saw the insured three times, gave him the usual remedy for that malady. Saw him afterwards. He had recovered from it. The matters were temporary ailments and he yielded readily to treatment. The ailments did not in any way affect or impair his constitution. "A man who has once had la grippe The construction of a gutter and catchwould possibly be more apt to take it than basins for the drainage of surface water from a one who had never had it." "I would not be street into a brook by the highway surveyor of able to say that the attack of la grippe that a town did not make the brook a "sewer" or I treated Mr. Root for would have any partic-"drain" under Rev. Laws, c. 49, as to them. ular effect on his next attack." "I would not say that one that has had a severe attack of grippe is more apt to have an attack of grippe than one who has never had it." Dr. Andrews testified that he treated the insured in 1907 and 1908 for heartburn, which is noth

2. MUNICIPAL CORPORATIONS 404(2)—LIA-
BILITY AT COMMON LAW FOR DIVERSION OF
SURFACE WATER FROM STREETS-STATUTE.
A property owner's action of tort at common
law will not lie against a city or town for di-
verting surface water from its streets to keep
them safe, and causing it to flow upon adjoin-
ing premises, even when the surface water is
drained into a culvert or water course; the rem-
edy being under St. 1917, c. 344, pt. 4, § 21,
providing that towns shall pay damages caused
by repairs to highways.

3. MUNICIPAL CORPORATIONS 270-DRAIN
-BROOK AS "SEWER" OR "DRAIN"-STAT-

UTE.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Drain; Sewer.]

Exceptions from Superior Court, Middle sex County; Franklin G. Fessenden, Judge. Action by Alice L. Blaisdell against the

Inhabitants of the Town of Stoneham. Ver-, ing the street reasonably safe and convenidict for defendant, and plaintiff excepts. ent for travel. He was not an agent, emJudgment ordered for defendant. Whipple, Sears & Ogden, of Boston, for plaintiff. H. H. Richardson, of Stoneham,

for defendant.

CARROLL, J. The plaintiff is the owner of real estate on the westerly side of Waverly Street in Stoneham. High Street is north of the plaintiff's land. To the north and east of her property there is a rising grade for a distance of one-half to three quarters of a mile; and a brook, flowing in a westerly direction through the lands of various owners into a culvert under Waverly Street, enters the plaintiff's premises. Originally, the street drainage from Waverly and High Streets was carried through gutters on both sides of Waverly Street past the plaintiff's estate to another brook on Elm Street. In 1907 openings were made in the culvert through which the brook flows under Waverly Street and iron gratings were placed in the gutters which turned the water into the culvert. This action is for damages caused by the diversion of the surface water causing the brook to overflow its banks, fill up the pond on the plaintiff's land, and in other ways injure her property.

We must assume from the agreed statement of facts and the evidence that the work of opening the culvert and locating the catch-basins or gratings was done by, or by the authority of, the board of public works of Stoneham (St. 1902, c. 263); which board had the care of highways, drains and catchbasins, with the powers and duties of surveyors of highways (R. L. c. 25, §§ 85, 86).

[1] An officer charged with the duties of a surveyor of highways is a public officer, and not an agent of the town. In diverting | the surface water from Waverly Street into the culvert, he was doing a public work and was in the performance of his duty in keep

ployé or officer of the town in doing this work, the relation of principal and agent did not exist between him and the defendanthe was executing a public duty as a public officer-and for his acts the town is not responsible. Dupuis v. Fall River, 223 Mass. 73, 111 N. E. 706, and cases cited.

[2] An action of tort at common law will not lie against a city or town for diverting the surface water from its streets in order to keep them safe, and causing it to flow upon adjoining premises, even when the surface water is drained into a culvert or water course. The remedy is under the statute. R. L. c. 51, § 15, now St. 1917, c. 344, pt. 4, § 21; Woodbury v. Beverly, 153 Mass. 245, 26 N. E. 851; Bainard v. Newton, 154 Mass. 255, 27 N. E. 995; Holleran v. Boston, 176 Mass. 75, 57 N. E. 220.

[3] It does not appear that the town ever took any action with respect to the gutters, the culvert or the catch-basins; and no vote specifically authorizing their installation appears in the town records. See Smith v. Gloucester, 201 Mass. 329, 87 N. E. 626; Dupuis v. Fall River, supra; Lead Lined Iron Pipe Co. v. Wakefield, 223 Mass. 485, 112 N. E. 237; Bolster v. Lawrence, 225 Mass. 387, 389, 390, 114 N. E. 722, L. R. A. 1917B, 1285. The town did not assume to perform the work by means of its agents, as in Waldron v. Haverhill, 143 Mass. 582, 10 N. E. 481; Butman v. Newton, 179 Mass. 1, 60 N. E. 401, 88 Am. St. Rep. 349. And the construction of the gutter and catch-basins for the drainage of surface water into the brook did not make it a sewer or drain under R. L. c. 49. Cases like Bates v. Westborough, 151 Mass. 174, 23 N. E. 1070, 7 L. R. A. 156, and Diamond v. North Attleborough, 219 Mass. 587, 107 N. E. 445, are not applicable.

According to the terms of the report, judgment is to be entered for the defendant. So ordered.