Cent. Dig. § 794; Dec. Dig. 303(3).] Appeal from Superior Court, Plymouth entitled to consideration, is not decisive. I which there is no liability whatever cannot be But the nature of the occupation must be wrought by entry of nunc pro tunc order. such as to contribute immediately to the promotion of the charity and physically to participate in the forwarding of its beneficent objects. Phillips' Academy v. Andover, 175 Mass. 118, 55 N. E. 841, 48 L. R. A. 550; Redemptorist Fathers v. Boston, 129 Mass. 178; Amherst College v. Assessors of Amherst, 173 Mass. 232, 53 N. E. 815. [3, 4] The burden is upon one seeking an exemption from taxation to make out his right to it. The finding of the judge was against the defendant. It cannot be said in the light of the principles which have been established that the facts in the case at bar show that the property of the defendant was exempt from taxation. The meetings of officers or trustees occasionally at the house, and the leaving of some of the furniture there, do not constitute actual occupancy of the building for the purpose of a home. The rulings given were sufficiently favorable to the defendant and no reversible error has The function of a "nunc pro tunc order" generally is put upon the record and to render efficacious some finding, direction, or adjudication of the court, made actually or inferentially at an earlier time, which by accident, mistake, or oversight was not made matter of record, or to validate some proceeding actually taken, but by oversight or mistake not authorized, or to prevent a failure of justice resulting, directly or indirectly from delay in court proceedings subsequent to a time when a judgment, order, or decree ought to and would have been rendered, save that the cause was pending under advisement. [Ed. Note. For other cases, see Motions, Cent. Dig. § 67; Dec. Dig. 56(2). For other definitions, see Words and Phrases, First and Second Series, Nunc Pro Tune Or der.] 2. DIVORCE 245(1), 303(1)-DECREE-MODI FICATION. Under Rev. Laws, c. 152, § 33, as to revision of decrees for alimony, etc., courts have extensive power to modify and revise previous decrees as to alimony and the care and support of children. [Ed. Note.-For other cases, see Divorce, Cent. Dig. 88 692, 695, 793; Dec. Dig. 245(1), 303(1).] - NUNC PRO 3. DIVORCE ~303(3) DECREE Divorce by Nellie M. Perkins against Harry K. Perkins. From a "modified decree," revising a decree respecting custody and support of children made in connection with the divorce, libellee appeals. Affirmed. Robt. H. O. Schulz, of Boston, for appellant. "modified decree" entered by a judge of the * the decree relative to medical service for the children. That motion had been heard and a written decision made by the judge, although no decree had been entered, but nothing had been said by the judge or parties about a nunc pro tunc entry. On November 4, 1915, a decree was entered modifying the earlier decree by increasing the monthly payments to be made to the libellant by the libellee "for the support, maintenance, and providing the necessary medical attention for said minor children.". The earlier decree was further modified so that "the mother is to be allowed to make the selection of proper medical attendance for the care of said children, which modification is to take effect as of the last Monday of December, 1910." [1] The function of a nunc pro tunc order in general is to put upon the record and to render efficacious some finding, direction or adjudication of the court made actually or inferentially at an earlier time, which by For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [2] The power of the courts over alimony and the support and care of children in connection with divorce is broad. Extensive revision and alteration of previous decrees is authorized and exercised. R. L. c. 152, § 33; Burrows v. Purple, 107 Mass. 428; Graves v. Graves, 108 Mass. 314; Parker v. Parker, 211 Mass. 139, 97 N. E. 988; Brown v. Brown, 222 Mass. 415, 111 N. E. 42. Appropriate orders as to the support and care of children are an important part of proceedings for divorce. They may be modified from time to time to meet changing conditions. The order of the superior court that its modification of the earlier decree should accident, mistake or oversight was not made | 132 Ind. 95, 100, 31 N. E. 670; Cox v. Gress, matter of record, or to validate some pro- 51 Ark. 224, 231, 11 S. W. 416; Cleveland ceeding actually taken but by oversight or Leader Printing Co. v. Green, 52 Ohio St. mistake not authorized, or to prevent a fail- 487, 40 N. E. 201, 49 Am. St. Rep. 725; Jilure of justice resulting, directly or indirect- lett v. Union Nat. Bank, 56 Mo. 304, 306. ly from delay in court proceedings subse- It has been held that a defect in a judgment, quent to a time when a judgment, order or order or decree which expressed exactly the decree ought to and would have been entered, intention of the court at the time when it save that the cause was pending under ad- was made cannot be remedied by a nunc pro visement. Patterson V. Buckminster, 14 tunc entry, and that an initial infirmity canMass. 144; Perry v. Wilson, 7 Mass. 393; not be bolstered by the entry of a new order Terry v. Briggs, 12 Cush. 319; Tapley v. to take effect retrospectively as of a date Martin, 116 Mass. 275; Mitchell v. Overman, anterior to that on which in fact it is en103 U. S. 62, 26 L. Ed. 369; Martin v. Tap- tered. Gray v. Brignardello, 1 Wall. 627, ley, 119 Mass. 116; Rugg v. Parker, 7 Gray, 636, 17 L. Ed. 692; Cuebas v. Cuebas, 223 172. Exemplifications of various aspects of U. S. 376, 390, 32 Sup. Ct. 277, 56 L. Ed. 476. this rule are found in the entry of nunc pro tunc orders in cases where, after verdict but before final judgment, a statute on which liability was founded has been repealed (Springfield v. Worcester, 2 Cush. 52, 62; Whiting v. Whiting, 114 Mass. 494), a defendant has deceased in an action which did not survive (Tapley v. Goodsell, 122 Mass. 176, 181; Kelley v. Riley, 106 Mass. 339, 8 Am. Rep. 336; Reid v. Holmes, 127 Mass. 326, 328; Wilkins v. Wainwright, 173 Mass. 212, 53 N. E. 397), the statute of limitations has run in a case reversed on writ of error (Curran v. Burgess, 155 Mass. 86, 28 N. E. 1135), and a mistake has been made as to interest (New Orleans v. Warner, 176 U. S. 92, 20 be entered nunc pro tunc was within its Sup. Ct. 280, 44 L. Ed. 385). Where a receiv-power. Both parties were before the court. er has omitted to procure an antecedent or- So far as their rights as to one another are der authorizing the conduct of litigation by concerned, they are concluded by the order. him in the court of another jurisdiction, "an [3] In order to prevent misapprehension order nunc pro tunc submitting the question it ought to be said that the order cannot so litigated to that court" has been made. have the effect of imposing upon the libellee Attorney General v. American Legion of legal liability for the debt of Dr. Ryder for Honor, 196 Mass. 151, 163, 81 N. E. 966. services rendered subsequent to the last MonJudgment upon a bond which ought to have day of December, 1910, and prior to the enbeen entered before reference to an assessor, try of the decree here assailed. It already but which was not so entered, may be made had been decided that, under the facts and to take effect as of an earlier day. Choate the decree existing at the time those servv. Arrington, 116 Mass. 552; Donaher v. ices were rendered, there was no liability Flint, 188 Mass. 525, 528, 74 N. E. 927. See, therefor on the part of the libellee. Ryder also, Cowley v. McLaughlin, 137 Mass. 221, v. Perkins, 219 Mass. 525, 107 N. E. 387. It and Russia Cement Co. v. LePage Co., 174 would be beyond the power of a court to esMass. 349, 354, 55 N. E. 70. Where a statute re- tablish, by the entry of a nunc pro tunc quired commissioners to be appointed by the order authorizing the libellant to employ any court within a certain time, and the proceed-physician she chose, a legal liability for such ing, although seasonably begun, was contest-employment of a physician by her at a time ed as to its constitutionality until after the time limited had expired, appointment was made to take effect as of an earlier date. Agawam v. Hampden, 130 Mass. 528, 539. Since St. 1885, c. 384, § 13, now R. L. c. 177, § 4, it has been provided by express statute that the superior court may order every judgment, order or decree "to be entered as of an earlier day than the day of the entry." Our decisions have gone quite as far as those of other states in the allowance of nunc pro tunc orders and decrees. The rule sometimes has been stated in narrower terms than that here made, although decisions of other jurisdictions perhaps are not in con when she had no such authority and could not pledge the credit of the libellee therefor. A liability to a third person for a debt for which there is no liability whatever cannot be wrought by the entry of such nunc pro tune order. A new debt cannot be created at the time of the entry of such an order, to take effect as of a time long past. Liability in contract is not thus established. See Hanscom v. Malden & Melrose Gas Light Co., 220 Mass. 1, 107 N. E. 426. There is nothing in the opinion in Ryder v. Perkins, 219 Mass. 525, 107 N. E. 387, which by reasonable intendment intimates that such liability thus can be made out. ties hereto by the decree appealed from, let | 257, 111 N. E. 785, L. R. A. 1916D, 1006. the entry be Decree affirmed. (225 Mass. 408) BURNHAM v. LINCOLN et al. (Supreme Judicial Court of Massachusetts. Norfolk. Jan. 4, 1917.) 1. ACTION 27(2)—CONTRACT OR TORT-RELATION OF PARTIES. There is no contractual relation between the seller of still water in carboys and the servant of a purchaser, so as to support recovery in contract, for injuries when a carboy burst. [Ed. Note.-For other cases, see Action, Cent. Dig. §§ 183, 186-188, 192-194; Dec. Dig. 27(2).] 2. NEGLIGENCE 134(7) DANGEROUS INSTRUMENTALITIES-REASONABLE CARE-EVI DENCE. Assuming that a retailer of still water owed to servants of his customers the duty of inspecting the carboys, which were not inherently dangerous, evidence held insufficient to show a breach of such duty; the defect not being one which in the exercise of reasonable care the court could say ought to have been discovered. [Ed. Note. For other cases, see Negligence, Cent. Dig. § 267; Dec. Dig. 134(7).] Report from Superior Court, Norfolk County; Patrick M. Keating, Judge. Action by Helen L. Burnham against W. Irving Lincoln and others. Judgment directed for defendant, and case reported on stipulation of parties. Judgment ordered to be entered on the verdict. Berry & Bucknam, of Boston, for plaintiff. A. P. Worthen, of Boston, for defendants. The plaintiff proceeds on the theory that the defendant owed her the duty of exercising reasonable care with regard to the condition of the carboy. See Elliott v. Hall, 15 Q. B. D. 315. Assuming this to be so, the evidence would not warrant a finding that there was a breach of that duty. There was nothing inherently dangerous in the bottle or its contents. Lebourdais v. Vitrified Wheel Co., 194 Mass. 341, 80 N. E. 482; Kusick v. Thorndike & Hix, Inc., 224 Mass. 413, 112 N. E. 1025. The fact, discovered after the accident, that one side of the carboy was thicker than the other, must be considered in connection with the testimony of the plaintiff's expert that the two sides are never of the same thickness, due to the process of glass blowing. It was not a defect that was apparent to a nonexpert. And it was known to the trade that these bottles are always inspected by the manufacturer. The theory of the expert was that the explosion was due to the contraction of the glass, caused by contact with water of somewhat warmer temperature. He further testified that this was "the first time he had ever heard of anything happening just like this"; and on all the evidence such an occurrence was theretofore unheard of. these facts it cannot be said that the defendant by the exercise of reasonable care would have foreseen that such an unprecedented occurrence was likely to happen. The plaintiff has not shown that her injury was due to the defendant's faflure to exercise reason On loid Co., 196 Mass. 440, 444, 82 N. E. 682, 15 L. any duty he owed her. See Leavitt v. FiberR. A. (N. S.) 855. The trial judge rightly directed a verdict for the defendant. In accordance with the report judgment must be entered on the verdict; and it is So ordered. (225 Mass. 428) DE COURCY, J. On the plaintiff's testi-able care and prudence in the discharge of mony, while she was employed as a nurse in the family of one Morse, and was pouring spring water from a carboy into a pitcher, there was a loud noise like an explosion, the whole upper half of the carboy broke into fragments, pieces of broken glass flew about with great force, and some of them struck her hand causing the injury complained of. The water was not carbonated but was a still water in its natural state. It had been sold to the plaintiff's employer a few days before by the defendant, and delivered in the five gallon carboy, which was lent by the defendant until the contents should be used. The defendant did not manufacture the carboys used by him, nor did he sell them. They were bought by him from dealers in good standing and at the usual price for goods of the best quality. He testified that this carboy probably had been used for a year or more, that it was his custom to examine the carboys when washing and refilling them, that so far as he knew this bot-to delegate to a third party the determination tle was not defective when delivered to Mr. Morse, and that he "never had anything like this happen before." [1, 2] The action was "in contract or tort"; but there was no contract relation between the parties. Gearing v. Berkson, 223 Mass. CHISHOLM v. ROYAL INS. CO., Ltd. The adjuster of a company which insured plaintiff's automobile against loss or damage by theft by a policy limiting the company's liability to the actual cost of repairing or replacing the parts damaged or destroyed, while he may be assumed to have authority to bind the company in the ascertainment of the damage actually sustained because of the theft and the cost of repairing it, and might have authority of what repairs were made necessary by the theft, has no implied authority to bind the company to pay for putting the machine in as good condition as new, including the cost of repairs made necessary by wear and tear and by a previous accident not covered by the policy. [Ed. Note. For other cases, see Insurance, Cent. Dig. § 1412; Dec. Dig. 565.] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Exceptions from Superior Court, Middlesex, the plaintiff, during his cross-examination, County; Patrick M. Keating, Judge. corroborated this, yet there was some eviAction by Finlay Chisholm against the dence for the jury that the adjuster agreed Royal Insurance Company, Limited. Verdict that the company would pay for putting for the plaintiff for part of the amount the machine "into perfect repair." The claimed, and plaintiff excepts. Exceptions superintendent of the Ford service station overruled. testified that the plaintiff ordered new parts, and "wanted the car put in as good condition as new"; and, in substance, that the repairs actually made were due to the wear and tear and old age of the car, not to the damage sustained on account of the theft. Qua, Howard & Rogers, Albert S. Howard, and Melvin G. Rogers, all of Lowell, for plaintiff. Warner, Warner & Stackpole, of Boston, for defendant. DE COURCY, J. The plaintiff's automoUnder its contract the defendant insured bile was stolen after eight o'clock in the the plaintiff against the loss or damage due evening, was abandoned by the thief, and to the theft of his automobile. In the absence when found about midnight was in a damag- of evidence as to the actual authority of the ed condition. The car had been used by the adjuster, it is to be assumed that he had plaintiff in his business as a plumber during power to bind the company in the ascertainthe two years he owned it, had not been paint- ment of what that damage was, and in aded for some time, and had been damaged in justing the cost of repairing it. See Searle an accident shortly before the theft. The v. Dwelling House Ins. Co., 152 Mass. 263, policy insured the plaintiff, among other 25 N. E. 290. The condition of the automothings, "against loss or damage by theft, bile, so far as not apparent, could be asrobbery or pilferage in excess of $25." It provided that: "In the event of loss or damage under this policy, this company shall be liable only for the actual cost of repairing, or, if necessary, replacing the parts damaged or destroyed." The further clause giving the defendant an option "to repair, rebuild or replace" the property on giving the specified notice of its intention to do so, is now immaterial as the defendant did not avail itself of this provision and the plaintiff does not rely on it. It was admitted that the plaintiff had complied with all the terms of the policy relating to notice and proof of loss; and that the defendant had waived the provision relating to appraisal. certained by proper examination. It would I be obvious that in some particulars this condition could not be due to the recent theft; while some other items of the damage naturally would be attributed to the conduct of the thieves during the three or four hours they had the car. The only question open to dispute would relate to a few items which might or might not be attributed to the conduct of the thieves. Even assuming (the defendant having waived the provision relating to appraisal) that the adjuster had authority to refer this debatable question to the Ford company, as an impartial and competent third party, he could not, on the facts disclosed, bind the defendant by an alleged Under the rulings and instruction of the agreement which purported not only to dele trial judge the jury apparently awarded gate to the third party all his powers as an the plaintiff the cost of having the machine adjuster, but to make the insurance company restored to the condition in which it was liable for damages that plainly were not at the time of the theft. His contention, covered by the policy. Church had authority based on his exceptions, is that he was en- only to ascertain and adjust the loss sustaintitled, by reason of an alleged agreement with ed by the theft of the automobile; and there the defendant's adjuster, to recover the is nothing in the record to show that the much larger sum expended by him in putting company ratified his alleged agreement to the machine in perfect repair, regardless of whether the repairs were made necessary by the theft alone. give the plaintiff a practically new car, or that it waived the provision of the policy limiting its liability to the actual cost of repairing, or, if necessary, replacing the parts damaged or destroyed by the theft. 1 Clement's Fire Ins. 46; Ruthven Bros. v. Am. Fire Ins. Co., 92 Iowa, 316, 60 N. W. 663; Albers v. Phoenix Ins. Co., 68 Mo. App. 543; Phoenix Ins. Co. v. Lawrence, 4 Metc. (Ky.) 9, 81 Am. Dec. 521; Grier Bros. v. Northern One Church, a member of a firm of insurance adjusters, after looking over the car did not agree with the estimate of damage furnished by the plaintiff's expert. He suggested that the plaintiff take or send his car to the Ford service station in Cambridge, and leave it to them to determine what damage was done, and to make the repairs. On the tes- Ins. Co., 183 Pa. 334, 39 Atl. 10. timony of Church the agreement between There was no error in the judge's refusal them was that the insurance company should to give the instructions requested, or in the pay for putting the car in as good condition portions of his charge excepted to. as it was in before it was stolen. Although | Exceptions overruled. (225 Mass. 439) GARDNER v. METROPOLITAN LIFE (Supreme Judicial Court of Massachusetts. Suffolk. Jan. 4, 1917.) ted, had full authority to act in the matter for the defendant. This letter was delivered to the plaintiff by one Gibson and is as fol lows: "September 3, 1896. "Mr. C. J. Gardner, Supt., 223 Essex Street, 1. INSURANCE 308-POLICY-CONSTRUCTION Salem, Mass.-Dear Sir: This letter will he -"LEAVE THE SERVICE." handed to you by Mr. Launcelot Gibson, whom we have thought it best to make superintendent at Salem in your stead. His superintendency will date from the presentation of the letter and you will please place him in complete possession of the office and the company's property, introduce him to the members of your staff, and remain with him during the week of his arrival. We will in the event of your meeting our request forward you your salary for that week. Under a policy of insurance providing that the policy shall be void whenever the insured shall leave the service of the company, except by cause of his death, the word "leave" should be construed to mean "voluntarily leave," and did not apply if the insured was arbitrarily and without justifiable cause discharged. [Ed. Note. For other cases, see Insurance, Cent. Dig. $$ 700, 701; Dec. Dig. 308.] 2. INSURANCE 668(4)-FORFEITURE-DISCHARGE-QUESTION FOR JURY. Evidence held to present a jury question whether a servant of an insurer, holding a policy to become void if he should leave the company, was discharged or voluntarily resigned. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1735-1740, 1758-1760; Dec. Dig. 668(4).] 3. INSURANCE 665(3)-FORFEITURE-DISCHARGE-EVIDENCE-QUESTION FOR JURY. Evidence held to show that the servant of an insurer, holding a policy to become void should he leave the insurer, was peremptorily dismissed. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1711-1716; Dec. Dig. 665(3).] Report from Superior Court, Suffolk County; Frederick Lawton, Judge. Action by Clarence J. Gardner against the Metropolitan Life Insurance Company. Case reported. Judgment for plaintiff. Carver & Carver, of Boston, for plaintiff. Butler, Cox, Murchie & Bacon and J. F. Ba-con, all of Boston, for defendant. "Our action will not be altogether a surprise to you, Mr. Gardner. We have taken it only after careful deliberation, and after we became satisfied that the change would be to the best interests of the company. "If you will forward your resignation we will` accept it to take effect from the time of Mr. Gib son's arrival. "Yours truly, E. J. Thomas, Supt. of Agencies." On September 8, 1896, the plaintiff wrote the defendant's superintendent [Thomas] the following letter: "My resignation is hereby tendered and I would ask that same be accepted. Same to take effect this day." The question is whether the policy became void after the time when the plaintiff was no longer in the service of the defendant. It is the contention of the defendant that when the plaintiff's employment ended for whatever reason, even by his discharge by the defendant, the policy was terminated. The defendant also contends that the plaintiff voluntarily resigned his position. Subject to the defendant's exception, the CROSBY, J. This is an action brought up- presiding judge submitted to the jury the on a policy of insurance dated May 14, 1894, question, "Was the plaintiff discharged?" for $1,000, issued to the plaintiff by the de- The answer was in the affirmative, and therefendant. The policy is upon the endowment after the parties waived further trial by plan and is payable at the expiration of 20 jury. The judge found and ordered judgyears from its date. It contains the follow-ment for the plaintiff for the amount named ing provision: in the policy with interest. "This policy shall become void whenever the insured named therein shall leave the service of the said company except by cause of his death." The case is presented upon a report made by a judge of the superior court, from which it appears that the policy was issued by the defendant to the plaintiff as a prize for his work as superintendent of the defendant's branch office at Brockton in this commonwealth. It is agreed that, aside from the clause in the policy above quoted: "All things had been done and performed by the plaintiff necessary to entitle him to recover in this action." On, and for some time before, September 7, 1896, the plaintiff was in the service of the defendant as superintendent of its branch office in Salem. On that day a letter was delivered to him dated September 3, 1896, and signed by one Thomas, superintendent of agencies of the defendant, who, it is admit [1] We are of opinion that the words "shall leave the service of the company" in the clause in question, cannot be held to mean that the policy becomes void if for any reason the plaintiff ceases to be in the employ of the company; but that these words properly construed, signify that the policy shall become void if the plaintiff should by his own act abandon his employment in the service of the defendant. The word "leave," as used by the parties, means to leave vol untarily, and does not apply if the plaintiff is arbitrarily and without justifiable cause discharged by the defendant. This interpretation would seem to be in accord with the natural and ordinary meaning of the word construed in connection with the clause where it appears. It was said by this court in Price v. Minot, 107 Mass. 49 (a case which presented a question very similar to that in the case at bar), that: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |