income does not affect the public character of the baths so as to render the city liable for the torts of its officers in connection therewith. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1575, 1576; Dec. Dig. 747(4).] R. A. 160, 25 Am. St. Rep. 651), the maintenance of a city hall solely for public uses (Kelley v. Boston, 186 Mass. 165, 71 N. E. 299, 66 L. R. A. 429), of shade trees (Donohue v. Newburyport, 211 Mass. 561, 98 N. E. 1081, Ann. Cas. 1913B, 742), of a house of industry Appeal from Superior Court, Essex Coun- (Curran v. Boston, 151 Mass. 505, 24 N. E. ty; W. F. Dans, Judge. Separate actions by Mary A. Bolster, Alvina Balletta, and Margaret Jones, as administratrices, and John J. McCann, Peter Pinto, and Michael Thornton, as administrators, against the City of Lawrence. Judgments for defendant on demurrer to the declarations, and plaintiffs appeal. Affirmed. W. S. Peters, H. J. Cole, F. H. Magison, and W. F. Barrett, all of Haverhill, for ap pellants. D. J. Murphy, of Lawrence, for appellee. RUGG, C. J. The allegations in the several counts of the plaintiff's declaration, so far as now material, are in substance that the defendant city maintained and operated a bathhouse established by it on the shore of the Merrimac river, whereby the plaintiff's intestate, who had resorted to the bathhouse for the enjoyment of the facilities there afforded, while in the exercise of due care, was mortally injured by the giving way of the structure and its approaches, resulting from the negligence of the defendant and its servants. The bathhouse was maintained under R. L. c. 25, §§ 20, 21. Thereby the defendant was authorized to purchase or lease land and erect or repair a building "for public baths" and to "make open bathing places" and to "provide instruction in swimming" and also to "establish rates for the use of such baths." There is no averment that the defendant made any charge for the use of the bathhouse. The argument before us proceeded upon the assumption that no charge was made, and that the bathhouse was established and maintained for the free use of the public. The case must be considered on that footing. [1] The general principles of law by which claims for liability in tort against cities and towns must be determined are well established. The municipality, in the absence of special statute imposing liability, is not liable, for the tortious acts of its officers and servants in connection with the gratuitous performance of strictly public functions, imposed by mandate of the Legislature or undertaken voluntarily by its permission, from which is derived no special corporate advantage, no pecuniary profit, and no enforced contribution from individuals particularly benefited by way of compensation for use or assessment for betterments. A city or town is not liable, therefore, for negligent or tortious acts in the conduct of schools (Hill v. Boston, 122 Mass. 344, 23 Am. Rep. 332), the construction of schoolhouses (Howard v. Worcester, 153 Mass. 426, 27 N. E. 11, 12 L. 781, 8 L. R. A. 243, 21 Am. St. Rep. 465), of a public park (Holleran v. Boston, 176 Mass. 75, 57 N. E. 220), in the printing of committee reports (Howland v. Maynard, 159 Mass. 434, 34 N. E. 515, 21 L. R. A. 500, 38 Am. St. Rep. 445). Nor is it answerable for the acts of police officers (Buttrick v. Lowell, 1 Allen, 172, 79 Am. Dec. 721), highway surveyors (Dupuis v. Fall River, 223 Mass. 73, 111 N. E. 706; Smith v. Gloucester, 201 Mass. 329, 87 N. E. 626), road commissioners (McManus v. Weston, 164 Mass. 263, 41 N. E. 301, 31 L. R. A. 174), members of the fire department (Hafford v. New Bedford, 16 Gray, 297; Pettingell v. Chelsea, 161 Mass. 368, 37 N. E. 380, 24 L. R. A. 426; Workman v. New York, 179 U. S. 552, 580, 21 Sup. Ct. 212, 45 L. Ed. 314), assessors (Rossire v. Boston, 4 Allen, 57; Hathaway v. Everett, 205 Mass. 246, 91 N. E. 296, 137 Am. St. Rep. 436), selectmen (Cushing v. Bedford, 125 Mass. 526; Pinkerton v. Randolph, 200 Mass. 24, 85 N. E. 892), boards of aldermen (Child v. Boston, 4 Allen 41, 51, 81 Am. Dec. 680), the city government (Griggs v. Foote, 4 Allen, 195), licensing boards (McGinnis v. Medway, 176 Mass. 67, 57 N. E. 210), tax collectors (Alger v. Easton, 119 Mass. 77), constable and deputy collector of taxes (Dunbar v. Boston, 112 Mass. 75), overseers of the poor (New Bedford v. Taunton, 9 Allen, 207), servants in the discharge of fire works (Tindley v. Salem, 137 Mass. 171, 50 Am. Rep. 289), those in charge of celebrations, playgrounds, and public amusements (Kerr v. Brookline, 208 Mass. 190, 94 N. E. 257, 34 L. R. A. [N. S.] 464; Higginson v. Treas. of Boston, 212 Mass. 583, 588, 99 N. E. 523, 42 L. R. A. [N. S.] 215), boards of health (Barry v. Smith, 191 Mass. 78, 88, 91, 77 N. E. 1099, 5 L. R. A. [N. S.] 1028, 6 Ann. Cas. 817), other health officers (Harrington v. Worcester, 186 Mass. 594, 598, 72 N. E. 326), collectors of refuse (Johnson v. Somerville, 195 Mass. 370, 81 N. E. 268, 10 L. R. A. [N. S.] 715), gatemen or drawtenders (148 Mass. 544, Hawes v. Milton, 213 Mass. 446, 100 N. E. 665), transit and subway commissioners (Mahoney v. Boston, 171 Mass. 427, 50 N. E. 939), and officers charged with enforcement of statutes as to the removal of wires and electric appliances from streets (Postal Telegraph Cable Co. v. Worcester, 202 Mass. 320, 88 N. E. 777). [2] On the other hand a municipality is answerable for the acts of its servants or agents in the conduct of functions voluntarily undertaken for its own profit and commercial in character, or to protect its corporate interests in its own way. Thus it is liable for the acts of agents specially selected and deputed to repair highways to the ex clusion of those public officers provided by the law, on the ground that it is protecting by quasi private instrumentalities its pecuniary interest growing out of statutory liability for defects in highways. Butman v. Newton, 179 Mass. 1, 60 N. E. 401, 88 Am. St. Rep. 349; Waldron v. Haverhill, 143 Mass. 582, 10 N. E. 481. It is liable on the same ground, for agencies used in lighting streets. Dickinson v. Boston, 188 Mass. 595, 75 N. E. 68, 1 L. R. A. (N. S.) 664; Sullivan v. Holyoke, 135 Mass. 273. So, also, it is liable for negligence in the management of its water department (Hand v. Brookline, 126 Mass. 324; Lynch v. Springfield, 174 Mass. 430, 54 N. E. 871; Johnson v. Worcester, 172 Mass. 122, 51 N. E. 519), in the operation of its sewer system (O'Brien v. Worcester, 172 Mass. 348, 52 N. E. 385; Allen v. Boston, 159 Mass. 324, 34 N. E. 519, 38 Am. St. Rep. 423), in running a ferry boat (Davies v. Boston, 190 Mass. 194, 76 N. E. 663), in the letting of a public hall for profit (Little v. Holyoke, 177 Mass. 114, 58 N. E. 170, 52 L. R. A. 417; Oliver v. Worcester, 102 Mass. 489, 499, 3 Am. Rep. 485), in managing a farm, partly for the support of its poor, partly for the maintenance of its highway department, and partly for the production of income (Neff v. Wellesley, 148 Mass. 487, 20 N. E. 111, 2 L. R. A. 500), in the operation of a stone crusher for profit (Duggan v. Peabody, 187 Mass. 349, 73 N. E. 206; Collins v. Greenfield, 172 Mass. 78, 51 N. E. 454), and in the maintenance of electric and gas lighting plants, for the use of which rates are charged (O'Donnell v. No. Attleborough, 212 Mass. 243, 98 N. E. 1084). [3] The difficulty lies not in the statement of the governing principles of law, but in their application to particular facts. The underlying test is whether the act is for the common good of all without the element of special corporate benefit or pecuniary profit. If it is, there is no liability, if it is not, there may be liability. That it may be undertaken voluntarily and not under compulsion of statute is not of consequence. Tindley v. Salem, 137 Mass. 171, 50 Am. Rep. 289. Op [4] The maintenance of free public baths upon the bank of a river is in its essence a public benefit. It is manifestly in the interests of the public health that the people have abundant facilities for cleanliness. portunity for swimming under sanitary conditions and under the protection and with the instruction of public officers tends toward the amusement of the people as well as their healthful and athletic exercise. It belongs to the same class of public service as municipal playgrounds and swimming pools for small children. It is a kind of social advantage which the commonwealth long has provided at Nantasket and Revere beaches on a considerable scale. It is in its intrinsic characteristics a project for the general good of all the public. The only doubtful aspect of the case arises powers the cities and towns, which vote to adopt its provisions, "to establish rates for the use of such baths," and thus possibly to derive a revenue or profit from the undertaking. But, as has been pointed out, there is no allegation that there has been any rate charged in the case at bar. The simple possibility that a charge might have been made is not enough to transform that which in its main features as actually conducted is a purely public duty rendered for the common good into a quasi commercial adventure. [5] In this respect the case is indistinguishable in principle from city hospitals maintained, not infrequently under special statute, for the performance of a duty assumed for the benefit of the public. Although such institutions may receive pay patients their public character is not lost thereby and no liability attaches to the municipality arising from negligence of those in charge. Benton v. Boston City Hospital, 140 Mass. 13, 1 N. E. 836, 54 Am. Rep. 436. The case at bar is somewhat similar to that where a city has been exonerated from responsibility for negligence in the care of its city hall, although housed in it rent free were the commercial, revenue yielding departments of water, sewer and ferries. Kelley v. Boston, 186 Màss. 165, 71 N. E. 299, 66 L. R. A. 429. It is not unlike the cases where a slight revenue is obtained from the labor performed at a public workhouse (Curran v. Boston, 151 Mass. 505, 24 N. E. 781, 8 L. R. A. 243, 21 Am. St. Rep. 465), a charge sufficient to cover the bare cost of removal of steam engine ashes is collected in connection with the gratuitous removal of all ashes from dwelling houses (Haley v. Boston, 191 Mass. 291, 77 N. E. 888, 5 L. R. A. [N. S.] 1005), or a rental is received for the use of the tunnel and subways in Boston (Mahoney v. Boston, 171 Mass. 427, 50 N. E. 939), in each of which it has been held that the comparatively insignificant element of income received did not affect the dominating public character of the enterprise, and did not render the city liable for the torts of public officers and servants in performing such public duty. A similar conclusion was reached, as to liability for negligence in the operation of a bath house maintained by public authority, in McGraw v. District of Columbia, 3 App. Cas. D. C. 405, 25 L. R. A. 691, although it does not appear directly in that case that there was authority to make any charge. It follows that for the acts set forth in the plaintiff's declaration the defendant is not liable on the broad ground recognized in most jurisdictions that in the establishment and maintenance of purely public instrumentalities devoted to the common good, as is a bathhouse under the circumstances here disclosed, it acted as an agency of government in the performance of duties assumed solely for the benefit of the public. See Donohue v. Newburyport, 211 Mass. 561, 565, 98 N. E. The demurrer to the plaintiff's declaration | to rule that the value of the insured buildwas sustained rightly and judgment in favor ings destroyed, and the damage by fire, were of the defendant is Affirmed. (225 Mass. 538) DAY v. BOSTON & M. R. R. (Supreme Judicial Court of Massachusetts. Middlesex. Jan. 8, 1917.) 1. EVIDENCE 113(13)-VALUE OF PROPERTY DESTROYED BY FIRE-INSURANCE AWARD. Under St. 1906, c. 463, pt. 2, § 247, making railroads liable for fires set by sparks and giving them the benefit of insurance held by the injured owner, an insurance arbitration award paid the property owner was not admissible in action against road to show value of property destroyed. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 279; Dec. Dig. 113(13).] 2. RAILROADS 483-FIRES-DAMAGES. Under St. 1906, c. 463, pt. 2, § 247, the railroad's liability to the owner is not limited to the amount of the insurance paid the owner. [Ed. Note. For other cases, see Railroads, Cent. Dig. 88 1737-1739; Dec. Dig. 483.] Exceptions from Superior Court, Middlesex County; Loranus E. Hitchcock, Judge. Action by Eva J. Day against the Boston & Maine Railroad. Judgment for plaintiff, and defendant brings exceptions. Exceptions overruled. Clarence A. Barnes and Raymond P. Dellinger, both of Boston, for plaintiff. Trull & Wier and J. M. O'Donoghue, all of Lowell, for defendant. CARROLL, J. This is an action under St. 1906, c. 463, pt. 2, § 247, which makes a railroad company liable for damage to property by fire from its locomotive engines and gives to the corporation the benefit of any insurance effected upon the property by the owner, less the cost of premium and expense of re covery. "The money received as insurance shall be deducted from the damages, if recovered before they are assessed; and if not so recovered, the policy of insurance shall be assigned to the corporation which is held liable in damages, and it may maintain an action thereon." determined by the award, and these facts were res judicata. The offer and the request of the defendant were refused. The jury found the damages to the plaintiff's property was $2,600; that the amount of insurance received by the plaintiff, less premiums paid and expenses, was $1,507.50. They returned a verdict for the plaintiff for $1,092.50. The judge was right in denying the defendant's offer of proof and in refusing its requests for rulings. [1] The plaintiff's rights against the insurance company were under the contract of insurance. Her rights against the defendant were by force of the statute. In the proceedings before the arbitrators to recover the loss under the policy, the defendant was not a party and it was not bound by their decision. While the award is conclusive against the plaintiff and the insurer and their privies, it could not be used in the action against the railroad company by either the plaintiff or defendant, for the purpose of establishing the value of the premises destroyed. Its sole use was, under the statute, for the purpose of showing the amount of the insurance awarded the plaintiff. See Edwards v. Stevens, 1 Allen, 315; Todd v. Old Colony & Fall River R. R., 3 Allen, 18, 80 Am. Dec. 49; Prentiss v. Wood, 132 Mass. 486; Multnomah County v. Willamette Towing Co., 49 Or. 204, 89 Pac. 389. [2] Under the St. 1906, c. 463, pt. 2, § 247, the railroad is, in effect an insurer against fire from its locomotives and must fully indemnify the owner for the value of the property destroyed. Wall v. Platt, 169 Mass. 398, 48 N. E. 270; Hammond v. N. Y., N. H. & H. R. R., 211 Mass. 549, 98 N. E. 582. And although the damages are to be reduced by the insurance received, the damages sustained are not determined by the amount of insurance, nor the sum received by the insured. In fact, the statute expressly provides if insurance is received, it is to be deducted from the damages, thus giving the railroad com The buildings of the plaintiff were destroy-pany the benefit of any insurance, so far as ed by fire from one of the defendant's loco motives. All of these buildings, with the exception of a tool house, were insured against fire in the sum of $1,900. The plaintiff and the insurer could not agree on the amount of the loss sustained, and under the terms of the policy the question was submitted to arbitrators, who found the amount of loss to be $1.830, which sum was paid to the plaintiff. At the trial the award of the arbitrators was in evidence, the court limiting its use to showing the amount of insurance secured by the plaintiff, the defendant offering the award as evidence of the value of the buildings destroyed. The defendant also asked the judge is adequate, to compensate for the loss. Lyons v. B. & L. R. R., 181 Mass. 551, 64 N. E. 404. The plaintiff, therefore, could not be prevented from recovering her actual damages, deducting therefrom the amount of insurance received, and the judge was right in refusing the defendant's requests. The railroad company was not a party to the award nor privy to the parties; and the amount of the plaintiff's damages and the value of the property destroyed were not res judicata by reason of the award of the arbitrators. McCarthy v. Wood Lumber Co., 219 Mass. 566, 107 N. E. 439. Exceptions overruled. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (225 Mass. 574) AKESON v. DOIDGE. cusation. There was evidence to show the constancy of her accusation: her own state (Supreme Judicial Court of Massachusetts. ment that she continued to accuse the defend Middlesex. Jan. 10, 1917.) 1. BASTARDS 58 PROCEEDINGS EVI DENCE. Under Rev. Laws, c. 82, § 16, expressly providing that the accusation of the mother in the time of travail may be permitted in evidence to corroborate her testimony, if she accuses the same man of being the father of her child at the examination under section 1, and in her travail, provided she continues constant in such accusation, the statement of prosecutrix herself that she continued to accuse defendant during her travail, as well as the evidence of those who heard her, was admissible in a bastardy proceeding; there being evidence to show the constancy of her accusation. [Ed. Note.-For other cases, see Bastards, Cent. Dig. 88 157-160; Dec. Dig. 58.] 2. BASTARDS 58 PROCEEDINGS EVIDENCE. In bastardy proceeding, testimony by prosecutrix that in the presence of her mother and another, the defendant not being present and before making her complaint provided for in Rev. Laws, c. 82, § 1, she charged defendant with paternity of her unborn child, was inadmissible, being mere hearsay, and not within the terms of section 16, as to admissibility of accusations by prosecutrix after making accusation before magistrate, etc. ant during her travail, as well as the evidence of those who heard her, was clearly admissible. Murphy v. Spence, 9 Gray, 399; Reed v. Haskins, 116 Mass. 198; Scott v. Donovan, 153 Mass. 378, 26 N. E. 871. The complainant was permitted to testify, subject to the defendant's exception, that in November, 1911, in the presence of Dr. Morse and her mother (the defendant not being present), when she found she was pregnant, she charged him (the defendant) with being the father of her unborn child. This evidence was not admissible. It did not come within the terms of the statute, nor was it admissible at common law. Burns v. Donoghue, 185 Mass. 71, 69 N. E. 1060, does not support the contention of the complainant on this point. In that case the complainant was asked if, from the first, she accused the defendant of being the father of her child; and she answered in the affirmative. Her mother was asked if she had ever heard her daughter accuse any other person of being the father of the child; and she said she had not. This evidence was admitted as tending to show constancy by the complainant, and the words "from the first" were held to refer to the accusation before the magistrate, under R. L. c. 82, § 1. "Such accusation," in R. L. c. 82, § 16, refers to the accusation before Defendant was the magistrate, and if constant in accusing Exceptions sus- the same man after this time the statute makes her accusation in time of travail evidence to corroborate her testimony. In the case at bar the evidence objected to was a self-serving declaration made in the absence of the defendant, it was made on November [Ed. Note.-For other cases, see Bastards, Cent. Dig. §§ 157-160; Dec. Dig. 58.] Exceptions from Superior Court, Middle sex County; John F. Brown, Judge. Bastardy proceeding by Alice H. Akeson against John J. Doidge. found guilty, and excepts. tained. W. Adams and D. C. Ahern, both of South Framingham, for complainant. J. W. & T. F. McAnarney, of Boston, for defendant. CARROLL, J. The complainant accused the defendant of being the father of her child born March 22, 1912. The complaint in the First district court of Southern Middlesex was made on December 18, 1911, and in October, 1915, in the superior court, the defendant was found guilty. The complainant was a witness and testified that the defendant was the father of 20, 1911, prior to her examination of December 18, 1911, before the magistrate, and not in the time of her travail. For the reason that this evidence of her statements on November 20, 1911, was erroneously admitted, the exceptions must be sustained. So ordered. ING CO. (226 Mass. 58) (Supreme Judicial Court of Massachusetts. Suffolk. Jan. 8, 1917.) her child. Subject to the defendant's excep- REGAN v. JOHN L. KELLY CONTRACTtion, she stated that on the 22d of March, 1912, in the time of her travail, after her labor pains began and before the birth of the child, she accused the defendant of being the father. The doctor, her mother and Miss Allen, who were present, corroborated her, the defendant excepting to their evi dence. 705(2) 1. MUNICIPAL CORPORATIONS [1, 2] The statute, R. L. c. 82, § 16, ex-sults, he is negligent. pressly provides that the accusation of the [Ed. Note.-For other cases, see Municipal mother in the time of travail may be per- Corporations, Cent. Dig. § 1515; Dec. Dig. mitted in evidence to corroborate her tes-705(2).] timony, if she accuses the same man of be- 2. MUNICIPAL CORPORATIONS ing the father of her child at the examination under R. L. c. 82, § 1, and in her travail, ing a street from an alleyway gave no signal provided she continues constant in such ac-after leaving the alley and continued at the STREETS-RIGHT OF WAY-USE. 705(2) If a driver of an automobile truck in cross same rate of speed without attempting to avoid 3. MASTER AND SERVANT 302(2)—SCOPE OF Where on the day of an accident a truck driver was directed by the superintendent to dump a load in a lot back of some houses on an alleyway, and on returning from such errand and on his way to the garage he struck a street car, there was sufficient evidence that he was acting within the scope of his employment. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 1218, 1219; Dec. Dig. 302(2).] the truck, going in the same direction as the car, suddenly turned in front of it, and without warning attempted to cross the tracks, the jury could have found him to have been negligent. Or, if crossing Washington street from the alleyway, he gave no signal after leaving it, continued at the same rate of speed, and made no attempt to avoid the car, it could also have been found that he was careless. [3] The work of asphalting Union Park street from Harrison avenue to Washington street was going on, and the truck was used in carting material to this place from a crusher on Columbia road. On the day of Exceptions from Superior Court, Suffolk the accident, the driver was directed by the County; George A. Sanderson, Judge. superintendent to dump the last load that Action by Agnes Regan against the John day in a vacant lot back of some houses on L. Kelly Contracting Company. On defend this alleyway. He was returning from there ant's exceptions to an order overruling mo- and was on his way to the garage when the tion for a directed verdict in its favor. Ex- collision took place. This was sufficient eviceptions overruled. dence that the driver was acting within the 224 Mass. 319, 112 N. E. 1007. scope of his employment. Robinson v. Doe, Francis J. Harrigan, John J. O'Hare, and Chas. Toye, all of Boston, for plaintiff. Albin L. Richards, of Boston, for defendant. CARROLL, J. The plaintiff, while a passenger riding on the front seat of an open street car, was injured when the car collided with a motor truck belonging to the defendant. The jury found for the plaintiff. The defendant claimed there was no evidence that it was negligent nor that the driver of the truck was acting within the scope of his employment, and moved that a verdict be directed in its favor. The motion was overruled and the defendant excepted. [1, 2] About 5 o'clock in the afternoon of June 12, 1913, on Washington street near Union Park street, the plaintiff was injured, on a North Station car which she had taken at Upham's corner. She testified that, when she first saw the truck, it was on her right, "just outside of those irons that hold the L road up," "coming the same way the car did," "just going to cross the street." "I am not sure but it came right in front of the car." "The front part of the truck was right outside of that (the supporting irons) and it was in that position when I saw it making for the track." On this evidence the jury could find that the driver of the truck, moving in the same direction as the car, turned at this point and crossed the track. This evidence was contradicted in part by the driver of the truck who testified that he came from an alleyway leading from Washington street, went directly across the street and did not move alongside of the car in the same direction. He blew his horn as he approached the street, but gave no further signal; and although there was nothing to obstruct the view, he saw the car for the first time when his wheels were upon the track, and he then made no effort to change the rate of speed at which he was moving. If the driver of Exceptions overruled. (225 Mass. 432) CHESHIRE NAT. BANK v. JAYNES et al. (Supreme Judicial Court of Massachusetts. Suffolk. Jan. 4, 1917.) 1. GARNISHMENT 61-EXECUTORS AND ADMINISTRATORS-CHARACTER OF POSSESSION. As executors and administrators derive their authority over property from the law, their possession is the possession of the law. [Ed. Note.-For other cases, see Garnishment, Cent. Dig. § 119; Dec. Dig. 61.] 2. GARNISHMENT 36-INTEREST OF LEGATEE -LIABILITY TO TRUSTEE PROCESS-STATUTE. legacies, goods, effects, or credits due from or Cent. Dig. 88 63-65; Dec. Dig. 36.] 3. GARNISHMENT 175-TRUSTEE PROCESS Where defendant's father left him $50,000 in cash or securities, as he might elect, to be tiff's debt, and plaintiff served trustee process paid within a year, which was more than plainon the father's executors under Rev. Laws, c. 189, § 20, the superior court properly charged Laws, c. 189, § 39, it is ordinarily unnecessary the trustees with a sum certain, though, by Rev. to specify in the judgment the amount for which For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |