Home THE PRUDENTIAL ACCEPTANCE CO. vs. AETNA LIFE INSURANCE COMPANY.

320 Mass. 763

November 27, 1946

Decree affirmed with costs. This is a bill in equity, brought by an assignee of an insured under a policy of life insurance issued by the defendant, to reach and apply the sum alleged to be due from the defendant to the insured. The bill also sought an accounting. It is unnecessary to summarize the bill because at the trial the plaintiff waived everything except the disability benefits claimed to be due for disability commencing before the policy lapsed. The defendant rested at the close of the plaintiff's case and the judge entered a decree dismissing the bill, from which the plaintiff appealed. The evidence is reported. The judge made no findings of material facts, but his general finding for the defendant imports a finding of every fact essential to support his conclusion. Berry v. Kyes, 304 Mass. 56 , 57. While it is our duty to examine the evidence and to decide the case according to our own judgment, we do not reverse the findings of the trial judge implied in his decree unless they are plainly wrong. Marshall v. Landau, 308 Mass. 239 , 241. Slater v. Munroe, 313 Mass. 538 , 540. The burden rested upon the plaintiff to establish that the insured "before default in payment of premium . . . [had become] totally and permanently disabled by bodily injuries or disease and . . . [was] thereby prevented from performing any work or conducting any business for compensation or profit . . .." The general finding for the defendant implies a finding that he was not so disabled. In dealing with questions of fact "This court . . . weighs the reported evidence, giving due consideration to the superior opportunity of the trial judge who saw and heard the witnesses." Trade Mutual Liability Ins. Co. v. Peters, 291 Mass. 79 , 83-84. From an examination of the evidence, practically all of which on the issue of disability was oral, we cannot say that the implied finding that the insured was not totally and permanently disabled within the terms of the policy was plainly wrong.

Home JENNIE MOLARELLI vs. HAYES-BICKFORD LUNCH SYSTEM.

320 Mass. 763

November 27, 1946

Exceptions overruled. This is an action of tort to recover compensation for personal injuries sustained by the plaintiff. A verdict for the defendant was directed and the plaintiff excepted. There was no error. There was the following evidence: The plaintiff, a business visitor, was entering the defendant's place of business through an entrance consisting of a revolving door. As she started through the revolving door, she was the only one entering or leaving by that door. The revolving door consisted of about five or six sections. As the plaintiff was entering and was between two partitions of the revolving door, "she heard a big noise and something snapped." The rear partition of the section in which she was came forward, striking her and catching her between the rear and front partitions of the section she was in. At the time of the accident, the front partition of the section the plaintiff was in had not yet reached the opening into the store. As a result of the partitions coming together, the plaintiff was injured. After she released herself from the section of the revolving door, "she noticed about a half dozen men trying to fix the revolving door and trying to separate the partitions and pin them together."

Page 764

The plaintiff "remained on the defendant's premises for about an hour requesting assistance." The evidence in the case did not warrant a verdict for the plaintiff. Any unsafe condition of the revolving door or of the defendant's premises was not shown to have been caused by negligence of the defendant or to have existed so long that the defendant should have discovered it. The mere fact of the happening of the accident did not warrant a finding that the defendant was negligent. See Hymoff v. Conrad & Co. Inc. 317 Mass. 773 , and cases cited.