Home SEYMOUR E. ALLEN, petitioner to establish the truth of exceptions. [Note 1]

319 Mass. 725

February 8, 1946

Petition dismissed. And it is further ordered that the clerk make appropriate entries upon the docket of the Supreme Judicial Court for the county of Hampden in the case of Seymour E. Allen, petitioner for a writ of mandamus, against John J. Lyons, register of probate. This is a petition to the full court by Seymour E. Allen, petitioner in the county court for a writ of mandamus against John J. Lyons, register of probate, to establish the truth of exceptions disallowed by a justice of this court. Without statement or discussion of other reasons for denying the petition to establish the truth of exceptions, it is enough to say that, even if the truth of the exceptions was established, "no question of law of such gravity as properly to call for consideration of the court would be presented," Commonwealth v. Vallarelli, 273 Mass. 240, 247, and for this reason the petition must be dismissed.


[Note 1] A similar rescript was issued dated February 8, 1946, relating to a petition for a writ of certiorari by Seymour E. Allen against John J. Lyons, register of probate.


319 Mass. 725

February 9, 1946

Decree affirmed. This is an appeal from a decree entered in the Probate Court on July 14, 1945, dismissing a petition for revocation of the decree entered in that court on October 27, 1944, appointing the respondent Percy H. Goodsell as administrator of the estate of John R. Allen. The evidence is not reported and there is no report of material facts found by the judge. The appellant's request therefor, a copy of which is set forth in the record, did not conform to the requirements of the statute. (G. L. [Ter. Ed.] c. 215, Section 11.) The Probate Court had jurisdiction of the subject matter of the petition and the decree entered was within its scope. It must, therefore, be presumed that the judge acted upon sufficient evidence. There are no errors of law on the face of the record. Sandeen v. Tibbetts, 284 Mass. 385, 386. See also Hale v. Blanchard, 242 Mass. 262, 264; Marean v. Kershaw, 281 Mass. 332, 333-334.


319 Mass. 725

February 26, 1946

Order of Appellate Division affirmed. This is an action of contract upon an agreement made with the plaintiff by the defendant real estate broker to pay to the plaintiff all of the commission, except $100, that might be received by the defendant from the owner of certain real estate with respect to the sale thereof to a customer furnished by the plaintiff. Since there was no evidence that the defendant at the time the action was begun had received any such commission, judgment was rightly ordered for the defendant.


319 Mass. 725

February 27, 1946

Exceptions overruled. The plaintiff was a member of a club which on the afternoon of January 25, 1939, met for a bridge party in a hall which it had hired of the defendant. The defendant furnished tables and chairs for the use of the club members. Toward the end of the afternoon the plaintiff attempted to sit down in a chair (which had just before been occupied by a woman weighing between two hundred thirty-five and two hundred forty pounds), and "the next thing she knew she was flat on the floor. . . .

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The chair was flat under her. Her back and her head and everything struck the floor" and her "feet went up in the air." While she was on her back she put her hand back to help herself and she could feel that "the chair was loose," but she did not see what it was; she noticed that her hand "was all dirt and rusted, `something rusty on . . . [her] hand when . . . [she] tried to reach . . . [her] back.'" The chair on which the plaintiff sat was of metal and was of the folding type. At the close of the evidence the judge directed a verdict for the defendant subject to the exception of the plaintiff. The ruling was right. The evidence fails to show any negligence on the part of the defendant. There is no evidence that the chair broke. The plaintiff's testimony that there was something loose when she felt of the chair would not warrant such a finding. The fact that the plaintiff noticed rust on her hand after she had reached in back of her would not indicate that the chair was defective. See Callaghan v. R. H. White Co. 303 Mass. 413, 416. There is here nothing more than the mere happening of an accident under circumstances which would not give rise to an inference of negligence on the part of the defendant. See Gangi v. Adley Express Co. Inc. 318 Mass. 762. We find nothing in Callahan v. New England Telephone & Telegraph Co. 216 Mass. 334, Keenan v. E. M. Loew's, Inc. 302 Mass. 309, Bell v. Dorchester Theatre Co. 314 Mass. 536, and Matthews v. L & L Enterprises, Inc. 314 Mass. 538, cited by the plaintiff, at variance with the conclusion here reached.