will was executed by the testator in the presence of the witnesses and before it was subscribed by them. The finding that his signature was not concealed from the witnesses at the time the will was attested and subscribed by them, was also warranted. Hall v. Hall, 17 Pick. 373, 375; Dewey v. Dewey, 1 Metc. 349, 35 Am. Dec. 367; Chase v. Kittredge, 11 Allen, 49, 87 Am. Dec. 687; Meads v. Earle, 205 Mass. 553, 91 N. E. 916, 29 L. R. A. (N. S.) 63. The conclusion which we have reached is not at variance with the case of Nunn v. Ehlert, supra, cited and relied on by the respondents, but is in conformity with the principles there stated; we think, in view of the findings of the single justice which were warranted by the evidence, that the will was attested and subscribed in accordance with the meaning of those terms as defined in the opinion in that case. Decree affirmed. CROSBY, J. [1] This is an action brought to recover a balance which the plaintiffs claim to be due upon a building contract, and presents the question, whether the removal from the cellar, of a ledge of rock which was not discovered until the cellar had been partly excavated, was required to be done by the plaintiffs under the specifications, which are a part of the contract. The specifications, so far as material to this question, provide as follows: "Excavations. "Remove all soil, earth and stones from an area about 64' 0" x 66' 0'' to a depth of 10'6" below top of present old underpinning, to form a basement. Also excavate trenches for drain to sewer in street, for a trench under piers and foundation walls; also for stairs and window areas; also for heater room and lavatories. Excavated yard about edifice to a depth of 4'-6" below top of present underpinning adjacent to new building. "Retain sufficient quantity of the loam and grade about new building 6" deep. "Remove all other excavations from the prem ises. "Level cellar bottom ready for concrete." It is to be noted, that the material to be excavated by the contractors is limited to "soil, earth and stones." These words as used in this contract do not include a ledge of solid 1. CONTRACTS 232(1)-CONSTRUCTION-EX- rock. The minute reference to "soil, earth CAVATING CONTRACTS "SOIL, EARTH, AND STONES." and stones," words which have a somewhat definite significance in common understanding, excludes the large mass or ridge of rock usually referred to as ledge. Under article VIIII of the contract, it is provided in part as follows: "The owner agrees to provide all labor and materials essential to the conduct of this work not included in this contract in such manner as not to delay its progress, and in the event of failure so to do, thereby causing loss to the contractors, agrees that it will reimburse the contractors for such loss." The removal of the ledge made necessary in excavating for the cellar, was a labor that the defendant was required to perform under article VIII. It is agreed by the parties that: [Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 1089-1091; Dec. Dig. 232(4). For other definitions, see Words and Phrases, First and Second Series, Alteration.] "The plaintiffs upon the discovery of the ledge 3. CONTRACTS 232(3)-IMPLIED CONTRACTS. called it to the attention of the architect and Where a contractor does work not within claim that he thereupon decided the work of exthe scope of his contract, and the owner knows cavating the ledge was not included in the conthat the work is being done, assents thereto, and tract. If the architect made the said decision, receives the benefits, although erroneously be- it is admitted that he communicated such delieving the work is covered by the contract, a cision to the plaintiffs and directed performcourt is warranted in finding that the con- ance of said work by the plaintiffs as an extra, tractor is entitled to recover for the work. but neither the architects nor the plaintiffs ever [Ed. Note. For other cases, communicated to the defendant or any one actsee Contracts, Cent. Dig. 88 10752, 1088, 1092; Dec. Dig.ing for it such decision of the architect that the ~~232(3).] excavation of the ledge was not included in the contract, or that the plaintiffs claimed extra Appeal from Superior Court, Suffolk Coun- compensation for such excavation of the ledge ty; Frederick Lawton, Judge. until the presentation of their bill after the completion of the work." Action by Thomas Howard and others against the Harvard Congregational Society. From a judgment for plaintiffs, defendant appeals. Affirmed. It is further agreed that whatever the architect did in the premises, he acted in good faith, and that no written order for the excavation of the ledge was given by him. The jury found in answer to questions sub Thos. C. Bachelder and Alpheus Sanford, both of Boston, for appellant. Carver & Car-mitted, that the plaintiff's did not have knowlver, of Boston, for appellees. edge of the existence of the ledge at the time For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes of the making of the contract; that they | tiffs, as required by article III. This article could have discovered its existence at that stipulates: time by a reasonable examination of the premises; and that the architect decided that the excavation of the ledge was an extra which the plaintiffs were not required by the contract to perform. It is also agreed: "That no alterations shall be made in the work except upon written order of the architect: by the contractors by virtue of such alterations the amount to be paid by the owner or allowed to be stated in such order." The removal of the ledge cannot be considered as an "alteration" in the work under "That at the time of the removal of the ledge, article III. This work was not originally the defendant had actual knowledge that the contemplated by the parties but is to be treatsame was being excavated by the plaintiffs, and ed as work wholly extra and entirely outalthough the members of the building committee of the defendant and the plaintiffs talked to-side the scope of the contract, and so article gether at various times during the excavation, III is not applicable to this claim of the nothing was said by either party to the other plaintiff's. Casey v. McFarlane Bros., 83 concerning the excavation being an extra to Conn. 442, 76 Atl. 515; Mahoney v. Hartthe contract." ford Investment Co., 82 Conn. 280, 73 Atl. 766. In view of the conclusion which we have reached as to the construction of the specifications relative to excavations, it follows that the architect was right in his determination, that the removal of the ledge was not a part of the work which the plaintiffs were required to perform. [3] If it be assumed that the defendant understood the work of removing the ledge was done by the plaintiffs under, and as part of, the contract, still it was bound as a matter of law to know the terms of the contract which it had entered into, and so is charged with knowledge that the plaintiff's were not required to excavate the ledge. Norcross v. Wyman, 187 Mass. 25, 72 N. E. 347. It is agreed that at the time the work was performed, the defendant had actual If the plaintiffs had been required, under the contract, to excavate for the cellar without reference to any particular kind of material that might appear under the surface of the earth in making the excavation, then the principle stated in Braney v. Inhabs. of Mill-knowledge that the plaintiff's had removed bury, 167 Mass. 16, 44 N. E. 1060, and in Stuart v. Cambridge, 125 Mass. 102, would apply. The clause in the specifications that the contractors "are to remove all other excavations from the premises" has no application | to excavating the ledge, but relates to the removal of materials that have already been excavated. [2] As the plaintiffs removed the ledge, and as it involved labor which the defendant was obliged to perform or to furnish, the question remains whether the plaintiffs are entitled to recover therefor. The defendant contends that it is not liable as no written order was given by the architect to the plain the ledge, and that it assented thereto, and has received the benefits accruing therefrom. From all these facts and the legitimate inferences therefrom, the judge of the superior court was warranted in finding that the plaintiff's were entitled to recover for the extra work of removing the ledge. Reid v. Miller, 205 Mass. 80, 91 N. E. 223; Beston v. Amadon, 172 Mass. 84, 51 N. E. 452; Westgate v. Munroe, 100 Mass. 227. In accordance with the terms of the report, judgment is to be entered for the plaintiffs in the sum of $1,306.87, with interest from December 29, 1911, together with the taxable costs. So ordered. (223 Mass. 568) trations, the refusal of a request substantially MCCARTHY v. BOSTON ELEVATED RY. covered by the charge is not error. CO. (two cases). (Supreme Judicial Court of Massachusetts. Middlesex. April 18, 1916.) 1. DAMAGES 49-PERSONAL INJURY-MENTAL SUFFERING. There can be no recovery for fright or mental distress, unaccompanied by some physical injury to the person from without. [Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 100, 255; Dec. Dig. 49.] [Ed. Note.-For other cases, see Trial, Cent. Dig. § 651; Dec. Dig. 260(1).] Exceptions from Superior Court, MiddleSex County; John H. Hardy, Judge. Actions on tort by Hannah T. McCarthy and by Michael J. McCarthy against the Boston Elevated Railway Company. Verdict for the plaintiff in each action, and defendant excepts. Exceptions overruled. 2. DAMAGES 185(1)-EVIDENCE-PHYSICAL Augustine J. Daly, of Boston, for plainINJURY. tiffs. Francis J. Carney, of Boston, for defendant. In an action for personal injuries to a street car passenger who was thrown from the seat by a rear-end collision, evidence held sufficient to warrant the jury in finding that the injuries received by plaintiff were not wholly mental, but were of a physical character, for which she was entitled to recover. CROSBY, J. The plaintiff in the first action, a passenger, seeks to recover for personal injuries, alleged to have been received in a collision of the defendant's cars. The [Ed. Note.-For other cases, see Damages, Cent. Dig. 88 503, 505, 508; Dec. Dig. second action is brought by the husband of 185(1).] the plaintiff in the first action, for consequential damages. 3. CARRIERS 318(1)-INJURIES TO PASSENGER-EVIDENCE-INFERENCES-CAUSE OF IN JURIES. Where a street car passenger was thrown from the seat by a rear-end collision, and shortly afterward bruises were found on her body, it is a reasonable inference that they were caused by the accident, and it could not be ruled that the cause thereof was speculative and conjectural. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1307, 1308; Dec. Dig. 318(1).] 4. TRIAL 252(1)—REQUESTED INSTRUCTIONS -APPLICABILITY TO ISSUES. The refusal of a requested instruction, inapplicable to any of the evidence, was not er ror. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 596, 612; Dec. Dig. 252(1).] 5. DAMAGES DAMAGES. 142-PLEADING GENERAL Under Rev. Laws, c. 173, § 130, authorizing the use of the forms of pleading previously used, and Pub. St. 1882, c. 167, § 94, providing that the ad damnum is a sufficient allegation of damage in all cases in which special damages are not claimed, an injured street car passenger can, under a general claim for damages, recover all damages which are the natural and necessary consequences of the defendant's negligence, including damages for physical and mental suffering based on permanent injuries. [Ed. Note.-For other cases, see Damages, Cent. Dig. § 413; Dec. Dig. 142.] 6. DAMAGES 142 - PERSONAL INJURIES [Ed. Note. For other cases, see Damages, Cent. Dig. § 413; Dec. Dig. 142.] 7. DAMAGES 185(2) — EVIDENCE - PERMANENT INJURIES. In action for injuries to a street car passenger thrown from the seat by a rear-end collision, evidence held sufficient to warrant the jury in finding that her injuries were perma nent. [Ed. Note. For other cases, see Damages, Cent. Dig. § 506; Dec. Dig. 185(2).] 8. TRIAL 260(1)—REQUESTED INSTRUCTIONS -REPETITION OF CHARGE. Where the court's instruction correctly stated the law applicable to the issues, with illus The female plaintiff will hereafter be referred to as the plaintiff. At the trial of these cases in the superior court, it was admitted that the collision was due to negligence on the part of the defendant and that the plaintiff was in the exercise of due care. [1] 1. It is undoubtedly true that there can be no recovery for personal injuries in cases of this kind, where the only result of the injury is fright or mental distress unaccompanied by some physical injury to the person from without. Spade v. Lynn & Boston R. R., 168 Mass. 285, 47 N. E. 88, 38 L. R. A. 512, 60 Am. St. Rep. 393; Cameron V. New Eng. Tel. & Tel. Co., 182 Mass. 310, 65 N. E. 385; Steverman v. Boston Elev. Ry., 205 Mass. 508, 91 N. E. 919; Conley v. United Drug Co., 218 Mass. 238, 105 N. E. 975, L. R. A. 1915D, 830; Megathlin v. Boston Elev. Ry., 220 Mass. 558, 108 N. E. 362. [2] The collision was caused by a car of the defendant running into the rear end of the car in which the plaintiff was riding. There was evidence that as a result of the collision all the passengers were thrown to the floor; that afterwards a man was seen putting the plaintiff back upon the seat of the car; that she was carried out of the car and to her home, and that she was in a condition of collapse and unable to walk; that on the day of the accident or the next day, the plaintiff's husband "saw a mark on his wife's right hip and right elbow that appeared to be a bruise." The physician who attended her on the day of the accident testified that when he first examined her he diagnosed her case as an injury to the back; "that he thought there was a little redness at the time" although there were no abrasions or black and blue spots. This evidence, if believed, would justify a finding that the injuries which the plaintiff received were not wholly mental but were also of a For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes physical character for which she was en- as special damages and so the defendant's titled to recover, together with the mental eighth request was properly refused. Millsuffering which arose out of such physical more v. Boston Elev. Ry., 198 Mass. 370, injuries. 84 N. EL 468; Sherlag v. Kelley, supra; Emery v. Lowell, 109 Mass. 197. [3] If a person meets with such an accldent as happened to the plaintiff, and shortly afterwards marks and bruises are found upon the body, we think it is a reasonable inference that such marks and bruises were caused by the accident and that it could not be ruled that the cause thereof was speculative or conjectural; accordingly the defendant's first, second, third and fourth requests could not have been given. [4] 2. There was evidence to show that before the accident the plaintiff was a strong, healthy, robust woman about 27 years of age. There was no evidence to show that she was "a person of peculiar sensitiveness," and therefore, the defendant's seventh request was not applicable. We do not mean to intimate that the ruling is sound. [5, 6] 3. The averment of damages in the declaration is general, and where there are averments that show a liability, this is sufficient unless special damages are sought to be recovered. As was said by this court in Sherlag v. Kelley, 200 Mass. 232 at page 236, 86 N. E. 293, 19 L. R. A. (N. S.) 633, 128 Am. St. Rep. 414: "The forms of pleading previously used in this commonwealth are authorized by the R. L. c. 173, § 130. In Pub. Sts. c. 167, § 94, under the forms of declarations in actions of tort is this language: The ad damnum is a sufficient allegation of damage in all cases in which special damages are not claimed.'" The declaration alleges that: "While a passenger as aforesaid she was injured by reason of the negligence of its [the defendants] servants and agents in operating, managing and controlling said car. Wherefore the plaintiff claims damage." Under this averment the plaintiff was entitled to recover for such damages as were the natural and necessary result of the defendant's negligence. Whatever may be the rule elsewhere, we think that in this commonwealth the jury were authorized to consider as elements of damage the physical and mental suffering of the plaintiff based upon permanent injury, if proved to be of that character. We do not think that a claim for permanent injury can be regarded [7] 4. The evidence shows that the plaintiff, since the accident, has suffered from hysteria which has continued down to the time of the trial; that as a result of her condition, she has been in a state of unconsciousness on different occasions, and has been confined to her bed most of the time. Her family physician who attended her testified that "he thought the future of the plaintiff as to ultimate recovery was very problematic; that he was led to that assumption because the woman had been sick for a year and a half; that she was in a miserable condition; stiffness in one leg; lack of sensation in the other; that she did not use both legs at all well and only in a limited way; that she had a paralyzthat she was nervous and he might say a physied arm and stiffness and inability to use it; cal wreck * that he would not want to predict about her future recovery but he thought she never would be the woman she was before, but that he could not absolutely say that she had any organic disease but the trouble had lasted so long that there must be some profound change in her nervous organism some profound change of which I do not know anything, and yet it seems it is something that we do not think she is going to recover from." There was other medical testimony to the effect that in some cases of hysteria the persons so suffering became chronic invalids and that it could not be determined when, if ever, the plaintiff would recover. On the other hand, there was evidence that the plaintiff's disease was wholly mental and that she was not suffering from any permanent injury. Upon this conflicting evidence the jury could have found that the plaintiff's injury was permanent and that damages might be assessed accordingly. [8] 5. The defendant's twelfth and thirteenth requests were substantially covered by the charge. The instructions given by the presiding judge correctly stated the principles of law applicable to the issues presented which were elucidated by apt illustrations. As we are unable to discover any error in the conduct of the trial, in each case the entry must be Exceptions overruled. (223 Mass. 485) LEAD LINED IRON PIPE CO. v. INHAB- 1. TOWNS 27-OFFICERS-SUPERINTENDENT Wakefield. Verdict directed for defendant, and plaintiff excepts. Exceptions overruled. John J. Butler, of Boston, for plaintiff. M. E. S. Clemons, Town Counsel, of Boston, for defendant. PIERCE, J. These are two actions of tort depending upon the same state of facts, to recover for the flooding of the plaintiff's premises with water. Under Rev. Laws, c. 25, § 85, requiring the selectmen, in default of town action, to appoint a superintendent of streets who shall perform the duties and be subject to the liabilities of surveyors of highways, a vote of the town instructing the selectmen to employ a competent The material facts, as they appear in the engineer as superintendent of streets, if not bill of exceptions, are as follows: A natural merely advisory, was void and did not make the watercourse traverses and drains the plainsuperintendent a town agent instead of a pub-tiff's premises. It has its source in a spring lic officer. [Ed. Note.-For other cases, see Towns, Cent. Díg. § 42; Dec. Dig. 27.] 2. TOWNS 45- DRAINS-LIABILITY-OFFICERS-SURVEYOR OF HIGHWAYS. A surveyor of highways is a public officer, and not a town agent, so that the town is not liable for his acts. [Ed. Note. For other cases, see Towns, Cent. Dig. 88 79, 80; Dec. Dig. 45.] on private land, flows in an easterly direction, runs along the northerly boundary of the plaintiff's premises; thence through a culvert under North avenue, a public way; thence through land bought by the defendant March 11, 1913, for school purposes; thence under Main street, a public way; thence through an open, walled ditch to Richardson avenue, a public way; thence along land of a branch of the Boston & Maine Railroad A natural brook arising in a spring on through an open concrete ditch, through an private land and flowing thence across private upright wooden grating into a closed culvert; and school lands in open courses or concrete open ditches and under streets, through culverts, thence through private land to the Saugus and into which the town had established sur-river. face drainage from various streets, all within the watershed of the brook, is not a "main drain" within the meaning of Pub. St. 1882, c. 50, §§ 1-19 and its amendments, for the maintenance of which the town was liable. 3. HIGHWAYS 120(1) - LIABILITY-"MAIN DRAIN"-NATURAL BROOK. [Ed. Note. For other cases, see Highways, Cent. Dig. §§ 374, 375; Dec. Dig. 120(1).] 4. HIGHWAYS 120(2) - DRAINS-LIABILITY -EVIDENCE-CAUSE OF INJURY. In an action against a town for damage to plaintiff's premises caused by the flooding of a brook above a culvert under a street, evidence held to show that the obstruction of the water in the culvert was caused by rubbish accumulating against a capstone of the culvert which had become dislodged, and not by rubbish which collected against a gas pipe owned by the town which crossed the culvert. [Ed. Note.-For other cases, see Highways, Cent. Dig. § 376; Dec. Dig. 120(2).] 5. TOWNS 45- LIABILITY - ACT OF OFFICERS. Negligence by a town superintendent of streets in failing to discover that a capstone had fallen into a culvert, or in failing to remove it, or in not keeping water flowing through it reasonably free of rubbish, was negligence of the surveyor of a highway in his individual capacity, and not as agent of the town. [Ed. Note.-For other cases, see Towns, Cent. Dig. 79, 80; Dec. Dig. 45.] 6. TOWNS 45–LIABILITY—ACTS OF OFFICER-DIRECTIONS BY SELECTMEN. The fact that the selectmen gave general directions as to the expenditure of money intrusted to the superintendent of streets does not make the town liable for the superintendent's acts or defaults while performing the acts required of him by law. [Ed. Note.-For other cases, see Towns, Cent. Dig. §§ 79, 80; Dec. Dig. 45.] The town, from time to time, established surface drainage in the various streets, all within the water shed of the brook, and emptied the surface drainage into the brook through pipes and otherwise, both above and below the plaintiff's premises. The town appropriates the money for this purpose and the superintendent of streets does the work under the instruction of the selectmen. The town did not authorize the election in 1912, 1913 and 1914 of road commissioners, or surveyor of highways, but voted in March, 1912: "That the Board of Selectmen be instructed to employ a competent engineer who shall be a practical road builder, as superintendent of streets." The selectmen appointed a superintendent of streets in June, 1912. There was a superintendent of streets appointed by the selectmen in the years that followed, though there was no evidence of any subsequent vote of the town in reference thereto. [1, 2] The plaintiff claims, that the superintendent in the defendant town was an agent of the town and not a public officer, because of the vote of the town above quoted. The answer to this argument is that the selectmen are required in default of town action, to appoint a superintendent of streets by R. L. c. 25, § 85, who shall have the powers, perform the duties and be subject to the liabilities and penalties of surveyors of highways. Prince v. Lynn, 149 Mass. 193, 21 N. E. 296. The vote of the town if more than Exceptions from Superior Court, Middlesex advisory was void. That a surveyor of County; John F. Brown, Judge. Two actions of tort by the Lead Lined Iron Pipe Company against the inhabitants of highways is a public officer and not a town For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |