Home ACUSHNET HOSPITAL ASSOCIATION vs. TOWN OF ACUSHNET.

318 Mass. 781

October 29, 1945

Appeal dismissed. This action of contract was brought in a District Court. There was a finding for the plaintiff. Upon a report to the Appellate Division the finding was vacated and a new trial for the assessment of damages ordered. The plaintiff claimed an appeal and the appeal has been entered in this court. The decision of the Appellate Division was not a "final decision" from which alone an appeal to this court lies. A new trial must be had before the case can be brought here. The appeal must be dismissed. G. L. (Ter. Ed.) c. 231, Section 109. Real Property Co. Inc. v. Pitt, 230 Mass. 526 . Demers v. Scaramella, 252 Mass. 430 . Cunniff v. Cleaves, 288 Mass. 325 . Robinson v. Wm. Brown & Sons Co. 301 Mass. 316 . Weiner v. Pictorial Paper Package Corp. 303 Mass. 123 , 125-126.

Home NANCY GIBLIN vs. LINCOLN PARK AMUSEMENT CO.

318 Mass. 781

October 29, 1945

Exceptions overruled. This action of tort was brought in the Superior Court by the plaintiff by her next friend to recover compensation for personal injuries. There was evidence that the plaintiff sustained such injuries when she was six years old. The jury returned a verdict in the amount of $5,000. The defendant filed a motion for a new trial on the ground that the "damages awarded are excessive" and to "prevent a miscarriage of justice." The judge, after hearing, denied the motion. He made no specific ruling of law and no such ruling was requested. The defendant excepted to the denial of this motion. Its sole contention relates to the amount of the damages awarded. The disposition of the motion was within the sound judicial discretion of the judge, and his exercise of discretion in denying the motion cannot be revised on exception unless there was an "abuse of discretion" amounting to error of law. Bartley v. Phillips, 317 Mass. 35 , 43-44. Examination of the evidence upon the issue of damages -- which need not be recited -- does not disclose that the amount of the verdict, though large, was so clearly disproportionate to the injuries sustained that "no conscientious judge, acting intelligently, could honestly" have permitted the verdict to stand by denying the motion for a new trial. Davis v. Boston Elevated Railway, 235 Mass. 482 , 502. Kinnear v. General Mills, Inc. 308 Mass. 344 , 348-349. Consequently, it cannot rightly be said that there was "abuse of discretion" amounting to error of law.

Home JOSEPH H. WILBUR vs. IRENE R. WILBUR.

318 Mass. 781

October 30, 1945

Decree affirmed. This libel for divorce on the ground of cruel and abusive treatment was brought in the Probate Court. After a hearing a decree was entered denying the libel but ordering it "continued on the docket of the court from time to time" and providing for the care, custody and support of the four minor children of the parties. The libellant appealed to this court. The evidence is not reported but there is a report of the material facts found by the judge. The facts found include only two incidents in the conduct of the libellee toward the libellant -- one in September, 1941, and the other on March 9, 1942. The findings import that the parties continued to live together until the second incident after which the libellant "never returned." The judge made no finding that either or both of the incidents did or did not constitute cruel or abusive treatment other than may be inferred from the decree denying the libel. We are of opinion that the facts found do not lead to the conclusion that the libellee was guilty of cruel and abusive treatment of the libellant. The libel was denied rightly. The findings fall far

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short of the findings in Mooney v. Mooney, 317 Mass. 433 . There is no contention that, if the libel was denied rightly, the remainder of the decree was not proper. See G. L. (Ter. Ed.) c. 208, Section 20; Harrington v. Harrington, 254 Mass. 506 .