Home ALFRED J. THOMAS vs. CHARLES W. MCDERMOTT.

307 Mass. 609

October 11, 1940

Order denying petitions to establish report affirmed. A draft report filed by the defendant in this case of rulings alleged to have been made by the trial judge in connection with the trial of the case was disallowed by the trial judge. So also was a draft report of a denial by the trial judge of a motion for a new trial. Petitions for the establishment of reports were denied by the Appellate Division, and the petitioner -- defendant in the case -- appealed to this court. There was no error in denying these petitions for the reason -- if for no other -- that neither draft report filed by the petitioner if established would have presented to the Appellate Division any "question of law of such gravity as properly to call for consideration of the court." See Commonwealth v. Vallarelli, 273 Mass. 240 , 247; Graustein, petitioner, 305 Mass. 571 . Compare Lovell v. Lovell, 276 Mass. 10 , 11-12.

Home ALICE P. CAMERON vs. WILLIAM J. CAMERON (Noah M. Gediman, administrator).

307 Mass. 609

November 1, 1940

Interlocutory decree affirmed. Final decree affirmed. This petition was brought in the Superior Court for the modification of a decree of divorce by providing therein for an award of alimony to the petitioner, the libellant in the divorce action. It was brought after the death of the libellee, whose administrator de bonis non was summoned to answer. Proceedings resulting in an interlocutory decree and in a final decree dismissing the petition need not be recited. From each of these decrees the petitioner appealed. There was no error. The petition cannot be maintained since there is no nonstatutory right to alimony, and the statutes relating thereto "contemplate proceedings . . . between living parties and the making of orders to operate prospectively in accordance with the existing financial condition of the parties . . . [and] do not justify orders or judgments made after the death of a necessary party, operating retroactively." Gediman v. Cameron, 306 Mass. 138 , 140-141.

Home ESTHER L. WILLIAMS & another vs. ALEXANDER K. WILLIAMS (estate of Kate S. Williams).

307 Mass. 609

November 8, 1940

Decree affirmed. This is an appeal from a decree of the Probate Court in the matter of the alleged will of Kate S. Williams, late of Boston, denying a motion by the contestant for the framing of issues for trial by jury. Upon consideration of the statements for the framing of issues for trial by jury. Upon consideration of the statements of expected evidence -- which need not be recited -- in the light of the established principles of law governing the framing of such issues and review on appeal after action of the Probate Court on motions for the framing of such issues -- which have been frequently stated and need not be restated -- we conclude that there was no error in the denial of this motion. See Hannon v. Gorman, 296 Mass. 437 .

Home JAMES A. MULKERN vs. EASTERN STEAMSHIP LINES, INC.

307 Mass. 609

November 8, 1940

Exceptions overruled. The plaintiff seeks in this action to recover compensation for personal injuries sustained as a result of his slipping on the defendant's premises. There was a verdict for the defendant. The plaintiff's only exception is to the following statement in the charge to the jury: ". . . the defendant would not be liable for an obvious defect if he [the plaintiff] was an invitee. And by `obvious defect' I mean a defect that is

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clearly apparent to a person of ordinary observation. It would not be expected to be liable for obvious defects. . . ." This statement must be considered in the light of the evidence in the case, and of the charge as a whole, in which the judge referred to the duty of the defendant to the plaintiff, if he was an "invitee," to keep the premises in a reasonably safe condition. So considered the charge was sufficiently favorable to the plaintiff, in conformity to the principle that the duty owed by the owner of premises to an invitee or business visitor, in circumstances such as are disclosed by the evidence, would be performed by giving adequate warning of the dangerous condition of the premises, but that there is no duty even to warn if the dangerous condition is "obvious to any ordinarily intelligent person." McGuire v. Valley Arena Inc. 299 Mass. 351 , 352, and cases cited. See also Kelley v. Goldberg, 288 Mass. 79 , 81; Rynn v. Fox-New England Theatres, Inc. 299 Mass. 258 , 259, 260; Bannister v. Berkshire Street Railway, 301 Mass. 598 , 601.