Action by Maurice Cohen against Isadore Master and servant 405 (4)-Compensation

Wintman, with trustee process. Verdict for plaintiff, and defendant excepts. Exceptions overruled.

Samuel L. Bailen and Frank both of Boston, for plaintiff.

Proceeding under the Workmen's Compen sation Act for compensation for death of

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(128 N.E.)

Charles McMahon, the employee, brought by Mrs. Anastasia McMahon, his mother and alleged dependent, and opposed by D. L. Page & Co., the employer, and the Liberty Mutual Insurance Company, the insurer. Compensation was awarded by the Industrial Accident Board, the award affirmed by the superior court, and claimant and the insurer appeal. Decree reversed, and decree ordered for the insurer.

John W. Cronin and Frederick A. Carroll,

both of Boston, for insurer.

Qua, Howard & Rogers and Stanley E. Qua, all of Lowell, for claimant.

found, according to the evidence, the elevator was at the top of the shaft and the doors on the second floor were closed. It also appeared that if the elevator "is not stopped right still, it will gradually work up or down, whichever way the power is."

If there is any evidence or if it can be rationally inferred that the employee fell into the elevator well while in the course of his employment either because the doors were open, or he accidentally fell against

them and pushed them open, then the finding

of the Industrial Accident Board must stand.

It was no part of the employee's work to operate the elevator. He had been instructed not to use or "go near it" and if there is CARROLL, J. Charles McMahon was no evidence to support the finding of the killed on the night of September 9, 1918, | board or if on the whole evidence and drawbetween 6 and 7 o'clock. At the time of ing every reasonable inference, it can only his death he was 15 years of age. The din- be conjectured in what manner and from ing room and kitchen of the restaurant, what cause he met his death, so that the where he was regularly employed as a "bus mind is left in suspense and doubt whether boy," were on the second floor of the build- he was at the time within the scope of his ing. In one corner of the kitchen there was employment or attempting to use the elevaa freight elevator. Its shaft extended from tor for purposes of his own, and where one the basement to the top of the building, and conclusion is as rational as the other, then was guarded by heavy doors, which were the cause of his death is a matter of mere supposed to be closed and fastened when speculation and it has not been shown as the elevator was not at the floor. He had required by the Workmen's Compensation been engaged in cleaning a water cooler sit- Act (St. 1911, c. 751, as amended by St. 1912, uated in a passageway between the dining c. 571), that the injury arose out of or in room and kitchen. At a quarter past 6, the course of his employment, Dube's Case, when this work was finished, he was seen 226 Mass. 591, 116 N. E. 234; Sanderson's by the head waiter, and when next seen he Case, 224 Mass. 558, 113 N. E. 355; Savage's was standing in the kitchen near the eleva- Case, 222 Mass. 205, 110 N. E. 283. tor. The employee who saw him in this position stated that she did not know how long he had been there, that she went from the place where she was working to the sink, about half way across the kitchen, and returned immediately, when an outcry was heard, and the dead body was found at the bottom of the shaft. It was estimated that from one to ten minutes elapsed from the time he was last seen alive until the outcry was heard.

Even if the evidence showing that the doors were closed at 6 o'clock was discredited, there was nothing to show they were open, and unless they were open at the time of the injury the fatality could not have occurred. The boy may have accidentally opened them by falling against them, or he may have intentionally opened them for the purpose of using the elevator; but what actually happened on the evidence disclosed is entirely a matter of conjecture.

The upper and lower doors of the elevator, According to the operator's testimony, the guarding the entrance to the shaft, when elevator was left by him in the basement. locked or fastened could be opened only from After the fatality, it was found at the top the inside of the elevator. At times the of the shaft. If the employee attempted doors failed to catch as they came together. to operate it, the position of the elevator When this happened the doors could be would be accounted for. On the other hand, opened from the kitchen by downward pres- there was evidence that when the elevator sure on the lower door, and if so opened, was not fully stopped, it would gradually "and it did not open all the way down to move in the direction of the power, and if the bottom where there was a catch to hold the board could assume that because of this it open, it would close of itself." There was the elevator could gradually move to the top also evidence that the catch holding the of the shaft, it was still a matter of doubt door open "might not be released when the what caused it to rise. The elevator may elevator went up." The elevator operator have been entirely stopped by the operator. testified that he finished his work at 6 The direction of the power may have been o'clock and left the elevator in the basement such that the elevator would not ascend, and and the doors on the second floor were clos- on all the evidence it could not be reasonably ed. No one testified the doors were open, inferred, to the exclusion of other inferences, and there was no evidence that they were that the elevator moved from its position locked or fastened. When the boy was at the basement by the mere force of the

will was executed and that no fraud or undue influence was practiced upon him. Before the trial began the judge was notified that one of the attesting witnesses was sick. On the motion for a new trial the appellant asked the judge to rule that as matter of law it was necessary, according to our practice, for the executor to call all the attesting witnesses, they being accessible. The case is here on refusal to give this request.

power, or was started by some one other | the jury found that the testator was of sound than the employee himself. Taking all the and disposing mind and memory when the facts and circumstances shown, and drawing every reasonable inference, it is not disclosed in what manner or from what cause the doors became open, no satisfactory explanation is given for the location of the elevator at the top of the shaft. What the employee was doing at the time or the exact cause of the fatality cannot be proved with any degree of certainty. These are all matters of pure conjecture and the claimant's case is not established. Sanderson's Case, supra; Savage's Case, supra; Dube's Case, supra. The case at bar is clearly distinquishable from Von Ette's Case, 223 Mass. 56, 111 N. E. 696, L. R. A. 1916D, 641. As the claimant cannot recover we have not considered the other questions argued. Decree reversed. Decree for the insurer.

(236 Mass. 487)

McLEHOSE v. REID et al. (Supreme Judicial Court of Massachusetts. Bristol. Nov. 26, 1920.)

Wills 3822, New, vol. 8A Key-No. SeriesQuestion which could have been raised on trial not subject of exception when presented on hearing of motion for new trial.

Where contestant went to trial without insisting that all of the attesting witnesses be called, one being accessible, though sick, and made no request for ruling on such question, and took no exceptions, but at the hearing on motion for new trial for the first time requested that it was necessary for the executor to call all attesting witnesses who were accessible, such point is not open to him on hearing of his exceptions, as it could have been raised on trial; a question which could have been so raised not being the subject of exception when presented at the hearing of motion for new trial.

Exceptions from Superior Court, Bristol County; Robert F. Raymond, Judge.

Before proceeding with the trial of the issues, the counsel for the executor explained to the trial judge and the appellant's counsel that one of the witnesses to the will was sick, but would be able to attend on the following day. The trial then proceeded for three days. Even if we assume that all the attesting witnesses should have been called, if accessible, and that the absent witness was in fact able to appear in court and testify (Chase v. Lincoln, 3 Mass. 236; Howes v. Colburn, 165 Mass. 385, 43 N. E. 125; O'Connell v. Dow, 182 Mass. 541, 545, 66 N. E. 788), the appellant went to trial without insisting that all these witnesses should be called. He made no request for a ruling on this question and no exceptions were taken by him. At the hearing on the motion for a new trial he, for the first time, made the request that it was necessary for the executor to call all the attesting witnesses who were accessible. This point is not now open to him. It could have been raised at the trial and the rule is well settled that a question which could have been raised at the trial is not the subject of exception when presented at the hearing on a motion for a new trial. Garrity v. Higgins, 177 Mass. 414, 58 N. E. 1010; Lopes v. Connolly, 210 Mass. 487, 496, 97 N. E. 80, 38 L. R. A. (N. S.) 986. Exceptions overruled.

(236 Mass. 476)

HAYES v. METROPOLITAN LIFE INS. CO. (Supreme Judicial Court of Massachusetts. Suffolk. Nov. 24, 1920.)

er had option to reinstate lapsed policy, but no absolute right of reinstatement existed in policy holder.

Proceeding for probate of the will of Wil-1. Insurance365(1)-Industrial life insurliam R. Reid by William W. McLehose, executor, against Malcolm Reid and others. From a decree allowing the will, contestants appealed to the Supreme Judicial Court, which framed issues for trial before the superior court, where the findings were for proponent, and contestants except. Exceptions overruled.

Agent of insurer, writing industrial life policies, held not obliged to accept tender of overdue premiums and reinstate a lapsed policy, though 13 weeks' payments were not in arrears, despite the insurer's authorization to agents to collect overdue premiums with a week's advance premium, if not overdue for more than 13 weeks, and preparation for the agents' use of a form of report of such collections; it being the option of the insurer, acting through its agent, so to do, and there being CARROLL, J. The will of William R. no absolute right of reinstatement in the polReid was allowed in the probate court. Is- icy holder, after the policy had lapsed, until sues were framed and in the superior court 13 weekly payments should be overdue.

Noah Lemaire, of Taunton, for appellants. William S. Woods and Stanley P. Hall, both of Taunton, for appellee.

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2. Insurance

(128 N.E.)

376(1)-Statement of agent | ceipt book, and all such arrears given to an to beneficiary that policy did not lapse until agent shall be at the risk of those who pay certain payments overdue insufficient to mod-them, and shall not be credited upon the policy, ify. whether entered in the receipt book or not." "Grace Period. A grace of four weeks shall be granted for the payment of every premium after the first, during which time the insurance shall continue in force. If death occur within the days of grace, the overdue premiums shall be deducted from the amount payable hereunder, but neither this concession nor the acceptance of any overdue premium shall create an obligation on the part of the company to receive over four premiums which are in arrears

Where an industrial life policy provided that agents of the insurer had no authority to make any modification or waiver of the policy or its provisions, evidence that a collecting agent told the beneficiary that the policy did not lapse until 13 weeks' payments were overdue was insufficient to modify the policy to such effect, or to constitute a waiver of its provisions.

Report from Superior Court, Suffolk County; Christopher T. Callahan, Judge.

weeks."

"Revival. Should this policy become void in consequence of nonpayment of premium, it may be revived, if not more than fifty-two premiums are due, upon payment of all arrears and the presentation of evidence satisfactory to the com

Action by Nellie Hayes against the Metropolitan Life Insurance Company, resulting in directed verdict for defendant. On report to the Supreme Judicial Court. Judg-pany of the sound health of the insured.”

ment ordered for defendant.

Bernard J. Killion, of Boston, for plain

tiff.

Cox & Bacon and W. P. Kelley, both of Boston, for defendant.

JENNEY, J. Nellie Hayes brings this action upon a policy of insurance issued by the Metropolitan Life Insurance Company on the life of her daughter, Nora T. Hayes. The policy was issued on November 24, 1913. The assured died on July 1, 1914.

The defense is based upon the contention that the policy lapsed during the life of the assured, because of nonpayment of the premiums payable weekly with a "grace period of four weeks." It was admitted that the premiums had been paid to April 13, 1914. The plaintiff did not claim that the premiums were paid as required by the policy, but "relied on a tender alleged to have been made by * * * [her] to one Julian, employed as an agent by the defendant." A verdict having been ordered for the defendant, the case is here upon the report of a judge of the superior court.

In accordance with its terms, the policy had lapsed before the tender was made.

The defendant, however, had authorized its agents to collect overdue premiums together with one week's advance premium, unpaid for more than 13 weeks, and had provided that they were not overdue and prepared for their use a form of report to it by the collecting agent, stating that he had collected the amount of arrears and had entered it in the policy holder's premium receipt book. In this notice, the agent requested that "the policy be officially reviv

ed." On the back of this form there was printed, among other provisions entitled "Discretionary Period' Instructions," the following:

"Any industrial policy which is not more than may be collected thirteen weeks in arrears upon by any authorized person,-that is to say, the superintendent, a deputy, general or assistant superintendent, an agent or an office clerk,-irrespective of the fact that the grace period has expired or of the health or presence at the time of collection of the former insured: Provided, that the insured is alive and that the full arrears up to and including the following Thereupon Monday be collected in one sum. such collection may be entered in the P. R. B., and signed by the authorized person making the collection; the former insured will then be read-garded as having been wholly restored to ben

For the purposes of the case, we assume that the jury could have found that on June 30, 1914, the beneficiary made a sufficient tender of the amount required to pay the premiums then due and for one week in dition, which tender was not accepted.

The policy, in the "Conditions" and "Privileges and Concessions to Policy Holders" printed thereon, provided:

efit."

""Notification of Collection of Arrears' must immediately be completed as to each policy, and forwarded to the home office, that the transaction may be completed by the official revival of the policy."

"This policy contains the entire agreement between the company and the insured and the holder and owner hereof. Its terms cannot be [1] The defendant argues that this authorchanged or its conditions varied, except by a ity and the instructions quoted did not conwritten agreement, signed by the president or trol the stated provisions of the policy. It secretary of the company. Therefore, agents is assumed, but not decided, that the policy (which term includes superintendents and assistant superintendents) are not authorized and had been so modified, and that the agent to have no power to make, alter or discharge whom the tender was made was authorized contracts, waive forfeitures, or receive premi- to receive the amount and to reinstate the ums on policies in arrears more than four policy. It is clear, however, that the agent weeks, or to receipt for the same in the re- was not obliged to accept the tender and re

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instate the lapsed policy, although thirteen tiff, and defendant excepts.
weeks' payments were not in arrears. It was overruled.
the option of the defendant acting through
its agent so to do, and there was no absolute
right of reinstatement on the part of the pol-
icy holder.

[2] The evidence that a collecting agent of the company told the beneficiary that the policy did not lapse until thirteen weeks' payments were overdue was not sufficient to modify the policy or to constitute a waiver of its provisions. Under its terms, the agent had no authority to make such modification or waiver. Porter v. United States Life Ins. Co., 160 Mass. 183, 35 N. E. 678.

The premiums were paid to an agent of the company after the death of the insured, but the plaintiff claims no right of recovery because thereof.

In accordance with the terms of the report, judgment must be entered for the defendant. So ordered.

(236 Mass. 488)

DUBE v. KEOGH STORAGE CO. (Supreme Judicial Court of Massachusetts.

Bristol. Nov. 24, 1920.)

1. Municipal corporations 706 (7)-Contributory negligence of street railroad's employé, injured by truck, question for jury.

In an action against a storage company for injuries to the employé of a street railroad, repairing a switch when struck by the company's motor truck, question of plaintiff's due care held for the jury; he having been rightfully on the way, though while engaged in his work of repair he did not continue to look or listen.

2. Municipal corporations 705 (10) Employé of street railroad, repairing track, entitled to rely on assumption truck driver

would exercise care.

Though it was the duty of the employé of

a street railroad to exercise the care of a reasonably prudent person to watch for арproaching motor vehicles when repairing a switch or track, he could rely to some extent on the assumption that the driver of the motor truck which struck him would exercise some care to avoid hitting him.

Exceptions

The charge of the court, so far as material, to the matters discussed in the opinion, follows:

Now, as I understand the testimony, although

it is wholly for you, this man was there in
the exercise of his function to keep a part
of that highway fit for travel, safe for travel.
I understand he was doing something with
reference to a switch on the street railway
tracks. It is important, and, indeed more so
as we travel in street railways, and it is vital,
it is essential, that the switches be kept safe.
so that they will operate properly and so that
street railway cars carrying large numbers
of travelers shall travel over them safely. He
had a right to be.
was there fixing the switch; he was where he
He was doing what was
necessary for the safety of the public that he
should do. So far, no dispute.

Now, how was he doing the work which he was called upon to do then and there? How was he doing it? Well, with reference to safety, I suppose, we ought to consider for a minute at any rate the time in the morning. and whether that was a street that was given up pretty largely to traffic, or congested traffic, at that time of day.

Now, there are certain streets in a city that are crowded with traffic, with all kinds of teams, travelers, and so forth, at certain times day they are practically clear. Now, on conof the day, and at certain other times of the gested streets, as well as streets little traveled-perhaps more because they are congested

it is necessary to keep switches in excellent safe condition, so that, even on the most congested thoroughfares, it is necessary to see that the switches are kept in good condition. But the question is raised here whether this was a congested thoroughfare then and there.

It is not enough to say, of course, that sometimes the place is congested, crowded with traffic. How was it at the time when the man went there to do his work? Because that enters into the question of whether he was doing it as a reasonably careful man would do it.

It seems it was quarter before 8 in the morning, and there was distinct information given you from the witnesses as to whether or not the street was crowded at that time. It is for you to say, but, as I recall in a general way, they said there was not another truck or wagon or anybody else on the street for quite a long distance there. Then, it was not congested Instructions requested at that time if you find that was the fact, and that is wholly for you.

In an action by the employé of a street railroad, injured when struck by defendant's motor truck as he was repairing a switch, instructions given, taken as a whole, held to have correctly covered the subjects referred to in certain requests by defendant, so far as pertinent to the case.

Exceptions from Superior Court, Bristol County; Robert F. Raymond, Judge.

Action by Adelard L. Dube against the Keogh Storage Company. Verdict for plain

What was the condition of the street? Was that a proper time for the man to go down there and do his work? You may say it was. Of course, you may say it was not; that it was carelessness on the part of the man. But, if you say it was, then there is another stephe was doing as the ordinarily careful man would do.

Now, if he was where he had a right to be, as he was, if he was there at a proper time, as you may say he was, what was he doing and how was he doing it? It seems he had a little pad-perhaps we do not get down on

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