330 Mass. 707

June 30, 1953

Petition for writ of certiorari dismissed. The petitioner was granted by the local licensing board on November 12, 1951, a package store license to sell all alcoholic beverages. On December 18, 1951, the respondents disapproved the granting of that license to the petitioner, and ordered the granting of such a license to a competitor. By G. L. (Ter. Ed.) c. 138, Section 23, as it appears in St. 1943, c. 542, Section 12, relating to liquor licenses, "Every license and permit granted under the provisions of this chapter, unless otherwise provided in such provisions, shall expire on December thirty-first of the year of issue . . .." The license in controversy has long since expired. The subject matter of the petition having become moot, the petition must be dismissed. Selectmen of Lakeville v. Alcoholic Beverages Control Commission, 329 Mass. 769.


330 Mass. 707

October 28, 1953

Decree affirmed. The libellee appeals from a decree granting the libellant a divorce for cruel and abusive treatment. G. L. (Ter. Ed.) c. 208, Section 1. The judge found that on December 23, 1951, the libellee struck the libellant in the face with a bottle, gashing his lip; that the libellant thereupon left the house, but returned in the following month and continued to live with the libellee until May 11, 1952, when she struck him on the head with a package containing toilet water, raising a large bump; and that the libellant again left and since has not lived with the libellee. There had been previous acts of violence by the libellee. Findings were warranted that the assault of December 23, 1951, constituted cruel and abusive treatment; that although condoned, the condonation was conditional; and that the cause for divorce was revived by the subsequent ill treatment of May 11, 1952. Gardner v. Gardner, 2 Gray, 434, 441-442. Callan v. Callan, 280 Mass. 37, 42-43. Hartwell v. Hartwell, 318 Mass. 355, 356. Cabral v. Cabral, 323 Mass. 441. In view of the marital history of the parties this last incident, in itself, was sufficient to support the decree.

Home THEODORE A. MRUGALA, administrator, vs. CITY OF BOSTON.

330 Mass. 707

October 29, 1953

Order sustaining demurrer affirmed. Judgment for the defendant. The declaration in this action of tort alleges the death of the plaintiff's intestate by reason of the negligence of the defendant in the "installation, inspection,

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management, and control" of a water supply system "constituting an operation for profit." The defendant demurred on the ground that the plaintiff had failed to state a case, and the demurrer was sustained. The sole question for decision is whether the defendant, a municipality, comes within G. L. (Ter. Ed.) c. 229, Section 2C, inserted by St. 1949, c. 427, Section 3, which imposes liability on "a person who by his negligence or by his wilful, wanton or reckless act . . . causes the death of a person in the exercise of due care" (emphasis supplied). That a municipal corporation does not come within this statute is settled by our law. O'Donnell v. North Attleborough, 212 Mass. 243. See Donohue v. Newburyport, 211 Mass. 561, 566-569; Howard v. Chicopee, 299 Mass. 115, 121; New Bedford v. New Bedford, Woods Hole, Martha's Vineyard & Nantucket Steamship Authority, 329 Mass. 243, 250; G. L. (Ter. Ed.) c. 4, Section 7, Twenty-third. The authority of the O'Donnell case on this point was not shaken by the decisions in Commissioner of Banks v. Highland Trust Co. 283 Mass. 71, 74, Hurlburt v. Great Barrington, 300 Mass. 524, 526, and Attorney General v. Woburn, 322 Mass. 634, 637, on which the plaintiff relies. With respect to the portion here material the present statute is essentially the same as the statute (R. L. c. 171, Section 2, as amended by St. 1907, c. 375) construed in the O'Donnell case. "It is a well settled rule of statutory interpretation that, when a statute after having been construed by the courts is reenacted without material change, the Legislature are presumed to have adopted the judicial construction put upon it." Nichols v. Vaughan, 217 Mass. 548, 551. Bursey's Case, 325 Mass. 702, 706.