titioner's exception to the refusal of the single justice to rule that "on the evidence he was bound to find for the petitioner, and was not justified in finding for the respondents."

have seen the box in the aisle half an hour | merits an order was entered dismissing the before she was injured. But no such rea- petition. The case is before us on the peson for extending the examination was called to the attention of the trial judge. The plaintiff had been cross-examined at considerable length as to her movements between 4 o'clock, when she left school, and 20 minutes after 4, about which hour she said she reached the defendant's store. When the judge asked counsel if he was not "taking a good deal of time for a variation of a couple of minutes," the only reply was, "It may become important." No explanation was made as to how it was important. Nor was any suggestion made later in the trial that the exact time had become important and that the defendant desired further opportunity for cross-examination on that point. It is to be noted, also, that the last witness called by the defendant, the clerk who accompanied the plaintiff to the workroom, testified that they were together away from the counter for 15 minutes before the accident. Under these circumstances we are of opinion that no reversible error is shown. Jennings v. Rooney, 183 Mass. 579, 67 N. E.

O'TOOLE v. JENNINGS et al.
(Supreme Judicial Court of Massachusetts.
Suffolk. Oct. 23, 1914.)

INSURANCE (§ 750*)-FRATERNAL BENEFIT IN-
SURANCE-FORFEITURE OF SICK AND FUNER-
AL BENEFITS.

Under the constitution of a fraternal order. providing that any member whose dues were not paid in advance should receive no sick or funeral benefits, and that no member taken sick while in arrears could pay the amount thereof and be entitled to sick benefits, the administratrix of a member who was injured September 29th, took sick October 1st, and died December 22d, and whose dues for October and for some months preceding were not paid until October 10th, was not entitled to sick benefits.

[Ed. Note. For other cases, see Insurance. Cent. Dig. §§ 1895, 1896, 1903; Dec. Dig. § 750.*]

Exceptions from Supreme Judicial Court, Suffolk County.

Mandamus by Margaret E. O'Toole, administratrix, against Thomas M. Jennings and Petition dismissed after hearing on the merits, and petitioner excepts. Exceptions overruled.

another.

W. O. Childs, of Boston, for petitioner. Thomas L. Walsh and James H. Walsh, Jr., both of Fitchburg, for respondents.

As to the sick benefit: It was not in dispute that Dr. O'Toole "was injured September 29, 1911, sickened October 1, 1911, [and] died December 22, 1911." It appears from the receipt in evidence that his dues, which were payable monthly in advance, were not paid for the month of October, nor apparently for some months preceding, until the 10th of October. Article XXII, § 3, of the constitution for subordinate aeries, dealing with the subject of dues, provides that “any member whose dues are not paid in advance shall to receive any not be permitted

sick or funeral benefits." And article XXIV, which regulates benefits, expressly stipulates in section 2 that "no member who is taken sick while in arrears can, by paying his arrears, become entitled to benefits during such sickness."

The record does not show that any salary was due to Dr. O'Toole as aerie physician on October 1st. On the contrary, as the salary was payable quarterly, that which was paid him on November 14th presumably was for the three months preceding. Accordingly we need not consider whether unpaid salary could be taken into account in determining whether he was in arrears. Clearly the evidence would warrant, if indeed it did not compel, the single justice to find that Dr. O'Toole was in arrears at the time when he fell sick, and hence that the petitioner could not recover sick benefits.

The funeral benefit cannot be recovered for two reasons. So far as appears by the record the monthly dues of the intestate were not paid either for November or December, 1911, and wonsequently no such benefit was payable under the constitution. Further, as it well could be found that the funeral was not conducted under its auspices, by article XXV, § 3, of the constitution the aerie was not required to defray the funeral expenses, nor, in the absence of a widow, orphans, parents and dependents, to pay any funeral benefit.

The petitioner failed to make out a case on the merits. Whether she invoked the proper form of remedy need not be considered. Exceptions overruled.

(219 Mass. 72)

LODI v. GOYETTE. (Supreme Judicial Court of Massachusetts. Hampden. Oct. 23, 1914.)

1. APPEAL AND ERROR (§ 511*)—DISMISSALRECORD.

DE COURCY, J. The petitioner seeks to recover from the Wachusett Aerie No. 1635 of the Fraternal Order of Eagles a sick benefit and a funeral benefit alleged to be Where there was nothing in the record on due to the estate of her intestate, Dr. Mi-appeal from the refusal to vacate an order alchael J. O'Toole. After a hearing on the lowing an extension of time for presenting the For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

bill of exceptions for allowance to sustain the allegations of fact in the motion to vacate, such as the date of filing and of allowing the exceptions, the appeal would be dismissed.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2319-2321; Dec. Dig. § 511.*]

2. APPEAL AND ERROR (§ 931*) — REVIEW GENERAL FINDING-EVIDENCE.

Where the evidence supports any count in the declaration, a general finding for the plain

tiff must stand.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3728, 3762-3771; Dec. Dig. 931.*]

3. VENDOR AND PURCHASER (§ 334*) — REMEDIES OF PURCHASER-RETURN OF DEPOSIT.

quested which would be applicable thereto. And it must be assumed also that he did not find on the fifth count alleging the impossibility of performing the contract, because he ruled, as requested by the defendant, "that the plaintiff must prove that he was not only able but ready to perform."

The purchase price of the property was $4,410. A payment of $100 was made on the date of the agreement, $300 were to be paid at the time of the delivery of the deed, and the balance was to remain on mortgage. As we construe the agreement, if the plaintiff was unable to procure a loan on the property from a savings bank he could give his own note and mortgage for the entire balance of $4,010. It could be found that on the last day of the option, so called, he was at the office where the papers were to be passed, with the $300, ready to carry out the terms of the agreement, and so informed the defendant by telephone, and that the defendant declined to come to the office or to carry out [Ed. Note. For other cases, see Vendor and the contract. Upon such breach of the agree Purchaser, Cent. Dig. §§ 959-980; Dec. Dig. $ment the plaintiff became entitled to a re334.*]

Where property was agreed to be sold for a certain amount, with a deposit on the date of the agreement, a payment on delivery of the deed and the balance on mortgage, and on the last day of the option the purchaser was at the place of performance, ready to make the payment then due, and so informed the vendor, who declined to be present or to carry out the contract, there was a breach of the agreement, entitling the purchaser to a return of the deposit money.

4. CONTRACTS (§ 48*)-EXTENSION OF TIMECONSIDERATION-SEAL.

An agreement under seal to extend the time for carrying out a sale of land imports a consideration.

[Ed. Note. For other cases, see Contracts,
Cent. Dig. § 406; Dec. Dig. § 48.*]
Exceptions from Superior Court, Hampden
County; John A. Aiken, Judge.

Action by Joseph H. Lodi against Arthur J. Goyette. Findings were for plaintiff, and defendant excepts, and from an order allowing an extension of time for presenting the bill of exceptions for allowance, and from the refusal to vacate such order, plaintiff appeals. Order affirmed and defendant's exceptions overruled.

Franklin N. Newell of Springfield, for plaintiff. H. A. Buzzell, of Springfield, for defendant.

turn of the deposit money. This, with other Corroborative evidence, furnishes ample support for the finding under the first count. Whether there was evidence to warrant a finding under the second and fourth counts also, need not be considered.

[4] As to the extension of the time for carrying out the sale, it is sufficient to say that the agreement to do so was under seal, which imports a consideration. Roth v Adams, 185 Mass. 341, 70 N. E. 445.

We find no error in the court's refusal to

rule as requested.

Order appealed from affirmed.
Exceptions overruled.

(219 Mass. 164) TINKHAM v. EVERSON et al. (Supreme Judicial Court of Massachusetts. Suffolk. Oct. 24, 1914.)

MASTER AND SERVANT (§§ 286, 288, 289*)—

INJURIES TO SERVANT-CONTRIBUTORY NEG-
LIGENCE-ASSUMPTION OF RISK.

DE COURCY, J. The plaintiff appealed from the order allowing an extension of time 1. for presenting the bill of exceptions to the presiding judge for allowance under rule Where the evidence warranted the jury Ixiv of the superior court. Assuming that in finding that a laborer protested against workthe appeal is properly before us it must being at the foot of an overhanging gravel bank, and that the superintendent told him to go ahead, that he was there to watch, and that the laborer was killed by a fall of earth from the bank after he had been working about half an hour, the issues of the laborer's due care and assumption of risk, and of the negligence of the superintendent, were for the jury.

dismissed.

[1] An appeal raises only such questions of law as appear by the record. There is in this record nothing to sustain the allegations of fact in the plaintiff's motion, such as the date of filing and that of allowing the exceptions. Fay v. Upton, 153 Mass. 6, 26 N. E.

997.

[2, 3] As to the defendant's exceptions. If the evidence would support any count in the declaration, the general finding for the plaintiff must stand. It is clear, however, that

the trial judge did not make his finding on the third count, based on loss of profits, because he refused to give the sixth ruling re

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 10101015, 1017-1033, 1036-1042, 1044, 1046-1050, 1068-1089, 1090, 1092-1132; Dec. Dig. §§ 286. 288, 289.*]

2. TRIAL (8 174*)-TAKING QUESTION FROM JURY-DIRECTED VERDICT.

Where an action for the death of a laborer declaration, two only of which were supported was submitted to the jury on three counts of the by the evidence, and no special ruling was requested as to the third, a general request that

a verdict be directed for the defendant was earth that fell, and he died after some hours properly refused.

[Ed. Note.-For other cases, see Trial, Cent. Dig. 398; Dec. Dig. § 174.*]

3. DEATH (§ 19*)-MASTER AND SERVANT (8

252*)-DEATH OF SERVANT-MASTER'S LIABILITY-NOTICE.

A notice which stated the time, place, and cause of the injury to an employé, as required by Rev. Laws, c. 106, § 75, in force at the time of the accident, is sufficient basis for the recovery of damages, both for the death and for suffering before death.

[Ed. Note.-For other cases, see Death, Cent. Dig. § 20; Dec. Dig. § 19; Master and Servant, Cent. Dig. § 806; Dec. Dig. § 252.*] 4. Death (§ 55*)—AMENDMENT OF DECLARA

TION-NEW CAUSE OF ACTION.

Under Rev. Laws, c. 173, §§ 48, 121, allowing amendments to pleadings, where the court finds that the action relied on by plaintiff in the proposed amendment is the cause of action originally relied on, counts of a declaration by the administrator of an employé to recover for the conscious suffering and death of the employé, under Rev. Laws, c. 106, § 72, allowing the legal representatives to recover damages for the death, in addition to those for the injury, may be amended by adding allegations that the deceased left a family dependent upon him for support.

[Ed. Note.-For other cases, see Death, Cent. Dig. 72; Dec. Dig. § 55.*]

Exceptions from Superior Court, Suffolk County.

Action by George Holden Tinkham, administrator, against Edward W. Everson and others. Verdict for plaintiff, and defendants except. Exceptions overruled.

The amendment to the fifth and sixth counts of plaintiff's declaration, referred to in the opinion, consisted in the addition to each count of the following allegation:

"That at the time of the death of said intestate he had next of kin, to wit, a wife, Angela Coppola, and four minor children, Raffaele Coppola, Francesco Coppola, Giovanni Coppola, and Luca Coppola, who were dependent on his wages for support, and that said dependent next of kin were surviving at the time of the commencement of this action."

John E. Crowley and Simon E. Duffin, both of Boston, for plaintiff. Arthur H. Russell, of Boston, for defendants.

of conscious suffering. Plainly the issues of his due care and assumption of risk, and that of the negligence of the superintendent, were for the jury. Chiappiani v. Fitzgerald, 191 Mass. 598, 77 N. E. 1030; Gettins v. Kelley, 212 Mass. 171, 98 N. E. 684; Polvere v. Hugh Nawn Contracting Co., 215 Mass. 199, 102

N. E. 334.

[2] The case went to the jury on the substituted fifth and sixth counts, alleging negligence of a superintendent, and apparently on the original fourth count alleging a deis now argued that a verdict for the defendfect in the ways, works and machinery. It ants should have been ordered on the fourth count. But there was no ruling specifically requested as to that count, as in Lynch v. Allyn, 160 Mass. 248, 35 N. E. 550. And as their was evidence to support the other counts, the general request that a verdict be directed for the defendants was rightly refused.

[3, 4] The notice stated the time, place and cause of the injury, as required by R. L. c. 106, § 75, then in force. It was a sufficient basis for the recovery of damages both for injury and death. See Meniz v. Quissett Mill, 216 Mass. 552, 104 N. E. 286. Presumlied upon the provisions of R. L. c. 106, § ably the original fifth and sixth counts re72, which allowed the legal representative to recover damages for the death in addition to those for the injury. We cannot say, as matter of law, that the amendments allowed by the trial judge introduced a new cause of action and were not warranted. R. L. c. 173, §§ 48, 121; Herlihy v. Little, 200 Mass. 284, 86 N. E. 294; Polvere v. Hugh Nawn Contracting Co., 215 Mass. 199, 102 N. E. 334. Exceptions overruled.

(219 Mass. 113)

TAYLOR v. ROSENBERG.
(Supreme Judicial Court of Massachusetts.
Worcester. Oct. 24, 1914.)
CHAMPERTY AND MAINTENANCE (§ 5*) --WHAT
CONSTITUTES.

Where land is condemned by a railroad company, a contract between. the landowner and his attorney to pay the latter a percentage of the damages recovered in return for his services is not champertous, where the parties assumed that some compensation would inevitably be recovered.

DE COURCY, J. [1] There was evidence to warrant the jury in finding the following facts: The plaintiff's intestate, Guistiniano Coppola, and 17 or 18 other laborers were ordered by the defendants' foreman and statutory superintendent to dig at the foot of a gravel bank that was 15 or 16 feet high and had an overhang of about 18 inches. Coppola protested that he never had worked in such a place; but the superintendent said: "Go ahead and go to work. I am here to watch you people." This superintendent also testified that "his job was to warn the men, to keep them in a safe place." On the bank, and 3 feet back from the edge, 4 men worked with bars, prying off the top. The intestate had been at work for about half an hour and defendant excepted. when he was struck by a stone or mass of ruled.

[Ed. Note.-For other cases, see Champerty and Maintenance, Cent. Dig. §§ 24-51; Dec. Dig. § 5.*]

Exceptions from Superior Court, Worcester County; Robt. F. Raymond, Judge.

Action by Marvin M. Taylor against Harry Rosenberg to recover compensation for services as an attorney at law, rendered under a contract to receive a percentage of the damages recovered for the condemnation of land. There was a judgment for plaintiff, Exceptions over

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

C. B. Perry, M. M. Taylor, and M. C. Tay-, were of a type that permitted it to be pushed lor, all of Worcester, for plaintiff. D. J. open in either direction. Daley and W. A. Murray, both of Boston, for defendant.

SHELDON, J. These exceptions relate only to the first count of the plaintiff's declaration.

As the plaintiff was about to go from the vestibule into the store another person passed ahead of her and pushed the door open. As it swung back she put up her hand to shield her head and glasses, and apparently allowed her forefinger to project beyond the edge of The special contract found to have been the door, so that it was caught between the made between the parties was not champer-edge and the door frame. tous. The plaintiff in any event was to be paid for what he was to do. Both parties treated it as certain that the defendant must recover some compensation for the taking of his land by the railroad company. It was merely the amount of the plaintiff's compensation that was made dependent upon the amount so to be recovered. The facts here presented are stronger for the plaintiff than those which appeared in Hadlock v. Brooks, 178 Mass. 425, 59 N. E. 1009, and the decision there rendered is decisive in favor of this plaintiff.

Exceptions overruled.

(219 Mass. 142)

SMITH V. JOHNSON et al. (Supreme Judicial Court of Massachusetts. Suffolk. Oct. 24, 1914.)

1. NEGLIGENCE (§ 32*)-WHAT CONSTITUTES. Where plaintiff, in entering defendant's store through a swinging door, put out her hand to guard her face from the door, which was swinging in her direction, and it was crushed between the door and the jamb, defendant was not liable; such door being in good condition and similar to those generally used. and there being no such crowd as would require the keeping of a doorman.

[1, 2] We are of opinion that the record discloses no negligence on the part of the defendants. The doors, as described by the testimony and shown by the photographs, were of ordinary construction, and were substantially like those in general and common use for many years in Boston and elsewhere. There was nothing to show that they were not entirely safe when properly used by persons passing through them. If, as the plaintiff's somewhat confused testimony indicates, the ordinary speed of the door was increased by another customer negligently pushing in the opposite direction, the defendants are not responsible therefor. And assuming in the plaintiff's favor that there was only the usual recoil of the door, the failure to furnish doorkeepers or attendants in no way contributed to the accident. It appears that there was no pushing or jostling by the crowd of Christmas shoppers. In short, the evidence fails to disclose the breach of any legal duty which the defendants owed to the plaintiff. Hunnewell v. Haskell, 174 Mass. 557, 55 N. E. 320; Lord v. Sherer Dry Goods Co., 205 Mass. 1, 90 N. E. 1153, 27 L. R. A. (N. S.) 232, 137 Am. St. Rep. 420, 18 Ann. Cas. 41; Dolan v. Callender, McAuslan & Troup Co., 26 R. I. 198, 58 Atl. 655; Pardington v. Abraham, 93 App. Div. 359, 87 N. Y. Supp. 670, affirmed 183 N.

[Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 42-44; Dec. Dig. § 32.*] 2. NEGLIGENCE (§ 62*)—OwNER OF BUILDING-Y. 553, 76 N. E. 1102. LIABILITY.

The owner of a store, to which entrance was had through a swinging door, is not liable for an injury to a customer occasioned by the negligence of another customer, who jammed the door on the first one's hand.

[Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 76-79; Dec. Dig. § 62.*]

Report from Superior Court, Suffolk County; Lloyd E. White, Judge.

Action by Minnie A. Smith against Edward C. Johnson and others. There was a verdict for defendants. On report. Judgment for defendants on the verdict.

Loring, Coolidge & Noble, of Boston, for plaintiff. Dickson & Knowles, of Boston, for defendants.

DE COURCY, J. The forefinger of the plaintiff's left hand was crushed by a swinging door at the entrance to the retail dry goods store of the defendants. This was the center one of three single doors between the vestibule and the store, was made of plate glass with a border of wood at the top, bottom and sides, and was about 7 feet high, 22 feet wide and 3 inches thick. The hinges

The plaintiff's testimony leaves largely to conjecture the explanation of how her finger happened to get between the door and the frame when the door swung toward her. Whether it would warrant the jury in finding that she was in the exercise of due care, however, need not be determined, in view of her failure to establish the other necessary element in her case. See Green v. Tarr, 207 Mass. 111, 92 N. E. 1003. In accordance with the report, entry must be:

Judgment for the defendants on the ver

dict.

(218 Mass. 597) DOOLEY V. SULLIVAN et al. (Supreme Judicial Court of Massachusetts. Berkshire. Oct. 23, 1914.)

1. MASTER AND SERVANT (8 872, New, vol. 16 Key-No. Series)-INJURY TO SERVANTDEFENSES WORKMEN'S COMPENSATION ACT.

In an action under the common law by a servant against his employer, who was not a subscriber to the Employés' Insurance Association established by St. 1911, c. 751, the defenses of contributory negligence, assumption of risk, and negligence of a fellow servant are not available to the defendant.

2. MASTER and Servant (§ 185*)—INJURY TO ❘ that the defendants so negligently managed SERVANT-MASTER'S LIABILITY - DELEGA- the work of tearing down the wall that it TION OF AUTHORITY.

Exceptions from Superior Court, Berkshire in the work where he suffered injury?" To County; John H. Hardy, Judge.

which question the jury answered, "Yes." Action by Richard F. Dooley against Wil- This question was properly submitted to the liam Sullivan and others. Verdict for plain- jury upon the evidence, and conclusively estiff, and defendants except. Exceptions over-tablishes the fact that the plaintiff was in ruled.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes