looked at as it presented itself to the plain-awarded, the award affirmed by the superitiff at the time. In the first place the plain- or court, and the insurer appeals. Case retiff had asked Mr. Glazier to ask Wheelock committed to the Industrial Accident Board. if his customer's name was Powers and it Stanley E. Qua, of Lowell, for petitioner. had been told by Glazier that Wheelock Sawyer, Hardy, Stone & Morrison, of Bossaid that his customer's name was not Pow-ton (Gay Gleason and Paul L. Keenan, both ers. The plaintiff also had been told by of Boston, of counsel), for insurer. Glazier that Wheelock's customer had instructed him (Wheelock) not to disclose his name. It cannot be said under these circumstances that as matter of law the plaintiff did not make the investigation it ought to have made in that it did not call on Moody or Wheelock or both and ask them who Wheelock's customer was. The terms of the sale actually made to Moody differed in minor details from those contained in the offer made to Moody through the plaintiff. The two were in substance the same. No argument in this connection has been made by the defendants. For that reason it is not necessary to go into the matter further. We have found nothing in the cases cited by the defendants which requires notice. Exceptions overruled. (230 Mass. 326) HALLETT'S CASE. (Supreme Judicial Court of Massachusetts. Suffolk. May 28, 1918.) CARROLL, J. The deceased employé, on August 18, 1917, when returning from lunch, fell, while ascending a flight of granite steps on her employer's premises, and received injuries which caused her death. Her husband, who is the petitioner, testified: "She had a grip about 14 inches long and 10 inches high in the left hand, and in the right hand a regular grip, a Gladstone bag, about a sweater on her arm. 18 inches long and about a foot high. She had The bags had things in them." The steps in question were five in number; they were 8 inches high and 12 inches wide, except the bottom step which was 9 inches high, and the top step was 25 inches wide, including a 3-inch threshold, which was raised one-sixteenth of an inch above the step. It was agreed that the steps were in good condition. There was evidence that the employé was on the top step when she fell forward into the employer's store. From the testimony of two of the witnesses who were present, it might be found that she did not trip on the threshold or the step, but fell some unexplained cause. One witness testified he was under the impression that she caught her foot on the outer edge of the top step. 1. MASTER AND SERVANT 403-WORKMEN'S from COMPENSATION ACT-INJURY IN COURSE OF EMPLOYMENT-BURDEN OF PROOF. Under the Workmen's Compensation Act (St. 1911, c. 751), the burden is on claimant to show that injury arose out of or was caused by the employment. 2. MASTER AND Servant 373-WORKMEN'S COMPENSATION ACT MENT. INJURY IN EMPLOY If the employé, injured by a fall on her employer's stairway, tripped and fell, not on account of her employment, but on account of her physical or mental condition, or her exertions in her own affairs, or any cause other than the employment, her dependent cannot recover compensation for her death. 3. MASTER AND SERVANT 417(9)-WORKMEN'S COMPENSATION ACT CAUSE OF ACCIDENT-ABSENCE OF FINDING. In a dependent husband's proceeding under the Workmen's Compensation Act for death of his wife from a fall on her employer's stairway, where it does not appear that the Industrial Accident Board passed on the question of the cause of the injury, whether the employ; ment, or the employé's own physical or mental condition, her exertions, the weight she was carrying for herself, etc., the case must be recommitted to the board to find the cause of the fall, or, if unknown, so to state. [1] To recover under the Workmen's Compensation Act for an injury resulting from a fall, it must be shown that it arose out of the employment. If it resulted from other causes, the statute does not apply. A fall on the floor or on a flight of stairs or on any part of the employer's premises while occupied in his own affairs, if not explained, does not entitle the employé to compensation. Under the act the burden is upon him to show that it arose out of or was caused by the employment. If any employé falls from over-exertion while engaged in his own business and not engaged in the business of his employer, or if a woman, carrying in each hand a traveling bag filled with personal luggage and not engaged in the employer's business, in ascending a flight of steps trips on her dress because unable to hold it up, or falls because of the weight she is carrying, it cannot be said that the employment caused Appeal from Superior Court, Suffolk the injury. Although an employé falling unCounty. der a heavy weight, even if he falls on a Proceeding under the Workmen's Com- smooth floor free from any defect, may be pensation Act by John Lawrence Hallett, for found to have been injured by the employcompensation for death of his wife, Gertrude ment if he is engaged in it at the time, an O. Hallett, the employé, opposed by the S. K. employé doing his own individual work unDexter Company, the employer, and the Em- der similar conditions, cannot attribute a ployers' Liability Assurance Corporation, fall to the employment. In every case, unLimited, the insurer. Compensation was der the act, there must be the relation of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 119 N.E.-43 cause and effect between the employment and | 3. SALES 261(3)—SALE OF COD LIVER OILthe injury. See McNicol's Case, 215 Mass. 497, 102 N. E. 697, L. R. A. 1916A, 306; Maggelet's Case, 228 Mass. 57, 116 N. E. 972. TERRITORIAL WARRANTY "PROVINCIAL." medicinal cod liver oil, contracted to be sold, Where cold pressed provincial oil and pure were known to the trade and in the market as mercantile provincial or domestic oil made from the fresh livers of the cod and kindred fish, such as pollock, hake, and haddock, as distinoil, extracted from the liver of the cod, known respectively as first and second class oils, the word "provincial" never became a territorial warranty but was merely descriptive of the class of oil, and had the same commercial signification as the word "domestic." [2] If Mrs. Hallett did not strike her foot against the top step or the threshold, but because of the baggage she was carrying be-guished from Norwegian oil and Newfoundland came weak or tired, and fell, or if she fainted or caught her foot in her clothing or fell from some unexplained cause, the claimant is not entitled to compensation. Even if she tripped on the step or the threshold, if this was caused by her own condition and not by the employment the insurer is not liable. Stated in another way, if Mrs. Hallett tripped and fell, and this did not arise out of her employment, but was caused by her physical or mental condition, or was brought about by her exertions in her own affairs or by any cause other than the employment, the dependent husband cannot be awarded compensation. [3] The expert evidence that the deceased did not die from any internal cause, does not show that her injury resulted from her employment. It does not appear that the board passed on the question of the cause of her injury. They found that the employé fell forward over the threshold, and that the danger of falling was incidental to her employment; but they did not find the cause of the injury, nor is it stated that the cause is unknown. The report does not show the approximate weight of the bags and their contents, how far they had been carried, the condition of the weather on the day of the employé's death, the length of time she was away from the employment, or what she did in the interval. Findings on these questions may have some bearing on the issue to be decided. It follows that the case must be recommitted to the Industrial Accident Board to find the cause of Mrs. Hallett's fall; if the cause is found to be unknown, so to state; and if the cause is known, to find what that cause was. At such hearing further evidence may be introduced by both parties. So ordered. [230 Mass. 262) LEONARD et al. v. CARLETON & (Supreme Judicial Court of Massachusetts. 1. SALES 261(3)-WARRANTY. The terms "cold pressed provincial medicine oil," and "pure medicinal cod liver oil," used in contracts for the sale of such oil, being descriptive of the kind and quality, were words of warranty. 2. SALES 343, 344-REMEDIES OF SELLER -BUYER'S REFUSAL. If oil delivered to the buyer conformed to the terms of the contracts of sale, the title, as between the parties, passed to the buyer, and its refusal of performance entitled 'the sellers to the price. Exceptions from Superior Court, Middlesex County; James H. Sisk, Judge. Action of contract by George H. Leonard and others against the Carleton & Hovey Company, to recover for certain lots of oil sold defendant. Finding for plaintiffs, and defendant excepts. Exceptions overruled. Defendant was the manufacturer of a patent medicine and plaintiff in contracts referred to in the opinion agreed to furnish a certain quantity of "cold pressed provincial medicine oil," and also certain quantities of "pure medicinal cod liver oil." It was alleged that the oil was furnished in quantities and quality as agreed. twenty-second request asked the court to rule that it was under no obligation to take or pay for oil which was not merchantable under the description of "medicinal cod liver oil." In its twenty-fifth request the court was asked to rule that defendant was under Defendant in its no obligation to receive or pay for any oil of which dog fish liver oil formed a constituent part, and in its twenty-seventh request it asked the court to rule that defendant was under no obligation to receive or pay for any oil which by reason of defects in pressing, packing or storing was not fairly merchantable as pure medicinal cod liver oil. These requests the court gave. R. G. Dodge and F. W. Johnson, both of Boston, for plaintiffs. Whipple, Sears & Ogden, of Boston (Hugh W. Ogden, Wm. R. Sears, and Arthur M. Boal, all of Boston, of counsel), for defendant. BRALEY, J. [1-3] If the plaintiffs can recover, the defendant does not question the amount, nor the computation of damages as awarded by the trial court. But it contends that its liability has not been established. The terms used in the third and fourth contracts of sale over which the principal controversy has arisen, namely, "cold pressed provincial medicine oil" and "pure medicinal cod liver oil" being descriptive of the kind and quality, undoubtedly are words of warranty. Fullam v. Wright & Colton Wire Cloth Co., 196 Mass. 474, 82 N. E. 711. And the question for decision is whether the oil delivered corresponded to the warranty. It appears that while they did not carry the refined oil in stock, the presiding judge who tried the case For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (230 Mass. 171) MORRISSEY v. BOSTON & M. R. R. (Supreme Judicial Court of Massachusetts. 330 (3)-INJURIES ΤΟ CONTRACTOR'S SERVANT-NEGLIGENCE-SUFFICIENCY OF EVIDENCE. of a company engaged in putting up the steel without a jury could find, that after submit- which would prevent recovery, furnishes no ting a sample of the crude oil to the defend- ground of exception, and all the material and ant, and upon its acceptance, the plaintiffs essential findings having been warranted for procured from producers at various places reasons sufficiently stated, the judge after along the Atlantic Coast crude oil as the judge | giving the defendant's twenty-second, twentyfurther has found of the same kind as the fifth, and twenty-seventh requests, rightly desample, which having been pressed or refined clined to give the remaining requests, which was delivered, or stored in barrels at their had become inappropriate under the conplace of business properly marked for identifi- clusion he had reached on the evidence. The cation, and ready for shipment. If the oil giving of the plaintiff's first request and the conformed to the terms of the contracts the eleventh request as modified to which the detitle as between the parties accordingly pass- fendant also excepted are disposed of by ed, and the defendant's refusal of perform- what has been said, and finding no error in ance would entitle the plaintiffs to the pur- the rulings to the admission of evidence, the chase price. Barrie v. Quinby, 206 Mass. 259, exceptions should be overruled. 266, 92 N. E. 451, and cases cited; Cavanaugh So ordered. v. D. W. Ranlet Co., 118 N. E. 650. But as the defendant was under no obligation to take and pay for inferior or adulterated oil, it asked the judge to rule, that "if he finds upon all the evidence that the plaintiffs sold the oil in question to the defendant, there is evidence to show that said oil was not pure medicinal cod liver oil, but was adulterated with 1. MASTER AND SERVANT oil from livers of the dog fish." The judge however upon finding that "the plaintiffs sold the oil in question to the defendant," also found "that the oil was pure medicinal cod liver oil of the third class heretofore designated, and complied with the contracts," and the oil shipped as well as that which had been set apart "was not adulterated by any foreign oil." If these findings stand, it is plain that the defendant has no ground for recoupment, or any defense to the plaintiffs' claim. The question of compliance with the warranty, which includes the issue of alleged adulteration, was one of fact dependent upon not only voluminous, but conflicting, evidence. It is not necessary to review it in detail. The credibility of the witnesses and the weight to be given their testimony were for the trial court whose conclusions if warranted, are final. The auditor's report, apart from the other evidence, is sufficient to sustain the initial finding, that under the third classification, cold pressed provincial oil and pure medicinal cod liver oil are known to the trade, and in the market as merchantable provincial, or domestic oil made from the fresh livers of the cod, and kindred fish such as pollock, hake and haddock, as distinguished from Norwegian oil and Newfoundland oil extracted from the liver of the cod, which are known respectively as first and second class oils. The word "provincial" therefore never became a territorial warranty as the defendant contends. It is merely descriptive of the class of oil, and has the same commercial signification as the word "domestic." It also fully justified the judge in saying, that no oil obtained from the livers of dog fish had ever been mingled with the oil in question. Actions by John J. Morrissey against the The court's refusal to make certain findings Boston & Maine Railroad, and against Albert of fact as requested by the defendant, and W. Pike and others, resulting in directed ver The employé of a company which had the contract to erect the steel framework for a railroad's building, in using a ladder to the roof placed by employés of the company doing masonry and carpenter work, as to such company was merely a licensee; it not having given him any invitation. 3. NEGLIGENCE 134(5)—INJURIES to ServANT OF COCONTRACTOR-EVIDENCE. In personal injury action against company doing the masonry and carpenter work on railroad's building by employé of the contractor to erect the steel framework, evidence held not to warrant finding of defendant's negligence. 4. NEGLIGENCE 44-INJURIES TO SERVANT OF COCONTRACTOR-BUILDING. ordered to ascend to the roof of a building unAn experienced structural iron worker, der construction to get spikes, under the obvious conditions surrounding him, including the lying flat, while others were standing, was not fact that some of the wooden roof purlins were entitled to assume that the one he took hold of was fastened, and so safe; the danger of injury from such a cause being one as to which the company doing masonry and carpenter work in the erection of the building owed him no duty. 5. NEGLIGENCE 47-INJURIES TO SERVANT OF COCONTRACTOR-TRAP. The condition of the purlins, in view of the TO ARGUE EXCEPTIONS-WAIVER. waived. Report from Superior Court, Suffolk County; Wm. F. Dana, Judge. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexa CROSBY, J. These are two actions of tort, tried together, to recover for personal injuries received by the plaintiff by falling from a building in process of construction on land of the first named defendant. At the close of the evidence for the plaintiff, the presiding judge directed a verdict for the defendant in each case and reported the cases to this court with a stipulation as to damages. The first named defendant entered into written contracts with different contractors for the erection of the building; the contract for the steel framework was made with McClintic-Marshall Company, by whom the plaintiff was employed; and the contract for the masonry and carpenter work was made with the defendants in the second action, William N. Pike & Sons (hereinafter called Pike & Sons). The building was about two hundred feet long and above one hundred and fifty feet wide, and lengthwise ran approximately north and south; the walls were of brick on a concrete foundation and were about twenty feet in height; the frame of the building consisted of seventy-five-foot steel girders, which rested on the outer and inner brick walls and upon steel columns and ran across the building about thirty feet apart; length wise of the building and bearing upon the girders were trusses, or steel beams called struts; on the struts were steel angle irons, to which were bolted wooden purlins or rafters extending crosswise, and upon which the roof boards were nailed; a brick wall running north and south through the center divided the building into two sections-that on the east side was known as the car machine shop and that on the west the car blacksmith shop. The steel framework had been erected by McClintic-Marshall Company several days before the accident which caused the plaintiff's injuries, and the roof on the westerly half of the building had been completed by Pike & Sons; but the easterly half of the building had been only partially finished by the company and the roof had not been built; the ends of the steel struts had been set in mortar into the brick wall of the south end, and rested on steel plates. to remove the bolts which fastened the purlins to the steel work; there was evidence that these bolts were removed before the ac cident but that previously the purlins had been bolted to the trusses; there also was evidence that it was not necessary to remove the bolts to straighten the truss. On the day of the accident the plaintiff and some other workmen under the direction of one Houston, foreman for the McClinticMarshall Company, came to the building to straighten the truss. When they arrived they found a mason's ladder which had been placed by employés of Pike & Sons on the east side of the junction of the strut and truss, at the place where the truss was bent and on its southerly side. The plaintiff and one Coppernath went up the ladder and fastened a guy wire around the top of the truss at the point of the bend and fastened the guy to clamps; then, went down the ladder and attached the guy to the railroad track, under the direction of Houston; while so engaged the guy wire began to slip, and Houston inquired of one Caswell, a steel inspector for the railroad company, where they could get some spikes to nail a plank to the ties to prevent the guy from slipping, and Caswell replied, "There is lots of them up on the roof." Houston then ordered the plaintiff to go up on the roof and get the spikes. The latter testified that he went up the ladder and after getting the spikes came back to go down the ladder and walked along a strut; that he saw a purlin standing on edge, the bottom of which was about twenty-four inches above the top of the ladder; that he saw the bolt head on the wood side; "that he put his two hands on the purlins to step on the ladder; that when he took his feet off the I-beam truss to step on the ladder it [the purlin] turned down on him and threw him out of his balance to the ground." The plaintiff contends that the purlin which he took hold of to steady himself was on end, close to the steel column, and that the bolt was left in it; and that for these reasons he was led to believe that it was bolted in place, that it was safe for him to take hold of it, and that it was negligence on the part of the defendants to leave it in that position under the circumstances. [1] We will first consider the case against the railroad company. There is no evidence that this defendant had anything whatever to do with the erection of the building, other than to supervise the construction for the purpose of seeing that the work was done in conformity with the contract and in accordance with the drawings and specifications; the contract provided that the work should be done under the direction and control and to the satisfaction of the chief engineer of the railroad, whose decision as to the true Sometime before April 21, 1913 (the date of the accident), one Coffin, an assistant engineer and inspector for the railroad company, noticed that the truss at the south end of the car machine shop was out of alignment; and the chief engineer of the McClintic-Marshall construction and meaning of the drawings Company was notified to straighten it. Coffin also ordered Pike & Sons to remove the brick work around the ends of the struts so that the truss could be pulled into place, and and specifications should be final. The work of straightening the truss was not being done by the railroad company and it had no control or direction as to the manner of its per. formance; the only connection the company was temporary and transitory, which the dehad with that work was to see that it, in common with all other construction, was performed in accordance with the terms of the contract. The reply made by Caswell, the defendant's inspector, in reply to the inquiry made by Houston, the McClintic-Marshall Company's foreman, as to where spikes could be obtained, had no tendency to show that the railroad company was in any way engaged in the work being done when the plaintiff was hurt. It follows that there was no evidence that the defendant railroad failed in any duty which it owed to the plaintiff or that his injuries were due to its negligence. [2] While the ladder was placed where it was found, by employés of Pike & Sons, the evidence would not warrant a finding that | the plaintiff was invited to use it; there were other ways of reaching the roof, and there is nothing to show that the ladder was placed there for the use of the employés of McClintic-Marshall Company. Accordingly the plaintiff did not use it by invitation of Pike & Sons; but in using the ladder, as to that company he was merely a licensee. Blackstone v. Chelmsford Foundry Co., 170 Mass. 321, 49 N. E. 635; Cole v. Willcutt & Sons Co., 214 Mass. 453, 101 N. E. 995. [3] Nor was the evidence that the purlin was unbolted and stood on end close to the steel column with the bolt left in it evidence of negligence of Pike & Sons. The building was in process of construction and in an unfinished state, the plaintiff testified, and there was other evidence, that at the time of the accident in different parts of the building some of the purlins were standing up as they would be when bolted in position, while others were lying flat on the struts, some of which he walked over in passing along between the ground and the roof. In view of these obvious conditions, even if the plaintiff knew that previously all the purlins had been bolted to the steel work, still a finding of negligence on the part of Pike & Sons would not have been warranted. fendant ought not reasonably to be held to have anticipated and guarded against. Noonan v. Foley, 217 Mass. 566, 105 N. E. 558, L. R. A. 1915F, 1036; Coyne v. Byrne, 214 Mass. 221, 100 N. E. 650; Gainey v. Peabody, 213 Mass. 229, 100 N. E. 336; Gillette v. General Electric Co., 187 Mass. 1, 72 N. E. 255; Kanz v. Page, 168 Mass. 217, 46 N. E. 620; Whittaker v. Bent, 167 Mass. 588, 46 N. E. 121. [5] We cannot agree with the plaintiff's contention that the condition of the purlin was in the nature of a trap. The case at bar is plainly distinguishable from Riley v. Lissner, 160 Mass. 330, 35 N. E. 1130, and Galli v. Drapeau, 216 Mass. 144, 103 N. E. 304, but is governed by Young v. Miller, 167 Mass. 224, 45 N. E. 628; Beique v. Hosmer, 169 Mass. 541, 48 N. E. 338; Boisvert v. Ward, 199 Mass. 594, 85 N. E. 849; Murdock v. Paine Furniture Co., 211 Mass. 97, 97 N. E. 617; Gainey v. Peabody, supra. [6] As we are of opinion that there was no evidence to warrant a finding of negligence on the part of either defendant, we need not consider the conduct of the plaintiff. The exceptions which have not been argued are treated as waived; the others, for the reasons above stated, are overruled. In accordance with the terms of the report, the entry in each case must be: Verdict to stand. (230 Mass. 366) HARRINGTON v. COUSINS et al. tate's daughter to recover money received and Exceptions from Superior Court, Suffolk County; Joseph F. Quinn, Judge. Action by Everett W. Harrington, administrator of the estate of Sarah L. Harrington, against Lillian M. Cousins and another as trustee. Verdict was directed for defend ant, and plaintiff excepts. Exceptions over ruled. The evidence bearing on the weakening of [4] The plaintiff was an experienced structural iron worker; he knew that it was necessary while working in a place high above the ground to be careful; he testified that while acting as foreman for the Boston Elevated Railway Company he had cautioned men working under him in high places to look out and be careful. Under the obvious conditions which surrounded him, including the fact that some of the purlins were lying flat, the mental capacity of plaintiff's intestate while others were standing, the plaintiff was not entitled to assume that the one he took hold of was fastened; the danger of injury from such a cause was one of the risks of the work in which he was engaged, and as to which the defendant owes him no duty. The risk of injury was not due to a permanently unsafe condition of the building, but was as follows: Plaintiff testified that his mother was never she came here from Minneapolis in the year a very strong person, but was not sickly; that 1909 or 1910, and he noticed in that year that his mother had begun to fail mentally; that his said mother, at the time of her death, was 82 years old; that in 1909 he observed her poor memory; that in May, 1912, she came on from Minneapolis, "went directly to her sister's in For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |