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entitled to consideration, is not decisive. / 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 procent. Dig. $ 794; Dec. Dig. Om 303(3).]
[Ed. Note. For other cases, see Divorce, motion of the charity and physically to participate in the forwarding of its beneficent Appeal from Superior Court, Plymouth objects. Phillips' Academy v. Andover, 175 County; John H. Hardy, Judge. Mass. 118, 55 N. E. 841, 48 L. R. A. 550; Divorce by Nellie M. Perkins against Redemptorist Fathers v. Boston, 129 Mass. Harry K. Perkins. From a “modified de178; Amherst College v. Assessors of Am- cree,” revising a decree respecting custody herst, 173 Mass. 232, 53 N. E. 815.
and support of children made in connection [3, 4] The burden is upon one seeking an with the divorce, libellee appeals. Affirmed. exemption from taxation to make out his
Robt. H. O. Schulz, of Boston, for appelright to it. The finding of the judge was
lant. against the defendant. It cannot be said in the light of the principles which have been
RUGG, C. J. This is an appeal from a established that the facts in the case at bar show that the property of the defendant was “modified decree" entered by a judge of the exempt from taxation. The meetings of of- superior court revising a decree respecting ficers or trustees occasionally at the house, custody and support of children made in con
nection with a divorce. On June 4, 1907, and the leaving of some of the furniture there, do not constitute actual occupancy of a decree was entered which, among other the building for the purpose of a home. The matters respecting alimony, custody and suprulings given were sufficiently favorable to port of children, ordered that the libellee the defendant and no reversible error has pay “the expense of necessary medical atbeen committed.
tendance to be rendered by Dr. Burley." Exceptions overruled.
In 1911 it became necessary for one of the children to be treated by an oculist and Dr.
Ryder was employed for this purpose. It (225 Mass. 392)
was held in Ryder v. Perkins, 219 Mass. 525, PERKINS v. PERKINS.
107 N. E. 387, that the defendant, who is the (Supreme Judicial Court of Massachusetts. libellee in the case at bar, was not liable unPlymouth. Jan. 4, 1917.)
der the terms of the decree for the services 1. Motions 56(2)—“NUNC PRO TUNC OR- so rendered. When Ryder v. Perkins came The function of a “nunc pro tunc order” after that decision, a motion was made by
on for further hearing in the superior court generally is put upon the record and to render efficacious some finding, direction, or adjudica- counsel for the plaintiff, who was also countion of the court, made actually or inferential-sel for the libellant in the divorce case, for å ly at an earlier time, which by accident, mis-revision of the decree in the divorce case so take, or oversight was not made matter of record, or
to validate some proceeding actually as to include an obligation upon the libellee taken, but by oversigbt or mistake not authoriz- to pay the “necessary medical expenses for ed, or to prevent a failure of justice resulting, treatment of the two minor children directly or indirectly from delay in court pro- which have occurred up to the date of this ceedings subsequent to a time when a judgment, order, or decree ought to and would have been decree.” The divorce case was not then berendered, save that the cause was pending un-fore the court, although before that time a moder advisement.
tion has been made therein for a revision of [Ed. Note.-For other cases, see Motions, Cent. the decree relative to medical service for the Dig. $ 67; Dec. Dig. 56(2).
children. That motion had been heard and a For other definitions, see Words and Phrases, First and Second Series, Nunc Pro Tunc Or written decision made by the judge, although der.]
no decree had been entered, but nothing had 2. DIVORCE 245(1), 303(1)-DECREE-MODI- | been said by the judge or parties about a
nunc pro tunc entry. On November 4, 1915, Under Rev. Laws, c. 152, § 33, as to revision a decree was entered modifying the earlier of decrees for alimony, etc., courts have extensive power to modify and revise previous decrees decree by increasing the monthly payments as to alimony and the care and support of to be made to the libellant by the libellee children.
"for the support, maintenance, and providing (Ed. Note.-For other cases, see Divorce, Cent. the necessary medical attention for said minor Dig. $$ 692, 695, 793; Dec. Dig. Omw245(1), 303(1).)
children.". The earlier decree was further 3. DIVORCE OM 303(3) DECREE NUNC PRO
modified so that “the mother is to be allowTUNC ORDER,
ed to make the selection of proper medical It having been legally determined that a attendance for the care of said children, husband was not liable for certain medical serv- which modification is to take effect as of ices rendered children in care of his wife, lia- the last Monday of December, 1910.” bility therefor was not imposed by an order nunc pro tunc, modifying an earlier decree as  The function of a nunc pro tunc order to medical attendance for the children, allow- in general is to put upon the record and to ing the mother to make selection of proper medi render efficacious some finding, direction or cal attendance, such modification to take effect as of a date before the services were rendered, adjudication of the court made actually or for liability to a third person for a debt upon inferentially at an earlier time, which by
faim For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
accident, mistake or oversight was not made , 132 Ind. 95, 100, 31 N. E. 670; Cos 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 judginent, 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 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  The power of the courts over alimony tunc orders in cases where, after verdict and the support and care of children in conbut before final judgment, a statute on which nection with divorce is broad. Extensive liability was founded has been repealed revision and alteration of previous decrees (Springfield v. Worcester, 2 Cush. 52, 62; is authorized and exercised. R. L. C. 152, § Whiting v. Whiting, 114 Mass. 494), a defend- 33; Burrows V. Purple, 107 Mass. 428; ant has deceased in an action which did not Graves v. Graves, 108 Mass. 314; Parker v. survive (Tapley v. Goodsell, 122 Mass. 176, Parker, 211 Mass. 139, 97 N. E. 988; Brown 181; Kelley v. Riley, 106 Mass. 339, 8 Am. v. Brown, 222 Mass. 415, 111 N. E. 42. ApRep. 336; Reid v. Holmes, 127 Mass. 326, propriate orders as to the support and care 328; Wilkins v. Wainwright, 173 Mass. 212, of children are an important part of pro53 N. E. 397), the statute of limitations has ceedings for divorce. They may be modified run in a case reversed on writ of error (Cur- from time to time to meet changing condiran v. Burgess, 155 Mass. 86, 28 N. E. 1135), tions. The order of the superior court that and a mistake has been made as to interest its modification of the earlier decree should (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  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 serv. V. 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 when she had no such authority and could not time limited had expired, appointment was pledge the credit of the libellee therefor. made to take effect as of an earlier date. A liability to a third person for a debt for Agawam V. Hampden, '130 Mass. 528, 539. which there is no liability whatever cannot be Since St. 1885, c. 384, § 13, now R. L. C. 177, wrought by the entry of such nunc pro tunc § 4, it has been provided by express stat- order. A new debt cannot be created at the ute that the superior court may order every time of the entry of such an order, to take judgment, order or decree “to be entered as effect as of a time long past. Liability in of an earlier day than the day of the entry." contract is not thus established. See Hans.
Our decisions have gone quite as far as com v. Malden & Melrose Gas Light Co., 220 those of other states in the allowance of Mass. 1, 107 N. E. 126. There is nothing nunc pro tunc orders and decrees. The rule in the opinion in Ryder v. Perkins, 219 Mass. sometimes has been stated in narrower terms 525, 107 N. E. 387, which by reasonable inthan that here made, although decisions of tendment intimates that such liability thus other jurisdictions perhaps are not in con can be made out.
ties bereto by the decree appealed from, let, 257, 111 N. E. 785, L. R. A. 1916D, 1006. the entry be
The plaintiff proceeds on the theory that the Decree affirmed.
defendant owed her the duty of exercising
reasonable care with regard to the condition (225 Mass. 408)
of the carboy. See Elliott v. Hall, 15 Q. B. BURNHAM v. LINCOLN et al.
D. 315. Assuming this to be so, the evidence
would not warrant a finding that there was a (Supreme Judicial Court of Massachusetts. Norfolk. Jan. 4, 1917.)
breach of that duty. There was nothing in
herently dangerous in the bottle or its con1. ACTION en 27(2)-CONTRACT OB TORT-RELATION OF PARTIES.
tents. Lebourdais v. Vitrified Wheel Co., There is no contractual relation between 194 Mass. 341, 80 N. E. 482; Kusick v. Thornthe seller of still water in carboys and the serve dike & Hix, Inc., 224 Mass. 413, 112 N. E. ant of a purchaser, so as to support recovery in 1025. contract, for injuries when a carboy burst.
The fact, discovered after the acci[Ed. Note.--For other cases, see Action, Cent. dent, that one side of the carboy was thicker Dig. $$ 183, 186–188, 192–194; Dec. Dig. Om than the other, must be considered in con27(2).)
nection with the testimony of the plaintiff's 2. NEGLIGENCE O 134(7) DANGEROUS_IN-expert that the two sides are never of the
STRUMENTALITIES REASONABLE CARE-Evi- sanie thickness, due to the process of glass DENCE.
Assuming that a retailer of still water owed blowing. It was not a defect that was apto servants of his customers the duty of in- parent to a nonexpert. And it was known specting the carboys, which were not inherent to the trade that these bottles are always ly dangerous, evidence held insufficient to show inspected by the manufacturer. a breach of such duty; the defect not being one which in the exercise of reasonable care the The theory of the expert was that the excourt could say ought to have been discovered. plosion was due to the contraction of the
[Ed. Note: --For other cases, see Negligence, glass, caused by contact with water of someCent. Dig. § 267; Dec. Dig. ew134(7).]
what warmer temperature. He further tesReport from Superior Court, Norfolk tified that this was “the first time he had County; Patrick M. Keating, Judge.
ever heard of anything happening just like Action by Helen L. Burnham against w. this"; and on all the evidence such an ocIrving Lincoln and others. Judgment direct currence was theretofore unheard of. On ed for defendant, and case reported on stipu- these facts it cannot be said that the defendlation of parties. Judgment ordered to be ant by the exercise of reasonable care would entered on the verdict.
have foreseen that such an unprecedented Berry & Bucknam, of Boston, for plaintifr. occurrence was likely to happen. The plain
tiff has not shown that her injury was due A, P. Worthen, of Boston, for defendants.
to the defendant's fallure to exercise reasonDE COURCY, J. On the plaintiff's testi- able care and prudence in the discharge of mony, while she was employed as a nurse ioid Co., 196 Mass. 440, 444, 82 N. E. 682, 15 L.
any duty he owed her. See Leavitt v. Fiberin the family of one Morse, and was pouring
R. A. (N. S.) 855. spring water from a carboy into a pitcher, there was a loud noise like an explosion, the for the defendant. In accordance with the
The trial judge rightly directed a verdict whole upper half of the carboy broke into fragments, pieces of broken glass flew about report judgment must be entered on the ver
dict; and it is with great force, and some of them struck
So ordered. her hand causing the injury complained of. The water was not carbonated but was a still
(225 Mass. 428) water in its natural state, It had been
CHISHOLM v. ROYAL INS. CO., Ltd. sold to the plaintiff's employer a few days before by the defendant, and delivered in the (Supreme Judicial Court of Massachusetts five gallon carboy, which was lent by the
Middlesex. Jan. 4, 1917.) defendant until the contents should be used. INSURANCE 565—AUTHORITY OF ADJUSTER The defendant did not manufacture the car -ADMISSION OF LIABILITY. boys used by him, nor did he sell them. plaintiff's automobile against loss or damage
The adjuster of a company which insured They were bought by him from dealers in by theft by a policy limiting the company's liagood standing and at the usual price for bility to the actual cost of repairing or replacgoods of the best quality. He testified that ing the parts damaged or destroyed, while he this carboy probably had been used for a may be assumed to have authority to bind the
company in the ascertainment of the damage year or niore, that it was his custom to ex. actually sustained because of the theft and the amine the carboys when washing and re-cost of repairing it, and might have authority filling them, that so far as he knew this bot- to delegate to a third party the determination
of what repairs were made necessary by the tle was not defective when delivered to Mr.
the has no implied authority to bind the comMorse, and that he “never had anything like pany to pay for putting the machine in as good this happen before."
condition as new, including the cost of repairs [1, 2] The action was “in contract or tort"; | vious accident not covered by the policy.
made necessary by wear and tear and by a prebut there was no contract relation between
(Ed. Note.-For other cases, see Insurance, the parties. Gearing v. Berkson, 223 Mass. Cent. Dig. § 1412; Dec. Dig. m 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 evi. Action 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, Qua, Howard & Rogers, Albert S. Howard, and “wanted the car put in as good condiand Melvin G. Rogers, all of Lowell, for tion as new"; and, in substance, that the plaintiff. Warner, Warner & Stackpole, of repairs actually made were due to the wear Boston, for defendant.
and tear and old age of the car, not to the
damage sustained on account of the theft. DE COURCY, J. The plaintiff's automo Under 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 ad ed 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 certained by proper examination. It would provided that:
be obvious that in some particulars this con"In the event of loss or damage under this dition could not be due to the recent theft; policy, this company shall be liable only for the while some other items of the damage natuactual cost of repairing, or, if necessary, replac- rally would be attributed to the conduct of ing the parts damaged or destroyed.” The further clause giving the defendant an
the thieves during the three or four hours they option “to repair, rebuild or replace" the bad the car. The only question open to disproperty on giving the specified notice of its pute would relate to a few items which might intention to do so, is now immaterial as the or might not be attributed to the conduct of defendant did not avail itself of this pro
the thieves. Even assuming (the defendant vision and the plaintiff does not rely on it. having waived the provision relating to It was admitted that the plaintiff had com- appraisal) that the adjuster had authority to plied with all the terms of the policy relating refer this debatable question to the Ford to notice and proof of loss; and that the coinpany, as an impartial and competent defendant had waived the provision relating third party, he could not, on the facts disto appraisal.
closed, 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 give the plaintiff a practically new car, or whether the repairs were made necessary by that it waived the provision of the policy the theft alone.
limiting its liability to the actual cost of re One Church, a member of a firm of Insur- pairing, or, if necessary, replacing the parts ance adjusters, after looking over the car did damaged or destroyed by the theft. 1 Clemnot agree with the estimate of damage fur- ent's Fire Ins. 46; Ruthven Bros. V. Am. nished by the plaintiff's expert. He suggested Fire Ins. Co., 92 Iowa, 316, 60 N. W. 663; that the plaintiff take or send his car to the Albers v. Phænix Ins. Co., 68 Mo. App. 543; Ford service station in Cambridge, and leave Phænix Ins. Co. v. Lawrence, 4 Metc. (Ky.) it to them to determine what damage was 9, 81 Am. Dec. 521; Grier Bros. v. Northern 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)
ted, had full authority to act in the matter GARDNER V. METROPOLITAN LIFE for the defendant. This letter was delivered INS. CO.
to the plaintiff by one Gibson and is as foi. (Supreme Judicial Court of Massachusetts.
lows: Suffolk. Jan. 4, 1917.)
“September 3, 1896. 1. INSURANCE Om308–POLICY-CONSTRUCTION Salem, Mass.-Dear Sir: This letter will he
“Mr. C. J. Gardner, Supt., 223 Essex Street, "LEAVE THE SERVICE." Under a policy of insurance providing that we have thoughť it best to make superintendent
handed to you by Mr. Launcelot Gibson, whom the policy shall be void whenever the insured at Salem in your stead. His superintendency shall leave the service of the company, except will date from the presentation of the letter and by cause of his death, the word "leave”, should be you will please place him in complete possession construed to mean "voluntarily leave," and did of the office and the company's property, intronot apply if the insured was arbitrarily and duce
him to the members of your staff, and rewithout justifiable cause discharged.
main with him during the week of his arrival. [Ed. Note:-For other cases, see Insurance, We will in the event of your meeting our reCent, Dig. $8 700, 701; Dec, Dig. @ 308.] quest forward you your salary for that week. 2. INSURANCE 668(4)–FORFEITURE-D18
"Our action will not be altogether a surprise CHARGE-QUESTION FOR JURY.
to you, Mr. Gardner. We have taken it only Evidence held to present a jury question after careful deliberation, and after we became whether a servant of an insurer, holding a policy satisfied that the change would be to the best to become void if he should leave the company, interests of the company. was discharged or voluntarily resigned.
"If you will forward your resignation we will [Ed. Note:-For other cases, see Insurance, accept it to take effect from the time of Mr. Gib
son's arrival. Cent. Dig. 88 1735-1740, 1758-1760; Dec. Dig.
“Yours truly, Om668(4).]
E, J. Thomas, Supt. of Agencies." 3. INSURANCE m 665(3)-FORFEITURE-DISCHARGE-EVIDENCE-QUESTION FOR JURY.
On September 8, 1896, the plaintiff wrote Evidence held to show that the servant of the defendant's superintendent (Thomas) the an insurer, holding a policy to become void following letter: should he leave the insurer, was peremptorily dismissed.
"My resignation is hereby tendered and I
would ask that same be accepted. Same to take (Ed. Note.-For other cases, see Insurance, effect this day." Cent. Dig. 88 1711-1716; Dec. Dig. Om665(3).]
The question is whether the policy became Report from Superior Court, Suffolk Coun- void after the time when the plaintiff was no ty; Frederick Lawton, Judge.
longer in the service of the defendant. It is Action by Clarence J. Gardner against the the contention of the defendant that when Metropolitan Life Insurance Company. the plaintiff's employment ended for whatCase reported. Judgment for plaintiff. ever reason, even by his discharge by the de
Carver & Carver, of Boston, for plaintiff. fendant, the policy was terminated. The de Butler, Cox, Murchie & Bacon and J. F. Ba- fendant also contends that the plaintiff volcon, all of Boston, for defendant.
untarily 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 there. fendant. 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
 We are of opinion that the words insured named therein shall leave the service of "shall leave the service of the company" in the said company except by cause of his death." the clause in question, cannot be held to
The case is presented upon a report made mean that the policy becomes void if for any by a judge of the superior court, from which reason the plaintiff ceases to be in the emIt appears that the policy was issued by the ploy of the company; but that these words defendant to the plaintiff as a prize for his properly construed, signify that the policy work as superintendent of the defendant's shall become void if the plaintiff should by branch office at Brockton in this common his own act abandon his employment in the wealth. It is agreed that, aside from the service of the defendant. The word “leave," clause in the policy above quoted:
as used by the parties, means to leave vol. "All things had been done and performed by untarily, and does not apply if the plaintiff the plaintiff necessary to entitle him to recover is arbitrarily and without justifiable cause in this action."
discharged by the defendant. This'. interOn, and for some time before, September 7, pretation would seem to be in accord with the 1896, the plaintiff was in the service of the natural and ordinary meaning of the word defendant as superintendent of its branch construed in connection with the clause office in Salem. On that day a letter was where it appears. It was said by this court delivered to him dated September 3, 1896, in Price v. Minot, 107 Mass. 49 (a case which and signed by one Thomas, superintendent of presented a question very similar to that is agencies of the defendant, who, it is admit-I the case at bar), that:
ProFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes