ment which have not been allowed is sus- [tion it ought to remain still, is evidence of a tained. defect or want of repair. [23] XVII. Since the account is taken as of August 8, 1906, each plaintiff is entitled to interest from that date upon the amount found due to him. Counsel have not fully argued the question what these respective amounts should be, and we think it better to leave that point to be settled by a single justice, or if necessary, by the master. In the first case, the plaintiff Lovejoy is entitled to a decree against the defendant Fowle for the amount due from that defendant, with interest as aforesaid, but without costs; and against all the other defendants except Scalley and the Orange County Trust Company for the total amount due him from both Fowle and Bailey, with interest as aforesaid, and costs. Against the Orange County Trust Company he is to have a decree for costs, and also a decree for the total amount last mentioned, with interest as aforesaid, to be paid out of the goods and estate of Clemson in its hands. But he is to have only one full satisfaction from all the decrees, and any amount that may be available to him from the fund in the hands of the receiver is to be credited to him upon his decrees. As to the defendant Scalley, the bill is to be dismissed with costs. In the second case, the plaintiff Fowle is to have a decree against the defendants (except the defendant Scalley, as to whom the bill is to be dismissed with costs) for the amount found due to him, after allowing for the notes due from him and from Bailey to the old firm of Fowle Brothers and Company, with costs. As the demand of Parker has been allowed and is to be paid accordingly, his intervening petition is to be dismissed without prejudice, unless it shall appear that the fund in the hands of the receiver is insufficient to meet his demand. In that event, he is to have decrees against the defendants in the first case for any balance due him, like those of the plaintiff Lovejoy. And the receiver is to be ordered, after payment of his proper costs and charges, to pay the amount of the approved claims of Parker, of John L. Fowle, and of the Clemson-Bailey Company, in full or ratably, as the amount in his hands may or may not be sufficient therefor, and to pay any balance that may remain to the plaintiff Lovejoy, to be credited on the total amount to which he is entitled as aforesaid. So ordered. COOK v. NEWHALL. (Supreme Judicial Court of Massachusetts. Essex. Jan. 29, 1913.) 1. MASTER AND SERVANT (8 265*)—EVIDENCE -PRESUMPTION-EXISTENCE OF DEFECT. A machine's unexplained automatic starting up, when according to the laws of its construc [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 877-908, 955; Dec. Dig. § 265.*] 2. MASTER AND SERVANT (8 265*)—EVIDENCE -PRESUMPTION-NEGLIGENCE OF MASTER. A machine's unexplained automatic starting up, when according to the laws of its construction it ought to remain still, is evidence of negligence of the owner, or person in charge of it, in failing to discover and remedy the defect. Servant, Cent. Dig. §8 877-908, 955; Dec. Dig. [Ed. Note.-For other cases, see Master and § 265.*] 3. NEGLIGENCE (§ 121*)-DIRECT EVIDENCEPRESUMPTIONS. An unsuccessful attempt to prove by direct evidence the precise cause of injury does not estop the plaintiff from relying upon the presumptions applicable to it. Cent. Dig. §§ 217-220, 224-228, 271; Dec. Dig. [Ed. Note. For other cases, see Negligence, § 121.*] PRE 4. NEGLIGENCE (§ 121*) EVIDENCE SUMPTIONS "RES IPSA Loquitur.” The doctrine of "res ipsa loquitur" arises only in the absence of explanation, or other evidence which the jury believe, as a rational inference that a certain event does not commonly happen except by negligence, and has no application where every circumstance and fact are in evidence, in which case an unexplained cause of injury is not evidence of negligence, but is of which must appear to be negligent before resolved into its component parts, one or more there can be a recovery. [Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 217-220, 224-228, 271; Dec. Dig. 8 121.* vol. 7, pp. 6136-6139; vol. 8, p. 7787.] For other definitions, see Words and Phrases, 5. MASTER AND SERVANT (§ 233*)—MASTER'S LIABILITY-CONTRIBUTORY NEGLIGENCE. Where a servant, operating a machine consisting of a shipper, which controlled its starting and stopping, and a simple slot device, which held the shipper, did not put the shipper squarely back into the slot, and was injured by the starting of the machine, the master was not liable. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 681, 684-686, 701-742; Dec. Dig. § 233.*] 6. MASTER AND SERVANT (§ 108*)—MASTER'S LIABILITY-DEFECT IN MACHINE. Where a servant, operating a machine consisting of a shipper, which controlled its starting and stopping, and a simple slot device, which held the shipper, was injured by the starting of the machine, because the edge of the slot was worn down, the master was liable. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 203; Dec. Dig. § 108.*] 7. MASTER AND SERVANT (§ 108*)-MASTER'S LIABILITY-MACHINERY BECOMING DANGEROUS BY OPERATION. Where a servant, operating a machine consisting in part of a shipper, controlling its starting and stopping, and a simple slot device, holding the shipper, easy of comprehension, was injured by the jarring out of the shipper by the mere operation of the machinery, without any discoverable defect, the master was not liable, unless shipper had so jarred out before. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 203; Dec. Dig. § 108.*] *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 8. APPEAL AND ERROR (§ 263*)-FAILURE TO GIVE INSTRUCTIONS-EXCEPTION. In a servant's action for injuries from the operation of a machine, which was started by a simple slot device as to which there was some evidence of defect, and which was examined in the courtroom, and where the trial judge ruled that the issue was not the unexplained automatic starting of the machine, and assumed that the slot had been explained by the evidence, his failure to submit the law as to automatic starting, in the absence of exception, was not STRUCTION WHOLE. In a servant's action for injuries from the unexplained starting of a machine, a part of the charge, stating that the cause of injury was not unexplained, must have been understood by the jury in connection with the definite causes of injury, which had been stated by the court and tried. [Ed. Note.-For other cases, see Trial, Cent. Dig. 705-713, 715, 716, 718; Dec. Dig. 296.*] 11. APPEAL AND ERROR (§ 1056*)-HARMLESS ERROR-EXCLUDING EVIDENCE. Exceptions to the rejection of evidence will be overruled where it is not shown that harm resulted therefrom. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4187-4193, 4207; Dec. Dig. § 1056.*] 12. MASTER AND SERVANT ( 270*)-ACTION FOR INJURIES-ADMISSIBILITY OF EVIDENCE -CAUSE OF INJURY. In a servant's action for injuries, where there was evidence of the unexplained automatic starting of the machine, and also of definite defects causing it to start, evidence that the servant had not seen other similar machines start from a dead stop was immaterial. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 913-927, 932; Dec. Dig. § 270.*] 13. MASTER AND SERVANT (§ 273*)-ACTION FOR INJURIES-ADMISSIBILITY OF EVIDENCE -APPRECIATION OF DANGER. In a servant's action for injuries, where there was evidence of the unexplained automatic starting of the machine, and also of definite defects causing it to start, the bald inquiry as to his appreciation of danger was not inaterial. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 936-938; Dec. Dig. 8 273.*] N. D. A. Clarke and Jas. C. Batchelder, of Lynn, for plaintiff. Walter H. Southwick, of Lynn, and Sweeney & Cox, of Lawrence, for defendant. RUGG, C. J. [1, 2] The unexplained automatic starting into motion from a state of rest by a machine when according to the mechanical laws of its construction it ought to remain still is not only evidence of a defect or want of repair in the machine, but also of negligence of the owner or person in charge of it in failing to discover and remedy such defect or want of repair. This is firmly established. Ryan v. Fall River Iron Works, 200 Mass. 188, 86 N. E. 310; Chiuccariello v. Campbell, 210 Mass. 532, 96 N. E. 1101, Ann. Cas. 1912D, 510. The whole body of the evi dence may be such that no particular negligence can be found, and yet the accident may indicate some negligence, the details of which cannot be ascertained. James v. Boston Elev. Ry., 204 Mass. 158, 162, 90 N. E. 513. 182 [3] It is true also that "an unsuccessful attempt to prove by direct evidence the precise cause does not estop the plaintiff from relying upon the presumptions applicable to it." Cassady v. Old Colony St. Ry., 184 Mass. 156, 163, 68 N. E. 10, 13 (63 L. R. A. 285); Galligan v. Old Colony St. Ry., Mass. 211, 65 N. E. 48; Parsons v. Hecla Iron Works, 186 Mass. 221, 223, 224, 71 N. E. 572; McNamara v. Boston & Maine R. R., 202 Mass. 491, 497, 89 N. E. 131. But it is only the unexplained automatic acting of machinery when it should remain at rest which gives occasion for the application of the rule. [4] Instances may arise when the whole situation is fully disclosed, and the starting may appear definitely as due to a particular cause or to one of several distinct and defined causes, and all other causes, conjectural or uncertain in their nature, may be excluded upon evidence which is not open to dispute. Or a plaintiff may place his ground of recovery upon a special cause, and not rely upon the automatic starting. This is not the common case. But Ross v. Pearson Cordage Co., 164 Mass. 257, 41 N. E. 284, 49 Am. St. Rep. 459, illustrates the application of this aspect of the rule. If this is the posture of the case, then the automatic starting of the machine as an unexplained cause of injury does not remain as evidence of a tortious act, but is resolved plainly and without doubt into its component parts, and one or more of these parts must appear to be tortious before there can be recovery. The Exceptions from Superior Court, Essex doctrine of res ipsa loquitur has no applicaCounty; Frederick Lawton, Judge. Action by Robert C. Cook against Frank E. Newhall. Judgment for defendant, and plaintiff excepts. Exceptions overruled. tion where every circumstance and fact are in evidence. Gibson v. International Trust Co., 177 Mass. 100, 103, 58 N. E. 278, 52 L. R. A. 928. Indeed, that doctrine arises only "in the absence of explanation or other evi- negligent, and that if the third was the cause he would be found negligent if the shipper had jarred out before, but not if this was the first time it had jarred out. As applied to the issues which appear to have been raised at the trial, there was no error in the charge. [8] While generally it would be the duty of a trial court to say that the unexplained automatic starting of a machine from a position of rest was evidence of negligence in its maintenance or care, yet in the case of a simple device which has been brought into the courtroom and has been examined, where definite causes of starting have been discussed and tried and the judge rules as the basis of his charge that the issue is not the unexplained automatic starting of a machine and assumes as a fact that everything in connection with the slot, to which alone attention was directed, was open to the jury and had been explained by evidence and this without specific exception, it cannot be said that the plaintiff shows that a wrong has been done him. Any statement of law upon the topic of automatic starting, however sound in itself, became inapplicable. If the statement of the judge that everything about the slot, which was the sole point of attack by the plaintiff, was open and obvious was not according to the contention of the plaintiff, then exception should have been taken to it. [5-7] The trial judge instructed the jury that "This is not a case, as it seems to me, of an accident happening unexplained." He then proceeded to describe the machine briefly as disclosed by the evidence. It was a corn cutter operated by steam power. It was brought into the courtroom and exhibited to court and jury, and they saw everything about it, except that it was not coupled to an engine. The plaintiff was an experienced and intelligent workman of mature [9, 10] It was not enough for him to take years. The slot which held the shipper the general exception, because on the facts seems to have been a simple device, whose stated by the judge it was not necessary to operation was easy of comprehension. The say that the automatic starting of the mamachine itself was comparatively new, and chine was evidence of the defendant's neglihad been bought from a reputable dealer, gence. There is nothing in the record to and had been used in the aggregate only a show that the statement of facts made by the few days. The trial proceeded apparently on judge was not correct. The sentences in the the theory that the shipper, which controlled charge, which taken by themselves appear to the starting and stopping of a part of the be obnoxious to the rule of Ryan v. Fall Rivmachine, came out of a slot, into which the er Iron Works and Chiuccariello v. Campplaintiff had put it, and thereby started the bell, are to be read, and must have been unmachinery. The causes suggested in argu- derstood by the jury, in connection with the ment and the only ones that had been sug-questions which in fact had been tried, and gested (according to the charge of the judge) were (1) that the shipper was not put squarely back into the slot; (2) that the edge of the slot was worn down, so that it was not held firmly or (3) that it jarred out by the mere operation of the machinery without the existence of any defect which could be discovered by inspection and that it had so started before the plaintiff's injury. So far as can be judged from the printed record, considerable emphasis was placed upon the cause last mentioned. With reference to these matters the jury were instructed that if the first was the cause, the defendant could not be found negligent; that if the second was the cause, he could be found which were stated by the judge. [11-13] The plaintiff does not show that he has been harmed by the rulings in the rejection of evidence, and his exceptions in this regard must be overruled. It was of no consequence upon any issue, so far as appears, that the plaintiff had not seen other similar machines start from a dead stop. The bald inquiry as to the plaintiff's appreciation of danger does not seem to have been material. See Jeddrey v. Boston & Northern St. Ry., 198 Mass. 232, 84 N. E. 316. Appreciation of danger is a composite matter dependent upon knowledge of facts and the results likely to follow them. Exceptions overruled. A spendthrift trust with no vested interests is created where a fund is settled, from an expressed desire to provide for maintenance and support of H. and wife, and for the benefit of their issue, but with authority to the trustees to pay over the income, quarter annually, in their discretion, and in such proportion as they may at the time of each payment determine, to H. and wife, or the survivor, and to their issue, or to any one or more of such per sons. [Ed. Note. For other cases, see Trusts, Dec. Dig. § 141.*] 2. TRUSTS (§ 273*)-INCOME-INTEREST OF RE MAINDERMAN. position of the income of the trust fund. Case reported. Decree rendered. Howard K. Brown, of Boston, for the Trustees. J. L. Thorndike and R. G. Dodge, both of Boston, for defendants Hoague and others. S. S. Fitz Gerald, of Boston, for defendants R. H. Barnwell and others. W. D. Turner, of Boston, for defendant Eliza S. Barnwell. R. D. Ware, of Boston, for A. S. Hulbert and Boaz Duncan. BRALEY, J. [1-4] The plaintiffs are trustees under an indenture which after reciting that the settlor from motives of good will was desirous of settling a certain fund for the maintenance and support of Edwin J. Hulbert, and Frances C. Hulbert, his wife, and for the benefit of their issue, and defining the powers of the trustees as to investments and reinvestments provided, that the fund should be held "in trust to pay over the net rents, profits, dividends and income of said trust property quarter yearly as nearly as may be, but entirely at their discretion, and in such proportions as they may at the time of each payment fix and determine, to the said Edwin J. Hulbert and Frances C. Hulbert, his wife, or the sur[Ed. Note.-For other cases, see Trusts, Cent. vivor of them, and to their issue, or to any Dig. 386; Dec. Dig. § 273.*] one or more of such persons, or at the dis That a deed of trust, providing that the trustees shall pay over the income, quarter yearly as nearly as may be, but in their diseretion, and in such proportion as they may at the time of such payment determine, to H. and wife, or the survivor, and to their issue, or to any one or more of such persons, and on the death of H. and wife to pay over the principal to their issue, makes no specific provision for disposition of the accrued income, in case of the survivor of the spouses dying between quarterly payments, is not decisive of whether it falls into the principal. 3. TRUSTS (§ 280*)-PowerR OF TRUSTEES-IN-cretion of said trustees to apply the same, COME. Though the deed of trust, executed from an expressed desire of settling a fund for the maintenance of H. and his wife, and for the benefit of their issue, provided for the trustees paying over the income, quarter annually as near as may be, but at their discretion, and in such proportion as they might at each payment determine, to H. and his wife, or the survivor, and to their issue, or to any one or more of such persons, and on the death of the survivor of the spouses distributing the principal among the issue, the trust being primarily for the support of H. and his wife, it was within the discretionary powers of the trustees, as carrying out its purpose, to reimburse the estate of H., the survivor, from income which had accrued, but had not been fully collected, at the time of his death, for debts which he had incurred for his sustenance between the date of the last quarterly payment and his death, occurring between quarters. [Ed. Note.-For other cases, see Trusts, Cent. Dig. 400; Dec. Dig. § 280.*] 4. TRUSTS ( 147*) - ASSIGNMENTS RIGHTS ASSIGNABLE-POSSIBILITIES. Though on the death of H. trustees are to pay the principal to his heirs, yet, it being in their discretion whether they distribute income which had accrued before his death to payment of his debts or to his heirs, if they apportion any of it to the heirs, the part coming to one of them is to be paid to her, and not to one to whom she has made an assignment. [Ed. Note. For other cases, see Trusts, Cent. Dig. 192; Dec. Dig. § 147.*] or any part thereof for any one or more quarters to the support of any one or more of such persons, or to the education of any one or more of such persons, who may at the time of such application be under the age of twenty-one years, until the death of the survivor of said Edwin J. and Frances C., it being expressly provided, that the discretion of said trustees shall be absolutely free and unfettered as to which and how many of such persons shall receive each of said quarterly payments, and in what proportions, and as to whether and in what proportions or amounts the said rents, profits, dividends and income or any part thereof shall for any one or more quarters be applied to the support or education of any one or more of said persons, and as to withholding from any one or more all share in, or benefit from any one or more of said quarterly payments; and such discretion shall be exercised in the fullest and most unlimited manner at the time of making each of such quarter yearly payments, and not previously." A spendthrift trust where there are no vested interests is here created, and the trustees from the beginning paid to the husband who survived his wife, but is now dead, the entire net income quarterly, although no regular quarter days were ever Report from Supreme Judicial Court, Suf- established. The trustees held at his death folk County. the income accruing since the last payment Suit by George V. Leverett and others, which amounted to nearly a quarter part. trustees, against Elizabeth S. Barnwell and It having been further provided, that upon others, for direction of the court in the dis- the death of the surviving spouse the trus sary for the support of husband and wife COE v. RICKER. (Supreme Judicial Court of Massachusetts. Suffolk. March 8, 1913.) Loss oF PROPERTY OF Boarder. tees are to convey, divide, distribute and pay over the principal to and among their issue, who are to take by right of representation, the trustees if they have the power, intend to apportion the accrued income between the administrator of his estate and those who are entitled to take as his heirs at law. The question for decision therefore is, whether the accrued income fell into the principal upon the death of Edwin J. Hulbert. It is true that no specific provision for apportionment is found, if his death occurred between the quarterly payments. But this is not decisive. McElwain v. Hildreth, 203 Mass. 376, 379, 89 N. E. 567. The trust is not intended solely for the benefit of the remaindermen. It is primarily for the support and maintenance of the husband and wife to whom the whole income could be paid. To secure this, the broadest powers of administration are conferred, with which the court will not interfere except upon clear proof, that the trustees are abusing their authority and acting in perversion of the trust. Proc- 1. INNKEEPERS (§ 11*)-BOARDING HOUSEtor v. Heyer, 122 Mass. 525; Sells v. Delgado, 186 Mass. 25, 70 N. E. 1036. If the purpose and intention of the settlor, as shown by the provisions for his benefit, were not fully accomplished at the death of Edwin J. Hulbert, the power to effectuate that purpose is not a mere naked power which coincidently perished, but being a power coupled with a trust it survived. Chandler v. Rider, 102 Mass. 268; May v. Brewster, 187 Mass. 524, 73 N. E. 546; Ely v. Dix, 118 Ill. 479, 9 N. E. 62; Johns Hopkins University v. Middleton, 76 Md. 186, 205, 206, 24 Atl. 454; Cotton v. Burkelman, 142 N. Y. 160, 163, 36 N. E. 890, 40 Am. St. Rep. 584; Wood v. White, 4 Myl. & Cr. 460; In re Cotton's Trustees, L. R. 19 Ch. Div. 624. It is conceded, that in expectation of the continuance of the income, and in reliance upon it, he incurred for his reasonable sustenance during the period elapsing between the date of the last payment and the date of death, debts which remained unpaid and are in excess of the accrued income, The right of the trustees to make advancements in anticipation of income is denied, yet after income had been received, they are unfet The proprietor of a boarding house is bound to use reasonable care for the protection of the goods of his boarders; what is reasonable care depending upon the circumstances, including the degree of control which the proprie tor has. [Ed. Note. For other cases, see Innkeepers, Cent. Dig. §§ 3, 17-40; Dec. Dig. § 11.*] 2. INNKEEPERS (§ 11*) - BOARDER'S DEPOSIT OF VALUABLES-NATURE AND EXTENT OF LIABILITY "DEPOSITUM." as a hotel, who had no innkeeper's license, reWhere the proprietor of a house described ceived plaintiff to board at a weekly rate, and accepted jewelry from her to put in his safe for safe-keeping, the deposit was not a naked deposit without reward, a "depositum," as to which the proprietor was liable only for loss due to gross negligence. [Ed. Note.-For_other_cases, see Innkeepers, Cent. Dig. §§ 3, 17-40; Dec. Dig. § 11.* For other definitions, see Words and Phrases, vol. 3, p. 2004.] 3. TRIAL (§ 250*)-REQUESTED INSTRUCTIONS -MATERIALITY. Where gross negligence was not the measure of defendant's liability, a requested instruction defining gross negligence was rightly refused as immaterial. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 584-586; Dec. Dig. § 250.*] Exceptions from Superior Court, Suffolk County; John A. Aiken, Judge. Action by Mary E. Coe against George E. Ricker. Judgment for plaintiff, and defendant excepts. Exceptions overruled. The defendant's seventeenth request was as follows: "Gross negligence is a materially greater degree of negligence than the mere lack of ordinary care." tered as to its disbursement if within the confines of the trust. If they had contracted with tradesmen during this period to furnish supplies necessary for his comfortable maintenance, unquestionably they could have recouped the indebtedness from the income in their hands at his death. King v. Stowell, 211 Mass. 246, 250, 98 N. E. 91; In re Saunderson's Trusts, 3 K. & J. 497, 499. It would not subserve, but would defeat the plan of settlement, if the just expenses of MacPherson & Mahar, of Boston, for plainpast maintenance could not be paid, simply tiff. Otto C. Scales, of Boston, for defendant. because death had intervened before funds could be transferred. The power conferred HAMMOND, J. This is an action to reto carry out to the end this provision, did cover the value of certain jewelry which had not terminate until all disbursements neces-been placed by the plaintiff in the custody of For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |