MARY LYFORD, administratrix, vs. BOSTON AND MAINE RAILROAD. Suffolk. January 9, 1917. — May 24, 1917. Present: RUGG, C. J., LORING, BRALEY, DE COURCY, & CARROLL, JJ. Negligence, Employer's liability, Causing death. Evidence, Matter of conjecture. At the trial of an action by an administrator against a railroad corporation, the intestate's former employer, for causing his death through negligence, there was evidence that the employee was a night watchman on a wharf and that it was his duty to "ring in" certain boxes, that, he not having "rung in" a certain box at the appointed time, a search was instituted within a few minutes; that certain of his personal belongings were found at once and the next morning his lifeless remains were observed near the box which he next should have "rung in;" that there were no marks of violence upon his body and no indication of injury preceding death; that medical experts were unable to state whether the employee had had a stroke of paralysis or vertigo or heart disease previous to falling into the water; that in the path which he should have traversed to reach the box he next should have "rung in" were cleats and one board which projected a little at one end and which, although loose, would not move when walked upon. No one saw what happened to the employee. Held, that there was no evidence warranting a finding that negligence of the defendant or any of its employees caused the death of the plaintiff's intestate. TORT under St. 1909, c. 514, § 129, as affected by St. 1911, c. 751, Part I, §§ 1, 3, by the administratrix of one who on November 5, 1914, met his death while in the employ of the defendant. Writ dated March 24, 1915. In the Superior Court the action was tried before Stevens, J. The material evidence is described in the opinion. At the close of the evidence the judge ordered a verdict for the defendant; and the plaintiff alleged exceptions. H. B. Ehrmann, (W. J. Bloom with him,) for the plaintiff. RUGG, C. J. This is an action of tort under the employers' liability act, St. 1909, c. 514, § 129, as affected by the workmen's compensation act, St. 1911, c. 751, Part I, §§ 1, 3, to recover damages for the death of an employee of the defendant. As the defendant does not appear to have been a subscriber under the workmen's compensation act, the decisive question is whether there was any evidence tending to show negligence on the part of the defendant or its servants. The deceased was a night watchman upon Mystic Wharf. There was evidence tending to show that it was his duty to "ring in, at regular intervals, certain boxes, twelve in number, situated at various points on the wharf. . . . at 6.30 P.M. on November 5, 1914, the deceased began to make his rounds of the boxes for the first time that day, that he rang in seven boxes as usual, but never rang in another box." Because of the failure to ring in the next box a search was instituted within a few minutes, but no trace of him then was found except his hat floating in the water and his keys on a lighter moored to the wharf. A man near by heard a splash in the water and next morning the lifeless remains of the deceased were found clinging to one of the piles near the eighth box. He was a man of good habits, in excellent health, and never troubled with vertigo or heart disease, but according to the medical examiner, "it was impossible to say, from his examination, whether or not the deceased had a stroke of paralysis, or vertigo, or heart disease, prior to falling into the water." The death was due to drowning and there were no marks on the body indicating an injury before death. The wharf was entirely covered by a shed, with the exception of a strip about two feet wide. Outside this and along its outer edge extended a raised log one foot in diameter capping the outer row of piles supporting the wharf. Along the inside of the log at varying intervals were large iron cleats around which ropes were wound to make lighters fast to the wharf. The eighth box was reached only by this narrow space, which must be traversed for about fifty feet. There was a loose plank in the flooring "about midway between two escalators or drops" and in the path of one going to the eighth box. This loose plank was about twenty inches long and seven inches wide, fitting into the walk, level to the rest of the planking as far as could be observed, although there was a slight accumulation of dirt under it and one end projected a little. It would not move when walked upon. There is nothing in this evidence to show that the deceased met his death through any negligence of the defendant. It is wholly a matter of conjecture how the deceased happened to get into the water. It is entirely speculation whether it was due in any degree to negligence of the defendant. There is nothing stronger than surmise that he may have tripped over the loose plank rather than against one of the iron cleats, or fallen into the water from some other cause. The case is well within the authority of numerous decisions, only a few of which need be cited. Childs v. American Express Co. 197 Mass. 337. Bigwood v. Boston & Northern Street Railway, 209 Mass. 345. Leary v. Fitchburg Railroad, 173 Mass. 373. Ridge v. Boston Elevated Railway, 213 Mass. 460. Sanderson's Case, 224 Mass. 558. Moynihan v. Boston & Maine Railroad, post, 180. Exceptions overruled. COLONIAL FUR RANCHING COMPANY vs. FIRST NATIONAL BANK OF BOSTON. Suffolk. January 12, 1917. May 24, 1917. Present: RUGG, C. J., LORING, BRALEY, & CARROLL, JJ. Contract, Implied in law. Bank. Bills and Notes. Evidence, Inference. The mere facts that a national bank, which had in its possession for collection a note of a corporation bearing also the personal indorsement of W, the corporation's treasurer, and of another, on the date when the note fell due received in payment of that note from a representative of the maker a check of another corporation signed by W, who was also its treasurer, payable to the bank's order and duly certified by a trust company upon which it was drawn, are not enough to compel an inference that the bank, when it received the check, knew that it was drawn by the treasurer upon the second corporation without authority and was used by him to pay his private debt. The facts above described do not make necessary a finding for the plaintiff in an action by an assignee of the second corporation against the national bank for the amount of the check, alleged to have been money had and received by the defendant to the use of the plaintiff's assignor. CONTRACT by the assignee of the St. Georges Bay Fur Company for money had and received to that corporation's use "in the form of a check of the St. Georges Bay Fur Company dated February 20, 1914, in the sum of $1,000.00 signed by its treasurer, Charles E. Walker, made payable to the First National Bank, received by said First National Bank in payment of private indebtedness or for the private benefit of said treasurer, with knowledge that the said check was drawn against funds of the said St. Georges Bay Fur Company without authority." Writ in the Municipal Court of the City of Boston dated March 29, 1916. On removal to the Superior Court, the case was heard by Dana, J., without a jury, upon the pleadings and an agreed statement of facts. He ruled that the plaintiff was not entitled to recover and reported the case to this court for determination. If his ruling was correct, judgment was to be entered for the defendant; otherwise, judgment was to be entered for the plaintiff for $1,000 with interest. N. W. Bingham, Jr., for the defendant. P. R. Ammidon, for the plaintiff. RUGG, C. J. The salient facts in this case are that there had been sent to the defendant for collection a note made by the Union Commercial Paper Company, bearing also the personal indorsement of one Walker, its treasurer, and of one Wing. The defendant sent notice to the Union Commercial Paper Company, maker, that the note had been forwarded to the defendant for collection. On its due date a representative of the maker presented to the defendant in payment of the note a check to the order of the defendant drawn by the St. Georges Bay Fur Company, signed by said Walker, he being treasurer of that organization as well as of the Union Commercial Paper Company, on the International Trust Company and certified by the trust company. The check was accepted in payment and the note was delivered by the defendant to the representative of the maker. The St. Georges Bay Fur Company had a checking account with the International Trust Company. The check was paid in course and the defendant remitted the proceeds to its correspondent, who had forwarded to it the note for collection. There was no further evidence other than such inferences as may be drawn from these agreed facts. The defendant had no interest in the note or check other than as collecting agent. It had no knowledge whether the St. Georges Bay Fur Company, the drawer of the check, had any relations with the Union Commercial Paper Company, the maker of the note; nor did it have any knowledge as to the authority or want of authority of Walker as treasurer to sign the check, and no notice of any infirmity in the check unless necessarily inferable from the circumstances stated. The plaintiff is the assignee of the St. Georges Bay Fur Com pany and brings this action to recover of the defendant the proceeds of the check collected by it. Its ground of action is that the transaction on its face showed that it was a payment of the private debt of Walker, or for his benefit, out of the funds of the St. Georges Bay Fur Company without authority. The plaintiff is not entitled to recover under these circumstances. The defendant bank, although named as payee of the check, was or might be, nevertheless, a holder in due course. Liberty Trust Co. v. Tilton, 217 Mass. 462, and cases there collected. By R. L. c. 73, § 76, every holder is deemed prima facie to be a holder in due course. The defendant became a holder in due course by receiving a check complete and regular on its face, before being overdue, in good faith and for value, with no notice of any infirmity in the check or defect in the title of the person negotiating it. R. L. c. 73, § 69. Shawmut National Bank v. Manson, 168 Mass. 425. Boston Steel & Iron Co. v. Steuer, 183 Mass. 140. There is nothing in the agreed facts to indicate that the check was not given by its maker, the St. Georges Bay Fur Company, to the Union Commercial Paper Company in payment of a debt owed by it to the latter company, having been previously made at its request to the order of the defendant in order that the check might be used in payment of the note of the Union Commercial Paper Company held by the defendant for collection. Moreover, the check was certified by the trust company, on which it was drawn, before it was offered to the defendant. For aught that the latter knew, that certification may have been procured by the Union Commercial Paper Company, whose representative presented it to the defendant. The check, complete in every respect as to form, was tendered to the defendant by a representative of the maker, the Union Commercial Paper Company, who was the one primarily liable on the note, and not by Walker, whose liability was only secondary. There was nothing in the transaction to indicate that the check was intended as a payment of the debt of Walker, but on the contrary everything indicated that it was intended as a payment of the debt of the maker of the note. In principle the case at bar is indistinguishable from National Investment & Security Co. v. Corey, 222 Mass. 453. Allen v. Fourth National Bank, 224 Mass. 239, 244. See, also, Allen v. Puritan Trust Co. 211 Mass. 409, 423. |