"

tempting to cross the street until such obstacle to his view was removed." "If, when the plaintiff started to cross Harrison avenue, he could not see defendants' team approaching by reason of the position of the large team, and attempted to cross so closely to the rear of the large team that he could not see defendants' team approaching until he got by the large team, he was not in the exercise of due care. It is urged in behalf of the defendants that it is always negligent for a pedestrian in the streets of Boston to attempt to cross behind a high loaded team until the team has passed so far as to enable him to see that no other team is coming from behind it on the other side. We cannot lay this down as a legal proposition. Wellington v. Bowser, 126 Mass. 391; Shapleigh v. Wyman, 134 Mass. 119. The circumstances of different cases NO vary, and the natural and usual methods of crossing our crowded streets are so affected by facts and influences which are difficult of statement, and which are seldom found twice in the same combination, that there are few rules of law which can be arbitrarily laid down in reference to the effect of particular acts. When a pedestrian is run over by a team on a street, the question whether there was negligence on his part, or on the part of the driver of the team, or on the part of both of them, is usually a question of fact to be decided by the jury. One passing behind a loaded team which obstructs his view has no such reason to apprehend danger from a team driven in the opposite direction, when he hears nothing, as he would have if he were crossing over one track of a railroad to another on which a rapidly moving train might be coming. Of course he should take precautions, and endeavor to ascertain whether he is exposing himself to danger. But, in view of the rate of speed at which horses are ordinarily driven in crowded streets, and the control which is usually exercised over them, to determine what precautions are necessary to prevent being run over is commonly a matter of fact, and not of law. We are of opinion that the instructions requested were rightly refused. Exceptions overruled.

RAWSON V. RAWSON et al. (Supreme Judicial Court of Massachusetts. Worcester. June 23, 1892.)

MARRIAGE-ANNULMENT-DEATH OF HUSBAND.

Where two persons have contracted marriage in good faith, and it is subsequently discovered that the wife had a former husband living at the time of her second marriage, she cannot maintain an action to avoid her second marriage after the death of her second husband.

Report from superior court, Worcester county; DANIEL W. BOND, Judge.

Action by Lucy A. Rawson against Stephen W. Rawson asking a decree annulling her marriage with defendant, after his death. Case dismissed. Plaintiff excepts. Exceptions overruled.

Thayer & Rugg, for petitioner. Joshua E. Beeman, for respondent.

*

KNOWLTON, J. This case presents the question whether, when two persons have contracted marriage in good faith in the belief that each can lawfully marry, and it is subsequently discovered that the mar riage is void because one of the parties has a former husband or wife alive, a libel for annulling the marriage can be main. tained by the survivor after the death of the other party. Pub. St. c. 145, § 11, which provides for proceedings to annul or affirm a marriage whose validity is doubted, makes these proceedings closely analogous to proceedings for divorce. Under the statute "either party may file the libel;" that is to say, either party to the supposed marriage, and not another person interested in the marriage. "Such libel shall be filed in the same manner as a libel for divorce, and all the provisions of chapter 146 relative to libels for divorce shall, so far as applicable, apply to libels under this section." Section 11. The statute plainly contemplates proceedings between the original parties to the marriage, and these can only be had while they are both alive. It has always been held in England that petitions for a decree of nullity of a marriage cannot be maintained after the death of one of the parties. Hinks v. Harris, 4 Mod. 182; Hemming v. Price, 12 Mod. 432; Brownsword v. Edwards, 2 Ves. Sr. 245; 2 Bish. Mar. & Div. § 298, and cases cited. We have been referred to no authority in which a libel of this kind has been sustained in this country, and it would seem that, except where there are special statute provisions, the law in the American states is the same as in England. Fornshill v. Murray, 1 Bland, 479; Pingree v. Goodrich, 41 Vt. 47. The reasons on which such proceedings are ordinarily founded are inapplicable to a case in which one of the parties is dead. While both are living, and the marriage apparently in force, it may be important to have their status determined by an adjudication, rather than that they should remain in doubt in regard to the validity of the marriage. But where death terminates the marriage relation, this reason no longer exists. Moreover, there are grave objections to permitting one of the parties, after the death of the other, to have a decree which shall relate back and change their previous apparent status, and perhaps affect important collateral interests. Without an express provision of statute to that effect, a libel of this kind ought not to be permitted after the death of either of the parties. It is contended in behalf of the libelant that, under Pub. St. c. 145, § 14, a decree of nullity should be entered for the purpose of giving legitimacy to the issue of the supposed marriage. If the contention of the libelant were correct, it would follow that a libel might be brought, and a decree of nullity entered, after the death of both of the parties to the supposed marriage. This is not the meaning of the statute. Section 14 does not authorize the bringing of any suit which cannot be brought under section 11, and the statement of the fact that the second marriage was contracted in good faith is to be made in a decree of nullity entered while both of the

parties to the marriage are alive, and not in any other. The libel was rightly dismissed. The other questions raised at the hearing are not now material.

Libel dismissed.

WHITE et al. v. KENNEY et al. (Supreme Judicial Court of Massachusetts. Suffolk. June 23, 1892.)

ERECTION OF STABLES-LICENSE-NUISANCE-DECISION OF BOARD OF HEALTH.

Under St. 1891, c. 220, § 1, inhibiting the erection of stables in a city without a license of the board of health, the determination of the natural and probable effect of such erection is a question for the board of health, the decision of which, in granting a license, is conclusive until at least a building has been erected and a nuisance actually created.

Report from supreme judicial court, Suffolk county; JOHN LATHROP, Judge.

Suit by Henrietta K. White and others against Charles Kenney and others to en. join the erection of a stable. Case reported. Bill dismissed.

R. M. Morse, Geo. R. Swasey, and Marcus Morton, for complainants. M. & C. A. Williams, for respondents.

KNOWLTON, J. The defendants have received from the board of health of the city of Boston a license to erect their stable, granted after a public hearing at which the petitioners were represented. The license was issued under the statute of 1891, c. 220, which provides in section 1 "that no person shall hereafter erect, occupy, or use any building in any city for a stable for more than four horses, unless first licensed so to do by the board of health of said city, and in such case only to the extent so licensed." Section 4 makes punishable violations of the act, and provides that courts "having equity jurisdiction may restrain any such erection, occupation, or use contrary to the provisions of this act." Under statutes somewhat similar it has been held that the act gives to the designated tribunal jurisdiction to determine finally whether the use of property in accordance with the terms of a proposed license would or would not make it a public or private nuisance, and that the use of the building in conformity with the license granted would not subject the owner to indictment or injunction. Call v. Allen, 1 Allen, 137; Com. v. Rumford Chemical Works, 16 Gray, 231, 233; Sawyer v. Davis, 136 Mass. 239. See, also, Quinn v. Middlesex Electric Light Co., 140 Mass. 109, 3 N. E. Rep. 204; Same r. Lowell Electric Light Corp., 140 Mass. 106, 3 N. E. Rep. 200; Alter v. Dodge, 140 Mass. 594, 5 N. E. Rep. 504. Whether this doctrine should be applied to the statute now before us to the full extent contended for by the respondents it is unnecessary, in the present case, to decide. The petitioners do not offer to show that they have suffered any injury, or that any nuisance has been created, but they wish to introduce evidence of what will be the natural and probable effect of the erection and use of the respondents' proposed building according to the terms of the license. We are of opinion that the statute gives the

determination of this question to the board of health. This kind of question always arises when an application for a license to erect such a stable in a city is made, and if the board of health cannot finally determine it, their license, when granted, is of no effect. If the building had been erected, and was in use, and if it were contended that the petitioners were suffering from a nuisance, the case would be different, and it then might become necessary to determine whether the respondents could be held liable in a proceeding of this kind for acts done within the authority of the license. But after a hearing before the board of health, and a license granted in pursuance of the finding of that board, we cannot enter into an inquiry, which at best must be largely speculative, as to the probable effect of erecting and using a building which the statute recognizes as, under certain circumstances, proper to be erected and used. The provision of the statute above quoted, which authorizes courts of equity to restrain any "erection, occupation, or use contrary to the provisions of this act," implies that courts may not restrain an erection which is in accordance with the act; and after a license has been granted this provision should be given effect, so far at least as to justify the court in refusing, before the stable is erected, to investigate probabilities of injury in the future which in their nature are more or less conjectural. We are of opinion that the bill should be dismissed, with costs.

STONE V. ST. LOUIS STAMPING CO. (Supreme Judicial Court of Massachusetts. Suffolk. June 23, 1892.) JUDGMENT-Verdict-RepORTED CASE-APPEAL

REVIEW.

1. Under Pub. St. c. 153, § 6, which provides that the trial court, "after verdict or decision by the court, may report the case for determination by the supreme judicial court," a report which states that, after a verdict for the defendant, the court, "with the assent of both parties, reports the case for the determination of the supreme judicial court, both parties agreeing that if, upon the evidence, the jury would be warranted in finding a verdict for the plaintiff, judgment is to be entered for him," justifies the trial court, after the supreme court has decided the reported case in favor of the plaintiff, in rendering judgment for the plaintiff notwithstanding the ver

dict.

2. The refusal of the trial court to set aside an agreement as to judgment on a reported case is not reviewable on appeal, being a matter of discretion.

Appeal from superior court, Suffolk county.

Action by Phineas A. Stone against the St. Louis Stamping Company. Verdict was ordered for defendant, who moved for arrest of judgment because by mistake the question of estoppel by former judg ment was not tried, and because the defendant had additional evidence on that issue which could not be presented at the former trial. The motion was overruled, and judgment rendered for plaintiff. Defendant appeals. Affirmed.

Warren O. Kyle, for appellant. Seth J. Thomas, for appellee.

to run over one of the tracks of the defendant's road between Jamaica Plain and Clarendon Hills, on a three-wheeled car, called a "tricycle," which was operated by himself. On the morning of December 2, 1888, he started, at a little before 6 o'clock in the morning, from Jamaica Plain, for the purpose of inspecting the track. There were three tracks on that portion of the defendant's road, which it was his duty to inspect. One of these was used by inward trains, another by outward trains, and the third was liable to be used by trains going either way. He had no directions as to which track to go on, and he chose the third track, which was liable to be used at any time, especially by construction trains or extra trains. Dolan was last seen alive by an employe of the defendant, who was a crossing teuder, and the tricycle was then going at the rate of eight or ten miles an hour. About five minutes afterwards, a train, consisting of a locomotive engine and caboose, passed on the same track, and going in the same direction, at the rate of 10 to 15 miles an hour. This train, it is admitted, struck the tricycle, although both the engineer and fireman testify that they knew nothing about the accident, until they reached Dedham, when, from indications on the locomotive engine, it was apparent that something had been struck. The train then returned to Bostou, and on the way Dolan was found dead by the side of the track, and the tricycle broken.

To maintain either action, it must appear that Dolan was in the exercise of due care at the time the accident happened. There is no sufficient evidence of this. What he was doing when struck can only be conjectured. When last seen, he was five minutes ahead of the train which struck him, and going at a rate of speed nearly as great as that of the train. If he had looked out for the train, as it was his duty to do under the rules of the defendant corporation, it is difficult to see how the accident could have happened, for his tricycle could, as the evidence shows, have easily been removed from the track, or he might have jumped from it. The headlight of the locomotive engine was lighted, and there was nothing to prevent its being seen. Indeed, the evidence in behalf of the plaintiffs shows that Dolan did not have his lanterns lighted, either when he started or when he was last seen. If he did not have them lighted at the time of the accident be failed in his duty, and was guilty of negligence in a particular which could not but have contributed to the accident. If we are to presume, in favor of the plaintiffs, that the same state of things existed at the time of the accident as existed five minutes before, we must presume, in favor of the defendant, that the lanterns were not lighted. Indeed, the latter presumption is corroborated by the testimony of both the engineer and the fireman of the locomotive engine, who testified that they saw no lanterns.

If all the circumstances attending the accident were in evidence, the mere absence of evidence of fault on the part of the person injured might justify an infer

ence of due care. But where, as in this case, there is an entire absence of evidence as to what Dolan was doing at the time of the accident, it is not enough to show that one conjecture is more probable than another. There must be some evidence to show that he was in the exercise of due care. Hinckley v. Railroad Co., 120 Mass. 257; Corcoran v. Railroad Co., 133 Mass. 507; Riley v. Railroad Co., 135 Mass. 292; Shea v. Railroad Co., 154 Mass. 31, 27 N. E. Rep. 672. We are therefore of opinion that the ruling of the court below was right, and in each case the order must be, exceptions overruled.

HOWLAND et al. v. GEORGE F. BLAKE MANUF'G Co.

(Supreme Judicial Court of Massachusetts. Suffolk. June 23, 1892.)

LIBEL-PLEADING JUSTIFICATION-Evidence

CHARACTER-PUBLICATION.

1. Where, in an action for libel, the answer, taken in connection with the declaration, does not definitely show what defendant intends to prove in justification, it is the duty of plaintiffs to move for a more specific statement, and, failing so to do, they cannot object to evidence given by defendant of the truth of any statement made in the alleged libel.

2. Where, in an action of libel, defendant gives evidence of the truth of the alleged libel, plaintiffs may give evidence of their good reputation only as bearing on the question of damages, and for no other purpose, unless the alleged libel charged plaintiff with the commission of a crime.

3. In such an action, an instruction that defendant is liable for the libel in the form in which it appeared if he furnished any part of the materials used, or in any way aided or was concerned in its production, is erroneous; as is one which assumes that furnishing some of the materials used would constitute a publication, when the libel as a whole was very different from the materials so furnished.

4. If defendant gave a copy of the libel to one who, in procuring it, acted as plaintiffs' agent, and at their request, such publication, if procured with a view of bringing the action, is privileged.

5. Where, in answer to an inquiry as to the business standing of a firm, one sends in good faith, and believing it to be true, a copy of a libelous article concerning the firm to the person making the inquiry, such a publication is privileged.

6. In an action of libel, where the evidence is uncertain and conflicting, it is proper for the court to instruct the jury as to what facts constitute a privilege, and leave them to say whether those facts are proved.

Exceptions from superior court, Suffolk county; CALEB BLODGETT, Judge.

Action of libel by Arthur H. Howland and others against the George F. Blake Manufacturing Company. Verdict for defendant. Plaintiffs except. Exceptions overruled.

E. Avery, H. L. Baker, and J. C. Sharkey, for plaintiffs. C. W. Bartlett and E. R. Anderson, for defendant.

KNOWLTON, J. 1. The first contention of the plaintiffs is that the answer is insufficient to authorize the introduction of evidence of the truth of the various allegations contained in the alleged libel. It is argued that the answer, taken in connection with the declaration, does not definitely show what the defend

ant intends to prove in justification. If the plaintiffs had bad difficulty in knowing for what to prepare under this answer they might have moved for a more specific statement, and it would have been in the power of the court to make such an order as would amply protect their rights. In the absence of such a motion, the defendant could properly assume that evidence would be received tending to prove the truth of any statements made in the alleged libel, and it would have been unfair to the defendant to exclude its evidence on an objection first interposed at the trial. McLaughlin v. Cowley, 127 Mass. 316.

2. The defendant introduced evidence tending to show that the plaintiffs failed to perform their contract with the town of Maynard, and that they supplied and endeavored to supply work and materials inferior to those called for by their agreement. The plaintiffs then offered evidence of their business reputation and of their individual reputation before they entered into the contract. There has been a great variety of opinion on the question how far a plaintiff may introduce evidence of his good reputation in an action of slander. In general, it is held that such evidence is incompetent unless his reputation is first attacked by the defendant; for he is presumed to be of good character until something appears to show the contrary. But if there is testimony against his reputation he may meet the attack by calling witnesses to show his good character. In this commonwealth, and in most jurisdictions, a defendant may prove, if he can, that the plaintiff is of bad reputation, in mitigation of damages, and rebutting testimony of a similar kind is competent on the same question. Ordinarily, evidence of the plaintiff's reputation is admissible only on the question of damages; but there are authorities which hold that in a certain class of cases it is competent on the question of liability. If the commission of a crime is charged in the libel, and the defendant offers evidence of the truth of the charge, it is sometimes said that the plaintiff may show his previous good reputation in answer to the evidence of his guilt. This is the familiar rule in criminal trials, but courts have differed on the question whether it should be introduced in suits for libel or slander. In New York it is held that it should be confined to criminal pros. ecutions. Houghtaling v. Kilderhouse, 1 N. Y. 530, 2 Barb. 149, and cases cited. See, also, Gough v. St. John, 16 Wend. 645, 653; Pratt v. Andrews, 4 N. Y. 493; Miles v. Van Horn, 17 Ind. 245; Cornwall v. Richardson, Ryan & M. 305; Odger, Sland. & L. 298, note. In Downey v. Dillon, 52 Ind. 442, the court makes a distinction between cases in which the charge sought to be proved is of the commission of a crime and those in which the charge is of smaller magnitude, holding that in the former a plaintiff may show his good reputation in answer to evidence of the truth of the charge, and in the latter that he cannot. We are aware of no well-considered cases which go further than that. It is true that the plaintiff's reputation is in issue v.31N.E.no.8-42

in an action of libel or slander, and when it is attacked it may be defended for the purpose of obtaining a proper award of damages. But on principle as well as authority evidence of good reputation is not competent to show that a plaintiff is not guilty of a dishonorable or unlawful act which is not punishable as a crime, any more than evidence of his bad reputation would be competent to prove his guilt. This kind of evidence has usually been quite strictly confined to criminal prose. cutions, and it has never been admitted in reference to matters which are not subjects of criminal prosecution. It has sometimes been admitted in suits for malicious prosecution, where, from the nature of the action, the plaintiff has the burden of disproving in a civil suit charges which in a preliminary proceeding have been made against him in a criminal prosecution. McIntire v. Levering, 148 Mass. 546, 20 N. E. Rep. 191, and cases cited. In Harding v. Brooks, 5 Pick. 244, which was an action of slander, the verdict was for the plaintiff, and the question was whether he was rightly permitted to introduce evidence of his good character after it had been attacked by an attempt to prove the truth of the slanderous words. The adjudication was plainly right, for the evidence was competent on the question of damages; and assuming, as the court seems to have done, that the charge imputed acts punishable criminally, it was within the principle that in such a trial good reputation may be shown in answer to specific facts indicating guilt. We think this case should not be considered an authority for the introduction by a plaintiff of evidence of his good character in reply to evidence of the truth of a libel, except upon the question of damages, and in cases where the charge sought to be proved is of a criminal act. In the present case, the evidence was immaterial on the question of damages, for the verdict was for the defendant; and it was not competent for the purpose of disproving the truth of the charges, for it did not meet the issue, and the charges were not of punishable conduct. It was therefore rightly excluded.

3. The first five of the plaintiffs' requests for instructions relate to the alleged participation of the defendant in the preparation of the libel. These instructions were rightly refused. Each of the first three embodied as requisite to the existence of liability a publication of the libel by the defendant after it was printed, and the presiding justice gave full and proper instructions as to what would constitute a publication, and covered this part of the requests. The further proposition that furnishing any part of the ma terials used in the composition of the libel, or being concerned, or in any way aiding, in the production of the libel, would make the defendant liable for the libel in the form in which it appeared, is incorrect. The ruling requested went far enough to make the defendant liable for the publication, even if ignorant of the greater part of its contents, and if it had no intention that such a libel should be published, and gave no authority in regard to it.