8. MASTER AND SERVANT 278(16) INJU-ant is a Massachusetts corporation, and at RIES TO SERVANT-NEGLIGENCE OF MASTER- the time of the accident the battleship was FAILURE TO INSPECT. Evidence that a vessel's boilers were not in its charge and control. The plaintiff's ininspected the day of the accident or the day testate was employed as a coal passer on the previous, and that such inspection would have ship, and was working in that capacity at disclosed their defective condition, justifies the the time of the accident. jury in finding that the failure to inspect was negligence on the master's part.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 968; Dec. Dig. 278(16).]

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 8 408; Dec. Dig. 185(20).1

Report from Superior Court, Norfolk County; John F. Brown, Judge.

Action of tort by Jane Souden, as administratrix, against the Fore River Shipbuilding Company. On report of the presiding judge of the superior court after directed verdict for defendant. Judgment entered for plaintiff.

[1] 1. It is settled that in case of a death occurring upon the high seas, an action may be maintained to enforce a remedy given by the state where the vessel is owned, and as the intestate was killed while on the high seas in a vessel belonging to a Massachusetts corporation, it was within the territorial jurisdiction of Massachusetts, and the rights of the parties are to be determined by the common law and the statutes of this commonwealth. The Hamilton, 207 U. S. 398, 28 Sup. Ct. 133, 52 L. Ed. 264; La Bourgogne, 210 Ū. S. 95, 28 Sup. Ct. 664, 52 L. Ed. 973.

2. Upon the evidence the jury would have been warranted in finding that the plaintiff's intestate was in the exercise of due care. He was 17 years of age and apparently his only work consisted in carrying and shoveling coal. We do not understand that the defendant contends that he was lacking in due care.

[2-4] 3. The accident was due to an explosion of a tube or tubes in one of the boilers of the ship in the fire room where the intesRomney Spring, Paul R. Blackmur, and tate was working, by reason of which he was Wm. G. Thompson, all of Boston, for plain- burned and scalded and died from his injutiff. John Lowell, James A. Lowell, and W.ries the following day. There is no evidence D. Sohier, Jr., all of Boston, for defendant.

to show that he knew or could have known of the condition of the tubes or appreciated the risk of an explosion, and therefore, it could not have been ruled that he assumed the risk. Fitzgerald v. Conn. River Paper Co.. 155 Mass. 155, 29 N. E. 464, 31 Am. St. Rep.

CROSBY, J. This is an action of tort, brought to recover for the conscious suffering and death of the plaintiff's intestate, who, while in the defendant's employ on November 5, 1909, received an injury which result-537; Ruddy v. Geo. F. Blake Mfg. Co., 205 ed in his death on the following day.

The declaration contains seven counts.

The first, fifth and sixth are based upon the common law, and the second, third, fourth and seventh are under the Employers' Liability Act (Rev. Laws, c. 106, § 71). The third count is to recover for the death of the plaintiff's intestate, and alleges a defect in the condition of the ways, works, and ma

chinery of the defendant, in conformity with the Employers' Liability Act. It is agreed that a sufficient notice under the act was

served by the plaintiff upon the defendant. The presiding judge of the superior court ruled that the plaintiff could not recover and directed the jury to return a verdict for the defendant and reported the case to this court, the parties stipulating that:

"If that ruling is right, the judgment for the defendant stands. If it is wrong, it is agreed that judgment for $4,000 be entered for the plaintiff."

Mass. 172, 91 N. E. 310. There was no evi

dence to show that the defective conditions existed before he entered upon his employment, and so there was not a contractual assumption of the risk; and as to defects which ed that he assumed them; besides it is to arose afterwards, it could not have been rulbe noted, that the defense that the intes

tate assumed the risk, has not been pleaded.

Leary v. Wm. G. Webber Co., 210 Mass. 68,

96 N. E. 136.

is whether there was any evidence from [5] 4. The question left for determination which it could have been found that the deDakota had been constructed by the defendfendant was negligent. The battleship North ant for the government of the United States, and was engaged in a trial trip at the time of the explosion. There was evidence that the ship had been in or near Rockland Harbor for several days before the accident, and The accident which resulted in the death on that morning had made some runs before of the intestate, occurred on board the bat- her speed test trip began. She was provided tleship North Dakota on her trial trip, while with four main feed pumps and four auxiliashe was engaged in a speed test from Rock-ry feed pumps for supplying water to the boilland, Me., in the direction of Provincetown, ers. There was evidence to show that some upon the high seas after she had reached the of the main feed pumps were in a defective waters of Massachusetts Bay. The defend- condition on the day of the accident and

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

also on the day before it occurred, and that they did not furnish sufficient water for the boilers; that one or two of them broke down before the trial trip began; "that within two hours previous to the accident the main feed pumps upon which the supply of water to the boilers depends were very erratic in their action; that at several times during this period two of them were not functioning, that the action of the pumps was so erratic and unstable that they were reported against; that two of the main feed pumps could not possibly furnish the water for a full speed trial because they had not the capacity, that two pumps broke down during the speed trial."

which it was designed is of itself evidence of a defective condition. Cleary v. Cavanaugh, 219 Mass. 281, 106 N. E. 998; Sullivan v. Reed Foundry Co., 207 Mass. 280, 93 N. E. 576; Minihan v. Boston Elev. Ry., 197 Mass. 367, 83 N. E. 871. While the plaintiff was bound to offer evidence to show that the explosion was caused by the defendant's negligence, he was not required to point out the particular act or omission which caused the accident. Ryan v. Fall River Iron Works, 200 Mass. 188, 86 N. E. 310; Byrne v. Boston Woven Hose Co., 191 Mass. 40, 77 N. E. 696; Melvin v. Penn. Steel Co., 180 Mass. 196, 202, 62 N. E. 379. There was evidence to show that no inspection of the boiler tubes had been made either on the day of the accident or on the preceding day, although it could have been found that such inspection should have been made, and if made, would have readily disclosed the defective and dangerous condition of the tubes. We are of opinion that the jury could have found that such failure to inspect amounted to negligence on the part of the defendant. If the duty of inspection rested upon those who were fellow servants of the plaintiff's intestate and they failed to perform that duty, still the defendant is responsible because proper inspection is an obligation which cannot be delegated to a servant so as wholly to excuse the master. Moynihan v. Hills Co., 146 Mass. 586, 16 N. E. 574, 4 Am. St. Rep. 348; Erickson v. Am. Steel & Wire Co., 193 Mass. 119, 78 N. E. 761; White v. Newborg, 208 Mass. 279, 94 N. E. 269. In view It appeared in evidence that the ship was of what has been said, it is unnecessary to equipped with an oil fuel system, by means consider all the issues raised by the report. of which oil was sprayed in the form of a We are of opinion that it could not propercone into the furnace, for the purpose of in-ly have been ruled that there was no evitensifying the heat made by coal fires under dence to warrant a finding that the defendthe boilers; that the boiler tube which ex-ant was negligent, but that this question was ploded was directly in line with the oil for the jury to determine as a matter of sprayer; that the place where this tube fact. burst was subject to an undue and excessive heat and that such heat might cause the

It could have been found that the defendant's officers and agents in control of the ship knew, or in the exercise of reasonable care would have known, of the defective condition of the pumps. There was also evidence that about twenty minutes after the explosion the boiler gauge glasses in the fire room where the explosion occurred did not show any water in three of the boilers; that if the pumps failed to supply an adequate amount of water to the boiler tubes, it would cause the tubes to burn and blow out. This evidence, if believed, would justify the jury in finding that the explosion was due to a defective condition of the pumps, and was wholly independent of any negligence of the water tender, who was a fellow servant of the intestate, in failing to keep a sufficient supply of water in the boil

ers.

tube to burst. There was also evidence to show that the fuel oil system was not completed at the time the ship left for her trial trip, and that the system had not been properly tested before being put into actual operation. There was expert testimony to the effect that the explosion was due "either to low water in the boiler, or to the action of the oil fuel in not spraying properly from the nozzle, and impinging at that particular point on the tube, causing overheating, bulging and rupture."

In view of this evidence, the cause of the explosion is not left to conjecture as the defendant contends. The jury would have been justified in finding that it was the result of one or both of the causes before referred to. If so, there was evidence of negligence.

[6-9] The fact that the explosion occurred while the boiler was subject to the use for

In accordance with the terms of the report, let the entry be:

Judgment for the plaintiff for $4,000.

For other cases see sane topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

been discontinued, is an allegation of specific | 10. WITNESSES 192-CONFIDENTIAL RELAfraudulent representations and, with an allegation that the parties continued to cohabit during the divorce proceedings, which in itself may be treated as an act of misrepresentation, was sufficient.

[Ed. Note.-For other cases, see Divorce, Cent. Dig. §§ 392-398, 450, 455, 456; Dec. Dig. Dig. §§ 533-548; Dec. Dig. 167.]

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

86

having jurisdiction of the cause and the parties, [ commonwealth, and her residence in Providence in the state of Rhode Island, and that is not sufficient to justify vacating the decree. [Ed. Note. For other cases, see Divorce, Cent. she had deserted him in January, 1908; and Dig. 88 533-548; Dec. Dig. 167.]

that in October, 1912, a decree nisi was grant

17. DIVORCE 167–DECREE-ACTION TO VA-ed, which was made absolute in April, 1913;

CATE-WEIGHT OF EVIDENCE.

The continued cohabitation of a husband and wife during proceedings by him to obtain a divorce is a fact which may be given weight in determining whether he had misrepresented to her that the proceedings had been abandoned. [Ed. Note. For other cases, see Divorce, Cent. Dig. 88 533-548; Dec. Dig. 167.] 18. DIVORCE 167-DECREE LACHES.

VACATING

Where a wife, immediately on learning that her husband, with whom she was still cohabiting, had procured an absolute decree of divorce, consulted an attorney who did not act for her, and shortly thereafter consulted the attorney who subsequently did file a petition to set aside the decree within two months from the time the wife first learned of it, there was no showing that she failed to exercise diligence and good faith which will bar her right to relief, though the husband married, between the time she consulted the first attorney and her consultation with the second, a woman with whom he had been associating and who had promised the wife to have nothing more to do with him.

[Ed. Note.-For other cases, see Divorce, Cent. Dig. $$ 533-548; Dec. Dig. 167.]

19. DIVORCE 167-VACATING DECREE-REMARRIAGE.

[Ed. Note.-For other cases, see Divorce, Cent, Dig. 88 533-548; Dec. Dig. 167.]

that all these allegations in the libel were false, as the libelant well knew, and that in truth the residence of both herself and her husband was in Westport, where at those times they were living in cohabitation as husband and wife; and that by fraudulent misrepresentations she was induced not to contest said libel and to believe that the pro

ceeding had been discontinued, and that she did not know of the granting of the decree until after it had been made absolute.

[1] 1. An allegation that the petitioner did not receive notice of the libel was not necesThe averment of fraudulent inducesary. ment by the husband not to contest the libel was enough. An inducement by fraud to abstain from defending oneself may be as harmful in its consequences as to accomplish the same end by fraudulent prevention or by violence. The essence of the ground for relief is a result accomplished by fraud.

[2, 3] 2. The fraudulent representation, although not set out in the petition with techThe fact that a woman who honestly sup-nical precision, is in substance that the "libel discontinued and posed that a man who had obtained a divorce by proceedings had been fraud had the right to marry her, had married dropped." This is an allegation of specific him and had a child by him, does not prevent the vacating of the decree, especially in view of fraudulent representations and is something the relief granted to her by St. 1902, c. 310, more than a general unsupported averment whereby her innocence and the legitimacy of her of fraud, which standing alone would not be child may be established. enough. Nichols v. Rogers, 139 Mass. 146, 29 N. E. 377; Butler v. McSweeney, 222 Mass. 5, 109 N. E. 653. It was not necessary to set out in detail all those misrepresentations. The continued cohabitation during the pendency of the libel may be treated as an act If further of misrepresentation to that end. particulars were deemed necessary for their defense by the respondents, a motion for specifications was their appropriate form of relief. Ford v. Ford, 104 Mass. 198.

Exceptions from Superior Court, Hampden County; George A. Sanderson, Judge.

Petition by Ida H. Sampson against Henry J. Sampson to set aside a divorce decree, to which Alice G. Sampson was allowed to intervene as a party defendant. Decree for the petitioner, and defendants except. Decree

affirmed.

Jennings & Brayton, of Fall River, for petitioner. J. W. & C. R. Cummings, of Fall River, for respondents.

RUGG, C. J. This is a petition by Ida H. Sampson to set aside a decree nisi and a decree absolute entered in a libel for divorce brought against her by her husband, Henry J. Sampson. Thereafter, Alice G. Sampson was allowed to intervene as a party defendant. Their several demurrers present the The petitioner first point to be decided. avers in substance that she was lawfully married to Henry J. Sampson in 1903, and that thereafter until April, 1913, they cohabited together as husband and wife in Westport in the county of Bristol in this commonwealth; that in July, 1912, her husband entered in the superior court for the county of Hampden a libel for divorce, wherein it was alleged that his residence was in Springfield in this

[4] 3. It was proper at her own request to admit as a party to defend, Alice G. Sampson, who had joined in a marriage ceremony with Henry J. Sampson subsequent to the entry of the decree absolute in the libel for divorce and thereafter had cohabited with him as his wife. The present petitioner seeks no relief against her in this proceeding. Therefore, it was not necessary to insert any averments respecting her in the amended petition after she was admitted as a defendant.

[5, 6] 4. Failure to allege in the petition that the superior court of Hampden county had no jurisdiction over the libel for divorce was not so essential as to be ground for deSo far as that was relied on, it was murrer. an inference of law from the facts pleaded. Indeed, that as a bald proposition is not the single ground for relief. Facts sufficient to show a fraud upon the court are set out in the petition, and that, coupled with the inva

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

sion of the petitioner's rights by fraud, is was not an indirect method of proving the the foundation of the petition.

substance of that conversation. There is a [7] 5. Although advantage may be taken plain line of demarcation between the occurof the defense of laches, by demurrer when rence of the fact of a private conversation it appears on the face of the pleadings (Saw-between husband and wife, which may be yer v. Cook, 188 Mass. 163, 168, 74 N. E. 356), | competent, and a narration of the substance a delay of about seven months after the of that conversation by either of them, which granting of the decree absolute cannot be pro- is not competent. That line in the opinion nounced unwarranted as matter of law of a majority of the court was not over(Rolikatis v. Lovett, 213 Mass. 545, 548, 100 stepped in the case at bar. N. E. 748; Albiani v. Evening Traveler Co., 220 Mass. 20, 26, 107 N. E. 406; Holbrook v. Brown, 214 Mass. 542, 101 N. E. 1087).

[10] 7. Exception was taken to this finding of the trial judge:

"From her opposition to his divorce petitions in Washington, from her conduct toward her husband while the divorce proceedings in Springfield were pending, and from her conduct as soon as she learned that a divorce had been granted, the court finds that the respondent, Henry J. Sampson, in some form of words in private conversation with his wife, fraudulently represented to her that he had abandoned the libel for divorce begun in Springfield; that as a result of his conduct towards her and of his representations to her, the petitioner did not beprosecuted by the respondent, Henry J. Sampson, and did not appear to oppose it; that she did not know that it was to be tried; nor did she know that a decree nisi or a decree absolute was entered until about the third week in October, 1913."

[8] 6. The petitioner testified without objection that on the last Sunday in July, 1912, her husband visited her, remaining two nights and a day, and that they had some talk "about the divorce case in Springfield, and that as a result of the talk less than a week later she went to Providence and got the letter containing the citation" on the divorce libel. She was permitted to testify sub-lieve that the libel for divorce was going to be ject to exception that "as a consequence of that private conversation on the last Sunday in July, she didn't do anything about the divorce hearing after she got the letter containing the notice in Providence."

It plausibly is urged in support of this exception that in effect this is a finding by inference as to what were the private conversations between husband and wife, and that, as direct evidence as to such conversations is incompetent (Leland v. Converse, 181 Mass. 487, 63 N. E. 939), the judge had no right under the law to find by inference what they were and base a conclusion thereon.

It is a principle of the common law which is embodied in R. L. c. 175, § 20, clause first, that “neither husband nor wife shall testify as to private conversations with each other." | That principle always has been declared and enforced by this court. Dexter v. Booth, 2 Allen, 559; Commonwealth v. Cleary, 152 Mass. 491, 25 N. E. 834; Fuller v. Fuller, 177 Mass. 184, 58 N. E. 588, 83 Am. St. Rep. 273; Baldwin v. Parker, 99 Mass. 79, 83, 96 Am. Dec. 697; Leland v. Converse, 181 Mass. 487, 63 N. E. 939. See 4 Wigmore on Evidence, §§ 2334 to 2340. But it never has been extended so far as to prevent the introduction of evidence to prove that there had been a private conversation. That fact, when competent, may be shown although the conversation itself may not be admissible by the testimony of either husband or wife. Proof of that fact is quite disconnected from any direct or indirect statement of the substance of the conversa-ent from contesting the libel. That was the tions.

That statute simply provides that neither the husband nor the wife shall testify as to their private conversations. It does not exclude from the realm of evidence proof of acts designedly induced by those conversations and legitimate inferences as to the cause of such acts.

The fundamental issue was whether the petitioner voluntarily refrained from contesting the libel, or whether she was prevented by the fraudulent practices of the respond

issue which the judge had to decide. The [9] The petitioner, after receiving by regis- substance of his finding is that the respondtered mail at Providence notice that her hus- ent fraudulently prevented the petitioner band had brought a libel for divorce in Hamp- from contesting the libel for divorce. The den county, returnable in August, took no rest of the finding is subsidiary and ancillary steps respecting it for more than a year. The to that main fact. Numerous incidents point motives which led her to this course of con- to the exercise of some coercive power to duct were important as bearing upon the overcome the free desire of the wife. There question whether she was barred by laches was evidence admitted without objection that from maintaining the present petition. The the pending proceeding for divorce was the operations of her mind and the reasons for subject of conversation between the husband her conduct were material. She was a com- and wife. The judge might have found that petent witness upon this point. Knight v. the respondent sought the petitioner with the Peacock, 116 Mass. 362; Toole v. Crafts, 193 express design of urging deceitful representaMass. 110, 78 N. E. 775, 118 Am. St. Rep. 455; tions. The statute does not prevent a court Carriere v. Merrick Lumber Co., 203 Mass. from exercising its sound judgment as to the 322, 327, 89 N. E. 544. That one of the fac-influences which may have been exerted untors going to make up her motive for con- der the shelter afforded by such privacy, and duct was the fact of a private conversation | from inferring that thus fraud had been