Home PAUL J. ROSENBAUM vs. CLAIRE LAMONTAGNE.

3 Mass. App. Ct. 761

June 10, 1975

The petitioner, the adjudicated father of a minor child, filed two petitions seeking custody of the child. (One petition requested custody and the other, guardianship with custody.) The petitioner appeals from decrees of a judge of the Probate Court dismissing both petitions, with prejudice, for the reason that the petitioner had failed to comply with an order of the court requiring him to furnish a financial statement pursuant to Rule 49 of the Probate Court (1973). It was error to dismiss the petitions for the reason stated, because Rule 49 applies only to a proceeding in which a party requests an order granting, modifying, or terminating alimony or support payments. Such a request was not part of either petition, or of the respondent's answer to either petition. The decrees dismissing the petitions must be reversed, and the case is remanded to the Probate Court for further proceedings upon the petitions.

So ordered.

Home JAMES F. HOLLOMAN vs. PIONEER DODGE COMPANY, INC. & another.

3 Mass. App. Ct. 761

June 10, 1975

This is an action of tort in which the plaintiff seeks to recover for personal injuries sustained in an automobile accident. The plaintiff appeals. Mass.R.Civ.P. 1A, subpar. 7, 365 Mass. 732 (1974). 1. The trial judge did not err in allowing the defendants' attorney to read to the jury an entry in the Salem Hospital records dated the day of the accident relating the results of a routine test of the plaintiff's blood, indicating a blood alcohol level of .37 percent. Thomas v. Hogan, 308 F. 2d 355, 360 (4th Cir. 1962). The plaintiff's sole contention, that the defendants' failure to show that the test was properly performed by qualified personnel rendered the test results inadmissible, is without merit. Commonwealth v. Franks, 359 Mass. 577 , 580 (1971). Commonwealth v. Ennis, 2 Mass. App. Ct. 864 , 865 (1974). 2. The test results having been properly admitted, there was no error in allowing the defendants' fully qualified expert to testify to their significance. Judgments for the defendants are to be entered on the verdicts.

So ordered.

Home COMMONWEALTH vs. CHARLES L. O'NEIL.

3 Mass. App. Ct. 761

June 10, 1975

The defendant was indicted for (1) assault with intent to commit a robbery, while armed, and (2) assault with a dangerous weapon (an automobile) on one Marron. The first indictment was dismissed (by agreement) in open court, and the defendant was thereupon tried on the second indictment. It was open to the jury to find on the evidence that an assault occurred as the defendant drove an automobile at Marron while effecting the getaway of three individuals (one of them armed with a revolver) who had just fled a nearby variety store where an incident had occurred which had been punctuated by screams of the proprietor and his wife and which resulted in the proprietor's summoning the police. If (which we do not decide) there was anything in the portion of the charge excepted to which improperly characterized the nature

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of the incident as a robbery, the defendant was not harmed. The judge explicitly instructed the jury in the same portion of the charge that the defendant "[was] . . . not to be found guilty as to what went on before at the variety store." Compare Commonwealth v. Scott, 355 Mass. 471 , 475-476 (1969).

Exceptions overruled.