(141 N.E.) 1078(1)—Appeal treat ed as waived, when not argued. On appeal from decrees denying petition to vacate decree appointing receiver, and decree denying leave to file demurrer, where appeal from the latter decree was not argued, it will be treated as waived. as to referees, Palmer v. Clark, 106 Mass. (pointment of receiver did not state case for 373, 389; Fairchild v. Adams, 11 Cush. 549; such relief could be waived, and where creditor, Rogers v. Mayer, 151 Mass. 279, 23 N. E. instead of seasonably objecting to jurisdiction, 836; Hanley v. Etna Ins. Co., 215 Mass. proved its claim without reservation, it submitted itself to the court's jurisdiction, and 425, 102 N. E. 641, Ann. Cas. 1914D, 53; could not raise objection that decree appointElectric Supply & Maintenance Co. v. Coning receiver was a nullity. way Electric Light & Power Co., 186 Mass. 449, 71 N. E. 983; Second Society of Univer-5. Appeal and error salists in Boston v. Royal Ins. Co., Ltd., 221 Mass. 518, 109 N. E. 384, Ann. Cas. 1917E, 491; as to arbitrators, Ellicott v. Coffin, 106 Mass. 365; Boyden v. Lamb, 152 Mass. 416, 25 N. E. 609; Warner v. Collins, 135 Mass. 26. It need only be stated that we do not think the experts provided for in G. L. c. 143, 70, can rightly be treated as any one of them. Moreover, the circumstance that express provision is made for the payment of experts when appointed under one section of G. L. c. 143, for decision of one class of ap-for the appointment of a receiver for the depeals, and no such provision is made for those appointed under another section for the decision of a different class of appeals, is some indication that the latter experts were not intended to be included under any general classification of other named judicial officers. It is easy for a case of omission to arise in the enactment of long and complicated statutes. If the case at bar is of that class, the remedy lies with the legislative department of government. Decree ordered is to be entered. Appeal from Superior Court, Hampden County; James H. Sisk, Judge. Suit by the Hampden National Bank against the Hampden Railroad Corporation fendant corporation, in which the Cambridge Savings Bank filed a petition to vacate the interlocutory decree appointing a receiver. From decrees denying the petition, and denying leave to file demurrer, the Savings Bank appeals. Affirmed. The petition to vacate alleged that no pleadings had been had and no decree had been made, except the decree appointing the receiver; that the bill had not been taken pro confesso; that plaintiff, assuming to bring the bill in behalf of creditors, was without authority to represent petitioner; and that no cause of action within the equity jurisdiction of the court was set forth, and the court was without jurisdiction to HAMPDEN NAT. BANK v. HAMPDEN R. R. grant the relief prayed for, and the appoint. CORPORATION. (Supreme Judicial Court of Massachusetts. Hampden. Oct. 10, 1923.) ment of the receiver was beyond the court's jurisdiction and void. The order denying the petition to vacate recited that respondent appeared in open court and assented to 1. Attachment 180-Attaching creditor has the appointment, such action having been rights of purchaser for value. Attaching creditor had rights of purchaser for value so long as the attachment, which was a lien on the property, remained in force. 2. Receivers 32-Court held to have jurisdiction, though bill insufficient. As appointment of receiver is part of jurisdiction of equity, and as superior court, under G. L. c. 214, § 1, has original equitable jurisdiction, where parties were domiciled and property was located in the commonwealth, that court had jurisdiction to consider and determine what action should be taken on bill for appointment of receiver, marshaling of assets, and injunctive relief, though it did not state sufficient grounds for appointment. 3. Receivers right. authorized by its stockholders and directors; that plaintiff's counsel represented, and stated to the court that he represented, creditors having claims amounting to $1,161,000; and that the petitioner, the savings bank, had filed proof of its claim with receiver, and all other creditors had filed proof of their claims pursuant to an order of the court, directing them to prove their claims. Dallinger & Stearns and G. K. Richardson, all of Boston, for appellant. H. W. Ely, of Westfield, and R. G. Dodge and H. S. Davis, both of Boston, for receiver. BRALEY, J. The material facts are not It appears that the Cambridge Savings Bank, a creditor of the railroad, at -Appointment not matter of in issue. Appointment of a receiver is not a matter tached its property on mesne process Febof right. ruary 21, 1921, and the action is now pending The Hampden Na4. Receivers ~57-Creditor held to waive ob- in the superior court. tional Bank, a simple contract creditor, actjection to bill by proving claim. Where court had jurisdiction of subject-ing in its own behalf and in behalf of all matter and parties, objection that bill for ap- other creditors who might join, brought on For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes * March 14, 1921, a bill in equity in that court, | Mitchell-Woodbury Co., 215 Mass. 194, 102 alleging that the railroad was not being op- N. E. 438; Ft. Payne Furnace Co. v. Ft. erated, and that it had obligations in the Payne Coal & Iron Co., 96 Ala. 472, 11 South. form of overdue promissory notes amounting 439, 38 Am. St. Rep. 109; Loaiza v. Superior to $1,500,000; that the Cambridge Savings Court, 85 Cal. 11, 24 Pac. 707, 9 L. R. A. Bank had attached the property of the rail- 376, 20 Am. St. Rep. 197; Chase's Case, 1 road, and "divers other corporations Bland (Md.) 206, 17 Am. Dec. 277; Blum v. * have brought suit to enforce col- Girard National Bank, '248 Pa. 148, 93 Atl. lection of certain of said notes." It is fur- 940, Ann. Cas. 1916D, 609; Slover v. Coal ther alleged that the only assets consist of Creek Coal Co., 113 Tenn. 421, 435, 82 S. W. its real estate, roadbed, track, stations and 1131, 68 L. R. A. 852, 106 Am. St. Rep. 851; franchises, which will be wasted and im- Hopkins v. Worcestor & Birmingham Canal paired and great expense incurred "by rea- Proprietors, L. R. 6 Eq. 437, 447. The suson of said suits and actions," and can only perior court being by statute a court of origbe prevented, and the equal protection of inal jurisdiction of all cases and matters creditors and stockholders secured, by the of equity cognizable under the general prinappointment of a receiver, with power to ciples of equity jurisdiction, and the parties sell or lease the property, and after the pay-having been domiciled in this commonwealth ment of just charges for service and expenses where the property involved was also located, to make distribution of the remainder among could judicially consider and decide what all parties entitled to participation. The action should be taken on the bill, which court on March 17, 1921, with the consent of asked for the appointment of a receiver, the counsel for the defendant railroad, but with- marshaling of assets, and for accompanying out notice to the Cambridge Savings Bank injunctive relief. G. L. c. 214, § 1; Paige v. or other creditors, and after hearing the Sinclair, 237 Mass. 482, 483, 130 N. E. 177. statement of counsel for the plaintiff bank, that he represented creditors whose claims cerned is the power to hear and determine a "The jurisdiction with which we are conaggregated "one million one hundred and sixty thousand dollars," entered a decree appointing a receiver in accordance with the prayers of the bill. It was said in Cam-troversy it is the power to hear and determine bridge Savings Bank v. Clerk of Courts, 243 Mass. 424, 427, 137 N. E. 872, 873: cause. It is not limited to making correct decisions but includes power to decide wrong as well as right. As applied to a particular con the subject-matter of that controversy. And by this is meant the power to hear and determine causes of the class to which the particular controversy belongs. It is the power to act upon the general question in its relation to the facts presented; to adjudge whether such facts call for the exercise of the abstract power." Noyes, J., in Brougham v. Oceanic Steam Navigation Co., 205 Fed. 857, 859, 126 C. C. A. 321, 323. "The Cambridge Savings Bank did not participate in the appointment of a receiver and therefore is not estopped to repudiate the action of the Hampden National Bank, in its own behalf and in behalf of all other creditors of the Hampden Railroad Corporation, which resulted in the appointment of the receiver with the assent of the defendant debtor corporation. It is obvious the Cambridge Savings Bank and [3, 4] The appointment of a receiver is not other creditors having attachments which were Boston Penny Savings dissolved upon the appointment of a receiver a matter of right. were interested parties and had the right to Bank v. Boston & Maine Railroad, 244 Mass. intervene and oppose the appointment of the 488, 138 N. E. 907; Sage v. Memphis & Litreceiver when made, or thereafter on petition tle Rock Railroad, 125 U. S. 361, 375, 8 Sup. to vacate the decree, upon the ground that on Ct. 887, 31 L. Ed. 694. And the petitioner the facts as disclosed in the record the court is forced to contend that a clear abuse of was without jurisdiction to appoint the re-discretion is shown because the bill did not ceiver." state sufficient grounds for the appointment. [1] The petitioner attacks the jurisdiction Pond v. Framingham & Lowell Railroad, 130 of the court to entertain the case or to enter Mass. 194; Falmouth Bank v. Cape Cod the decree. The petitioner as an attaching | Ship Canal Co., 166 Mass. 550, 567, 569, 44 creditor had the rights of a purchaser for N. E. 617; Richardson v. Clinton Wall value so long as the attachment, which was Trunk Co., 181 Mass. 580, 583, 64 N. E. 400. a lien on the property, remained in force. But the record shows that the court issued Whitney v. Metallic Window Screen Manuf. an order directing creditors to prove their Co., 187 Mass. 557, 560, 73 N. E. 663. If, claims on or before a certain date, and that however, the decree stands the attachment before filing its present petition the petitioner has been dissolved by the receiver's appoint-in common with all other creditors, and purment. G. L. c. 223, § 130, Davis v. Mazzu-suant to the order, filed a proof of its debt chelli, 238 Mass. 550, 556, 131 N. E. 186. or claim with the receiver without making [2] "The appointment of a receiver is part any objection to the jurisdiction. The court of the jurisdiction of equity, and is based on as we have said had jurisdiction of the subthe inadequacy of the remedy at law." See ject-matter and of the parties, and the ob23 R. C. L. "Receivers," §§ 3-7, and cases jection that the bill did not state a case for (141 N.E.) be waived. The petitioner, instead of sea- hand side of the road, and the driver of sonably objecting to the jurisdiction proved the truck in which plaintiff was riding its claim without reservation, thereby assert- turned to the left to avoid a collision, but deing its right as a creditor to participate in fendant's automobile turned to the right whatever distribution the court ordered. at the same time. Defendant requested rulAnd having submitted to the jurisdiction it ings, that if the jury found that the driver, is now too late to raise the objection that the Langer, was negligent, and his negligence decree was a nullity. First Congregational contributed to the accident, plaintiff could Church in Raynham v. Trustees, 23 Pick. not recover; that, if plaintiff voluntarily 148; Massachusetts General Hospital v. surrendered all care to the driver, she was State Mutual Life Assurance Co., 4 Gray, bound by his negligence; that the driver 927, 242; Jones v. Keen, 115 Mass. 170, 180; was the agent of plaintiff's father or mother, Dearth v. Hide & Leather Bank, 100 Mass. and, if his negligence contributed to the ac540, 543; Pusey & Jones Co. v. Hanssen, cident, plaintiff could not recover; and that, 261 U. S. 491, 43 Sup. Ct. 454, 67 L. Ed. 763. if the jury found for plaintiff, they should` [5] The appeal from the denial of the peti-award damages only for such injuries as tion for leave to demur not having been argued is to be treated as waived, and the decrees dismissing the petitions should be affirmed. 2. Negligence 93(1) Driver's negligence held not imputable to one riding with him as matter of law. Where it could have been found that girl riding in auto truck was looking ahead, and saw defendant's automobile approaching on wrong side of the road, and that collision occurred so suddenly that she had no time or opportunity to escape, and had no reason to anticipate sudden change of direction by one or both automobiles, which resulted in the collision, driver's negligence was not imputable to her as a matter of law, on ground of voluntary and unconstrained surrender of all care on her part to his caution. Exceptions from Superior Court, Worcester County; Geo. A. Sanderson, Judge. Action of tort by Katherine Stemler, by her next friend, against Corria C. Cady, for personal injuries sustained while riding in auto truck belonging to plaintiff's father and operated by her cousin, Arthur F. Langer, in collision with automobile operated by defendant's agent. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled. flowed from the accident. The court refused P. F. Ward, of Fitchburg, for plaintiff. At DE COURCY, J. The plaintiff, a girl 11 years of age, was injured when an auto truck in which she was riding came into collision with the defendant's automobile, in which he was riding with his chauffeur. The auto truck was owned by her father, and operated by her cousin Arthur F. Langer. On the day of the accident Langer started for Leominster with a load of potatoes; and the plaintiff and her mother rode with him. Fitchburg her mother alighted; and at Langer's request and with her mother's consent, the plaintiff was on the way to Leominster when the accident happened. Admittedly there was evidence for the jury of negligence on the part of Langer and of the defendant's chauffeur. There was a verdict for the plaintiff. The exceptions (assuming that they were properly saved) are to the refusal of the trial judge to give certain requested rulings. [1] These rulings were based upon the assumption that the negligence of Langer as matter of law precluded the plaintiff from recovering, either because he was the agent of her father or mother, or because she had surrendered all care for her safety to him, and his negligence thereby became imputable to her. While the third request assumed as an established fact that Langer was such agent, the jury could find otherwise. if such agency were shown, Langer was not the agent or servant of this plaintiff. The jury could find on the evidence that she was his guest, and exercised no control over his actions in operating the auto truck. Peabody v. Haverhill, Georgetown & Danvers Street Railway, 200 Mass. 277, 85 N. E. 1051. Even [2] The only other question raised is whether Langer's negligence was imputable to the plaintiff on the ground of "voluntary, According to plaintiff's evidence, defend- unconstrained, noncontractual surrender of ant's car was zigzagging and on the left- all care" on her part to his caution. Shultz For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes v. Old Colony Street Railway, 193 Mass. 309, 323, 79 N. E. 873, 8 L. R. A. (N. S.) 597, 118 Am. St. Rep. 502, 9 Ann. Cas. 402. As matter of fact, and notwithstanding her assent to the cross-examiner's leading questions, it could be found on the evidence that she was looking ahead, saw the defendant's automobile approaching on the wrong side of the road, and the collision occurred so suddenly that she had no time or opportunity to escape. So far as the operation of the machine was concerned, she necessarily relied largely on the experienced driver of the car. Griffin v. Hustis, 234 Mass. 95, 125 N. E. 387, and cases cited. And she had no reason to anticipate the sudden change of direction taken by one or both automobiles which resulted in the collision. The judge fully and clearly instructed the jury on the law of imputed negligence so far as applicable, embodying in his charge pertinent portions of the opinion in the Shultz Case. There was no error in the refusal to give the rulings requested. Exceptions overruled. RIZZITTELLI v. VESTINE. (Supreme Judicial Court of Massachusetts. Worcester. Oct. 10, 1923.) 1. Appeal and error 927 (7)—Evidence considered in aspect most favorable to plaintiff when verdict directed. Where verdict was directed for defendant, the case must be considered in its aspect most favorable to plaintiff and testimony exonerating defendant must be disregarded. 2. Municipal corporations 706 (5) Mere happening of accident not evidence that negligence had causal relation to injury. In action for injuries sustained by one struck by automobile while crossing street, mere happening of the accident was not evidence supporting finding that any negligence of defendant had causal relation to plaintiff's injury. 3. Municipal corporations 706 (5)-Finding of causal relation between negligence and plaintiff's injury not warranted. Where party struck by defendant's automobile while crossing street passed through procession of automobiles moving in opposite direction, and there was nothing to indicate that he could have been seen by defendant for more than an instant, if at all, before the injury, finding that any negligence of defendant had causal relation to the injury would not have been warranted. 4. Evidence 586(3, 4)-Testimony that no horn was heard of no value. Testimony that no horn was heard before party was struck by automobile was merely negative, and of no value as evidence that it was not sounded. Exceptions from Superior Court, Worcester County; W. A. Burns, Judge. Action by Matteo Rizzittelli, by his next friend, against Andrew O. Vestine, to recover for injuries sustained when struck by defendant's automobile. Directed verdict for defendant, and plaintiff brings exceptions. Exceptions overruled. Fusaro, Simpson & Foley, of Worcester, for plaintiff. RUGG, C. J. [1] This is an action to received in the late evening of August 16, recover compensation for personal injuries 1919, on Shrewsbury street in Worcester, by being struck by an automobile owned and the plaintiff then 11 years of age, through operated by the defendant. There had been a celebration with fireworks earlier in the evening. At its conclusion the plaintiff on the northerly sidewalk with others followed for some distance a band parading in the street. Then he decided to go home. The street ran substantially east and west at the place in question, and the wrought part of the street northerly of a street railway reservation was 28 feet wide. Another street intersected on the northerly side, near which the plaintiff started to cross Shrewsbury street. There was evidence tending to show that the plaintiff looked up and down Shrewsbury street to see if any automobile was coming; that quite a number of automobiles were coming from the east going westerly "four or five steps away from each other"; that the plaintiff did not see any automobile coming from the west going toward the east ; that "the street was full of autos"; that the plaintiff was "walking fast"; that when about 15 feet from the street railway track he was struck by the left forward wheel of the defendant's automobile traveling from west to east; and that he heard no noise or any horn or other warning, and that other grown-up people and boys were crossing the street at the time. Other testimony exonerated the defendant from blame, but that is laid to one side because the case must be considered in its aspect most favorable to the plaintiff. [2, 3] There is nothing in the evidence to support a finding that any negligence of the defendant had causal relation to the plaintiff's injury. The mere happening of the accident was not evidence to that end. The plaintiff must have come into the pathway of the defendant's automobile by first passing through a procession of automobiles moving on the same street in the opposite direction. There is nothing to indicate that he could have been seen by the defendant for more than an instant, if at all, before the injury. The case is governed by numerous decisions. Lovett v. Scott, 232 Mass. 541, 122 (141 N.E.) N. E. 646; Nager v. Reid, 240 Mass. 211, 133, T. Aitchison. From a decree ordering disN. E. 98; Goetze v. Dominick, 245 Mass. tribution to other parties, respondent David 140 N. E. 802; O'Donnell v. Bay State Street M. Van Horn appeals. Affirmed. Railway, 226 Mass. 418, 115 N. E. 672; Donahue v. Massachusetts Northern St. Ry., 222 Mass. 223, 110 N. E. 281; Mercier v. Union Street Railway Co., 230 Mass. 397, 405, 119 N. E. 764. It is distinguishable from Gray v. Batchelder, 208 Mass. 441, 94 N. E. 702; Rasmussen v. Whipple, 211 Mass. 546, 98 N. E. 592; Booth v. Meagher, 224 Mass. 472, 113 N. E. 367; Emery v. Miller, 231 Mass. 243, 120 N. E. 655, and other authorities on which the plaintiff relies. [4] The testimony that no horn was heard just before the accident "is merely negative and of no value as evidence that it was not sounded." Gibb v. Hardwick, 241 Mass. 546, 549, 135 N. E. 868, 869. Exceptions overruled. CHAMBERLAIN v. VAN HORN et al. (Supreme Judicial Court of Massachusetts. Worcester. Oct. 16, 1923.) The trust instrument provided for distribution after the donor's death among the persons and in the amounts stated in a certain memorandum. In such memorandum David M. Van Horn was named as donee on condition that at the time of the donor's death he should not be married to his present wife. Van Horn did not know of the existence of the conditional donation, nor of the existence of the memorandum or trust instruments, until after Aitchison's death, and the relations between him and Aitchison were friendly, but Aitchison was unfriendly and hostile to Van Horn's wife. E. A. Ryan, of Worcester, for appellant. G. S. Taft, of Worcester, for appellees Sibley and others. BRALEY, J. The right of the respondent David M. Van Horn, a nephew, to participate in the distribution of the property of his deceased uncle, George T. Aitchison, of which the petitioner is the trustee, is to be determined by the construction of the following clause in the memorandum provided for 1. Gifts 34-Conditions tending to induce in the instruments of settlement and duly separation or divorce are void. Precedent conditions annexed to gift to either spouse, which tend to induce husband and wife to separate or obtain a divorce, are void, because subversive of public morality, and destructive of the marriage status. 2. Trusts 119-Intention of donor and validity of condition to be ascertained from language used. Intention of settlor of trust, and validity of condition that donee at time of distribution of trust fund should not be married to his present wife, must be ascertained from unambiguous language used, which cannot be enlarged or restricted by extrinsic evidence that settler objected to the donee's wife, and was unfriendly and hostile to the wife or that the donee was ignorant of the conditions of the memorandum. 3. Trusts 51-Gift on condition that donee should not be married to his present wife held valid. Instrument giving property to trustee, and providing for distribution after the donor's death among certain persons, one of whom was to take on condition that at the time of donor's death he should not be married to his present wife, did not hold out inducement to the donee to separate from his wife, and was valid. Appeal from Probate Court, Worcester County; William T. Forbes, Judge. executed by the settlor, and the trustee: "David Melvin Van Horn, nephew $3,000.00, Worcester, Mass. (on condition that at the time of the death of George T. Aitchison said David Melvin Van Horn is not married to his present wife)." the condition being in restraint of marriage "If you will get rid of her I will make you the richest of the family." The intention of the settlor and the validity of the condition is to be ascertained Proceeding by Frederick H. Chamberlain from the unambiguous language used, which against David M. Van Horn and others for cannot be enlarged or restricted by extrinsic instructions as to disposition to be made of evidence. Best v. Berry, 189 Mass. 510, 75 money in petitioner's hands, as trustee under 109 Am. St. Rep. 651. The wordwritten instruments executed by one George ing of the gift holds out no inducement to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes N. E. 743, |