cussion of the evidence. It has all been carefully considered, and we are of opinion that the questions whether Kilburn, the driver of the truck, was a licensee or an invitee while entering upon the defendant's track, and whether the defendant was negligent, were clearly for the jury. The special finding that he was an invitee was justified by the evidence. against the insurer unless brought for a loss actually sustained and paid in money by the assured in satisfaction of a judgment after trial of the issue, nor unless such action is brought within 90 days after judgment by a court of last resort against the assured had been so paid and satisfied. [Ed. Note.-For other cases, see Insurance, Cent. Dig. § 1144; Dec. Dig. § 435.*] 2. INSURANCE (§ 435*)-CASUALTY POLICYJUDGMENT AGAINST ASSURED-TRIAL OF IS SUE. Claim having been made against plaintiff for damages for an injury covered by a policy held by plaintiff in defendant company, plaintiff gave notice thereof to defendant, and defendant's attorney filed an answer and assumed charge of the litigation, but later deliberately withdrew, claiming nonliability because of an alleged failure on plaintiff's part to give the required notice. Judgment was thereupon rendersubsequently paid. Held, that the notice having been properly given, plaintiff was entitled to hold defendant to its election, and defendant, having withdrawn from the case for an unsustainable reason, could not successfully defend an action on the policy on the ground that the judgment was not rendered after a trial of issues, within a provision of the policy that the insurer should be liable only for a loss actually sustained and paid in money by the assured in satisfaction of a judgment after trial of issue joined, etc. The question whether Kilburn was in the exercise of due care is close, but upon the evidence the jury properly may have found that as he drove out of the yard into South street he looked up the street to see if there was any approaching train; that even if he saw the cars standing upon the track several hundred feet away there was no engine in sight, and that to a person in his situationed against plaintiff by default, which plaintiff the cars would appear to be freight cars standing for the time being upon the track and apparently not soon to be moved; that he was justified in thinking that he could back across the track and deliver at the shipping room the few articles remaining on his truck before the cars would be started by an engine or in any other way; that by reason of the noise made by the wind and the action of the truck his attention was not attracted by the noise of the cars after they started and by the shouting of the brakeman; and that in view of all these circumstances taken in connection with the other evidence he was in the exercise of due care even if he relied upon himself alone. There was also evidence upon which the jury might have found that he and Payette were engaged in the same work; that to a certain extent he relied on the latter for assistance as to whether there was danger in backing upon the crossing, and that under all the circumstances Payette acted with due care. In a word the evidence justified a finding that whether Kilburn relied upon himself alone or to any extent upon Payette due care was exercised for his protection. We see no error in the manner in which the presiding justice dealt with the rulings requested. In each case the order is Exceptions overruled. (218 Mass. 463) TIGHE et al. v. MARYLAND CASUAL- (Supreme Judicial Court of Massachusetts. [Ed. Note. For other cases, see Insurance, Cent. Dig. § 1144; Dec. Dig. 435.*] Exceptions from Superior Court, Suffolk County; W. P. Hall, Judge. Action by Thomas F. Tighe and others against the Maryland Casualty Company. Judgment for plaintiffs, and defendant brings exceptions. Overruled. See, also, 216 Mass. 459, 103 N. E. 941. BRALEY, J. By the terms of the policy the plaintiffs as the assured were bound under condition C to give immediately written notice of the accident, either to the home office of the company or to its authorized agent, "with the fullest information available at the time." Rooney v. Maryland Casualty Co., 184 Mass. 26, 67 N. E. 882. It was urgently insisted at the trial, that the plaintiffs had failed to comply with this requirement. But whether seasonable notice, with all available particulars, had been given was a question of fact on the evidence, which was properly submitted to the jury. Greenough v. Phoenix Ins. Co., 206 Mass. 247, 249, 92 N. E. 447, 138 Am. St. Rep. 383. The verdict having disA suit having been brought against plain-posed of that ground of defense, the defendtiff, who was insured in defendant casualty ant relies on the failure of the plaintiffs to company, plaintiff gave due notice, and defendant's attorney filed an answer and later withdrew, claiming that plaintiff had failed to give due notice of the accident, and hence defendant was not liable. Plaintiff thereupon suffered judgment by default in the superior court, which was paid. Held, that such judgment was a "judgment by a court of last resort" within a provision of the policy that no action should lie 1. INSURANCE (§ 435*)-CASUALTY INSURANCE -ACTION AGAINST ASSURED JUDGMENT"COURT OF LAST RESORT." comply with the terms of condition F in bar of their right of recovery. Lamson Consolidated Store Service Co. v. Prudential Fire Ins. Co., 171 Mass. 433, 435, 50 N. E. 943. This clause provides, that: "No action shall lie against the company to recover for any loss under this policy unless it •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes shall be brought by the assured for loss actually | R. L., c. 157, § 3. It had full authority to sustained and paid in money by the assured in order and to enter judgment for damages, assatisfaction of a judgment after trial of the is-sessed either upon default or after trial of sue; nor unless such action is brought within ninety (90) days after such judgment by a court of last resort against the assured has been so paid and satisfied. The company does not prejudice by this action any defenses to such action it may be entitled to make under this policy." [1, 2] But under condition D it was obliged at its own cost to defend the action in the name and behalf of the plaintiffs unless the company elected to settle, or to pay the assured the full amount of the indemnity stipulated. This condition was inserted for its own benefit. It does not contend that as required by condition D the notice received from counsel for the person injured, and the summons served upon them in the action of tort which followed, were not promptly transmitted by the plaintiffs to its duly authorized attorney, who entered an appearance and filed an answer. The plaintiffs having complied with all precedent conditions, and the defendant not having exercised the option of paying the indemnity, leaving them to make such defense or settlement as they might be advised, it absolutely controlled the suit, and the situation. It either could defend or compromise as it might determine. Nesson v. United States Casualty Co., 201 Mass. 71, 73, 87 N. E. 191, 131 Am. St. Rep. 390. It is true the defendant's "attorney in charge" states in a letter to the plaintiffs, that the entry of an appearance and filing of an answer were for the purpose of avoiding a default, with a reservation of all the company's rights under the policy, and "that if it shall appear that we have been prejudiced by your failure to duly notify us of the accident, we desire to retain the right to withdraw our defense of said action." It is likewise true that subsequently the "writ" with a copy of the declaration and answer were returned to the plaintiffs with a statement by the defendant's counsel, that having been prejudiced by the failure of the plaintiffs to give notice the company declined to defend the case, or to "assume your liability." But the jury has settled this assumption adversely to the defendant, and the condition in question is to be read and applied accordingly. Young v. Hayes, 212 Mass. 525, 533, 99 N. E. 327. The record recites, that after the defendant's counsel had withdrawn, the plaintiffs, who did not contest the question of liability, were defaulted, and damages having been assessed by a jury they have satisfied the execution which issued on the judgment. The defendant's first contention, that the judgment was not rendered by a court of last resort, cannot be sustained. The superior court had original and exclusive jurisdiction of the action. the issues. R. L., c. 173, § 109; chapter 177, §§ 1, 4. Dalton, Ingersoll Co. v. Fiske, 175 Mass. 15, 55 N. E. 468; Bailey v. Edmundson, 168 Mass. 297, 46 N. E. 1064. And the limitation, that if the assured satisfies the judgment he must sue on the policy within 90 days "after such judgment by a court of last resort" has been so paid, necessarily refers to the judgment terminating the litigation entered by a court having jurisdiction of the cause and the parties. The second contention is, that the loss was not sustained and paid in satisfaction of a judgment obtained after a trial of the issue of the plaintiffs' liability. The defendant's withdrawal, however, was conditional. It rested upon the plaintiffs' failure to give the notice. But as the notice had been duly given and received, it had assumed the defense. The plaintiffs, therefore, who were not in default had the right to treat what the company had done as an election to undertake the defense in accordance with its express promise found in condition D. O'Connell v. N. Y., N. H. & H. R. R., 187 Mass. 272, 278, 72 N. E. 979. If it had performed that which it engaged and undertook to perform, the plaintiffs would have received the full benefit and protection of the indemnity bargained for, and for which they paid the "estimated premium." It cannot repudiate the contract in part and rely upon it in part, or insist upon a condition precedent the nonperformance of which has been caused by itself. Brown v. Henry, 172 Mass. 559, 567, 568, 52 N. E. 1073; Young v. Hunter, 6 N. Y. 203, 207. The defendant's primary position in avoidance of liability was taken deliberately under the advice of counsel, and it should not be permitted to set up its own mistaken and unjustifiable conduct as having worked a forfeiture of the policy. Lowe v. Harwood, 139 Mass. 133, 29 N. E. 538; Beharrell v. Quimby, 162 Mass. 571, 574, 575, 39 N. E. 407; Whitten v. New England Live Stock Ins. Co., 165 Mass. 343, 43 N. E. 121; Barrie v. Quinby, 206 Mass. 259, 268, 92 N. E. 451; Knickerbocker Life Ins. Co. v. Norton, 96 U. S. 234, 24 L. Ed. 689. It follows from the views expressed, which have the sanction of a majority of the court, that the presiding judge rightly denied the first request, that the plaintiffs could not recover, and the exceptions to the refusal to rule that they were not entitled to interest, but were limited to the amount specified in condition A for loss from an accident resulting in bodily injuries to one person, not having been argued are to be treated as waived. Exceptions overruled. (218 Mass. 533) In re WABAN ROSE CONSERVATORIES. (Supreme Judicial Court of Massachusetts. Suffolk. Sept. 11, 1914.) 1. RECORDS (§ 9*)—REGISTRATION OF TITLE TO LAND-PARTIES ENTITLED TO APPEAL. Where a grantee of land orally agreed to reconvey upon payment of a debt due from the grantor, but thereafter gave a mortgage on the land, which was foreclosed, a party given a legacy of money by the will of the grantor had no interest in the land, and was not aggrieved by a decree registering the title of the purchaser at the foreclosure sale, and could not appeal therefrom, under Rev. Laws, c. 128, § 13, as amended by St. 1910, c. 560, § 1, authorizing appeals by any party aggrieved upon affidavit that he did not receive notice of the proceedings. [Ed. Note.-For other cases, see Records, Dec. Dig. § 9.*] 2. EXECUTORS AND ADMINISTRATORS (§ 43*) NATURE OF LEGATEE'S INTEREST. One who is given a legacy of money by a will acquires no title, legal or equitable, to any portion of the estate, real or personal, of the testator, and has merely a right enforceable in the probate court to have the estate properly wound up and his legacy paid. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 279, 281; Dec. Dig. § 43.*] Exceptions from Land Court, Suffolk County; L. M. Clark, Judge. Petition by the Waban Rose Conservatories for the registration of title to land. There was a decree for petitioner, and the court thereafter ruled, among other rulings, that Walter Scott Hall, not a party to the petition, was not entitled to appeal, and he brings exceptions. Exceptions overruled. Chas. H. Dow and Starr Keyes, both of Boston, for claimant. R. G. Dodge, of Boston, and F. W. Johnson, of Claremont, N. H., for petitioner. LORING, J. [1] On December 4, 1913, a decree was entered by the land court, registering the petitioner's title to a parcel of land in Marshfield. On December 31, 1913, one Walter Scott Hall, not a party to the petition, filed a claim for an appeal under R. L. c. 128, § 13 (amended by St. 1910, c. 560, § 1), supported by an affidavit that he had not received notice of the proceedings before the decree was entered. The judge of the land court ruled inter alia that Hall was not an "aggrieved party," and the case is here on an exception taken to that among other rulings. The petitioner's title came through a foreclosure of a mortgage made by one MacMulkin. MacMulkin took title from one George W. Emery. Emery died in July, 1909, leaving a will by which he bequeathed $10,000 in trust to Hall subject to a life estate to his mother. This gift in the will was followed by this clause: "As, however, I now owe said Mary A. Hall certain sums for borrowed money and for board and care; if prior to my decease I shall have paid said Mary A. Hall her said indebtedness then and in that event this bequest shall be null and void and of no effect." The mother predeceased the testator, and her executors recovered judgment amounting to $11,151.86 from the estate of Emery for the sums due her from Emery. under his claim of a late appeal is based on the following, which he alleges to be facts: That when the land in question was conveyed by Emery to MacMulkin, he (MacMulkin) made an oral agreement of defeasance by which he agreed to reconvey the land to Emery on payment of a debt then due from Emery to him (MacMulkin); that the petitioner took with notice of the oral agreement of defeasance; that there is now a right to redeem under the oral agreement of defeasance, and that by such redemption money could be obtained from Emery's estate; and that from that money the legacy to the appellant could be paid. The claim which Hall wishes to pursue [2] We have not undertaken to state all the facts which show that Hall has not stated a case. It is enough to dispose of Hall's right to claim a late appeal from the decree registering the petitioner's title to this land that Hall has no interest in the land. He is a legatee under Emery's will and nothing more. One who is given a legacy of money by a will does not thereby acquire any title legal or equitable to any portion of the estate real or personal of the testator. Pritchard v. Norwood, 155 Mass. 539, 30 N. E. 80: Flynn v. Flynn, 183 Mass. 365, 366, 67 N. E. 314. Hall's right in Emery's estate (if he has any now) is the right to have the esfate properly wound up and his legacy paid, and that right must be pursued in the probate court. Norton v. Lilley, 210 Mass. 214, 217, 96 N. E. 351. Exceptions overruled. (218 Mass. 498) COMMONWEALTH v. FOX. (Supreme Judicial Court of Massachusetts. Suffolk. Sept. 10, 1914.) 1. CONSTITUTIONAL LAW (§ 63*)-HAWKERS AND PEDDLERS (§ 2*)-REGULATION-STATUTES-VALIDITY. St. 1907, c. 584, § 9, providing that the police commissioner of Boston may designate from time to time certain streets or parts of streets, or sections of the city, wherein it shall be lawful on particular days, and within the hours specified and under such general rules as he may make, for any hawker or peddler to stand to sell merchandise, etc., was a proper exercise of the Legislature's power to regulate the business, and to delegate to a local board or officer the power to establish rules touching the conduct of a business by which the public interests in definite districts might be affected. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 108-114; Dec. Dig. § 63;* Hawkers and Peddlers, Cent. Dig. § 2; Dec. Dig. § 2.*] For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 106 N.E.-9% St. 1907, c. 584 § 9, authorizing the police commissioner of Boston to prescribe rules and regulations for the control of hawkers and peddlers in that city, is penal, and hence must be strictly construed, but must nevertheless be given a reasonable interpretation so as to carry out the intention of the Legislature. [Ed. Note.-For other cases, see Hawkers and Peddlers, Cent. Dig. § 2; Dec. Dig. § 2.*] 3. HAWKERS AND PEDDLERS (§ 2*)—REGULA TION. 2. HAWKERS AND PEDDLERS (§ 2*)-REGULA- | in he divided the city into three parts desigTION-STATUTES-CONSTRUCTION. nated respectively as a "business section" and a "restricted territory" (each of which was described with definiteness) and "all parts of the city excepting the 'business section' and the 'restricted territory.'" Hours were prescribed during which the business of hawking and peddling was prohibited in the "business section" and allowed in a limited way in the "restricted territory," while in the rest of the city it was permitted "at reasonSt. 1907, c. 584, § 9, authorizes the police able hours subject to conditions herein precommissioner of Boston to designate certain streets or parts of streets, or sections of the scribed." A subsequent paragraph providcity, wherein it shall be lawful only on the days ed that with certain exceptions not mateand within the hours specified by him, and unrial to this complaint "no hawker or pedder such general rules as he shall make, for any dler hawker or peddler to stop to sell merchandise, shall in a public street and etc. In accordance with this provision, the while offering merchandise for sale remain commissioner divided the city into three parts, in one place or within two hundred yards designated a "business section," a "restricted territory," and "all parts of the city excepting thereof for more than five minutes unless acthe business section and the restricted terri- tually engaged in selling to a purchaser. tory" Hours were prescribed during which "It is for violation of this regulahawking and peddling was prohibited in the tion that the defendant is prosecuted. "business section" and allowed in a limited manner in the "restricted territory," while in the rest of the city it was permitted at reasonable hours, subject to prescribed conditions. A subsequent rule declared that no hawker or peddler should remain in one place, or within 200 yards thereof, for more than five minutes unless actually engaged in selling to a purchaser. Held, that such regulations were a proper exercise of the power of the police commissioner as conferred by statute. [Ed. Note.-For other cases, see Hawkers and Peddlers, Cent. Dig. § 2; Dec. Dig. § 2.*] Exceptions from Superior Court, Suffolk County; Frederick H. Chase, Judge. Action by the Commonwealth against Jacob Fox, for violating police regulations of the city of Boston touching hawking and peddling in the public streets of the city. From a judgment in favor of complainant, defendant brings exceptions. Overruled. A. C. Webber, Asst. Dist. Atty., of Boston, for the Commonwealth. J. F. Lynch, of Boston, for defendant. RUGG, C. J. This is a complaint for the violation of regulations made by the police commissioner of Boston touching hawking and peddling on public streets in that city. The regulation in question was made under the authority of St. 1907, c. 584, § 9.1 The only question raised by the defendant is whether the regulation is valid. The police commissioner issued rules where"Section 9. The police commissioner of the city of Boston may designate from time to time certain streets, or parts of streets, or sections of the city wherein, and not elsewhere in the city, it shall be lawful on the days and within the hours specified by him, and under such general rules as he shall make, for any hawker or peddler, without the license provided for in this act, to stop or stand for the purpose of selling merchandise: provided, that such hawkers or peddlers carry on their business in conformity with the laws of the commonwealth, the ordinances of the city, and the regulations of the board of aldermen and of the board of health of the city of Boston, now or hereafter enacted and not inconsistent herewith.", * [1] There can be no doubt of the constitutionality of the section of the statute under which the regulations were made. The Legislature may delegate to a local board or officer the power to establish rules of this nature touching the conduct of a business by which the public interests in defined districts may be affected. Commonwealth v. Plaisted, 148 Mass. 375, 19 N. E. 224, 2 L. R. A. 142, 12 Am. St. Rep. 566; Brodbine v. Revere, 182 Mass. 598, 66 N. E. 607; Commonwealth v. Maletsky, 203 Mass. 241, 89 N. E. 245, and cases there collected. Usually in this commonwealth a town or a board composed of two or more persons has been the repository of the power to establish local ordinances and by-laws. But there is no reason in principle why a single officer may not be authorized to exercise it. United States v. Grimaud, 220 U. S. 506, 31 Sup. Ct. 480, 55 L. Ed. 563. [2, 3] This is a penal statute and hence is to be construed with strictness. Yet it is to be given a reasonable interpretation so as to carry out, if possible, the purpose of the Legislature in enacting it. The regulation of hawking and peddling has been a subject for legislation for many years. Commonwealth v. Ellis, 158 Mass. 555, 33 N. E. 651. The au thority conferred by this statute is to designate parts of the city where hawking and peddling may be carried on and to prescribe general rules for the conduct of the business. It is not conditioned for its exercise upon an absolute and entire prohibition of the business in other parts of the city. The prohibition during the ordinary hours of heavy street traffic in the "business section" and the limitations upon its conduct during the same hours in the "restricted territory" is within the scope of the statute. The defendant's contention that the words "and not elsewhere in the city" demand an unqualified and utter prohibition of the business in some sections is not tenable. It would narrow un duly the scope of the statute. The prohibi- [ HAMMOND, J. This is an action of tort to recover for personal injuries sustained by the plaintiff by reason of an accident which occurred on November 14, 1901, while he was working on a coal run owned and operated by the defendants. The run was an elevated trestle structure, elliptical in shape and over 3,000 feet in its entire circuit. Upon its top was a "two foot gauge track" over which were run small coal cars weighing when loaded about 1,500 pounds each, propelled by means of an endless cable which when in motion ran "north on the east track and south on the west." The cars were run over the scales at the scale house, so called, which was on the east side of the run; and each car was stopped upon the scales for the purpose of being weighed. At the scale house and at various other places around the circuit there were push buttons, by means of which employés could signal the engineer to start or stop the engine, and thus start or stop the cars. The cars also could be controlled independently of the cable by loosening the grip and applying the brake. In this way any or all of the cars could be stopped while the cable was in motion. Between the scales and the engine house and over the east track were three towers, beside and extending above the trestle work structure, each tower having a hopper and machinery for raised and swung over the cars, which were hoisting coal from a vessel, the hopper being Plaintiff, an experienced employé, whose stopped on the track by means of loosening duty it was to stop and start certain coal cars the grip long enough to receive the coal; the as they passed over scales, notified defendant's engineer to reduce the speed of the cable by grip then being tightened the car went forwhich the cars were propelled, after which de- ward. These towers were movable, and on fendant's foreman ordered that the engine be the night of the accident the one nearest the "run at full speed," whereupon the engine was scales was about 40 feet distant from them. run at substantially the same speed as before plaintiff talked to the engineer, and in a short Upon the rear end of each car was a platform time plaintiff, while performing his duty, was through which extended the grip mechanism caught between two cars and injured. Held, by which the cars were "made fast to or that the superintendent's order merely meant loose of the endless cable." Each car was that the engine should be run at its usual furnished with a brake. The cars could be speed, which did not prevent plaintiff or any other employé from signaling the engineer to stopped under the towers for loading or on stop the cable in case of danger, and hence the scales for being weighed or for any other such order was not negligence on which to pred-purpose by loosening the grip and putting on (218 Mass. 458) MARTIN v. CURRAN et al. Master and SeRVANT (§ 137*)—INJURIES TO icate a recovery. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 269, 270, 273, 274, 277, 278; Dec. Dig. § 137.*] Report from Superior Court, Suffolk County; John C. Crosby, Judge. Action by Henry Martin against Arthur D. Curran and others. In the superior court at the close of plaintiff's evidence the court ordered a verdict for defendant and reported the case to the Supreme Court on stipulation that if the court's order was correct a judgment should be entered for defendants on the verdict, otherwise judgment should be entered for plaintiff for $4,000. Judgment on verdict. Jas. H. Baldwin and Francis P. Garland, both of Boston, for plaintiff. Sprout & Kendall, of Boston, for defendants. When one the brake, which generally was done by a cars. •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |