Home JAMES H. KELLY vs. BERTRAM W. MAHONEY.

329 Mass. 765

October 29, 1952

Defendant's exceptions overruled. The plaintiff had a verdict in this action of tort for alleged negligence resulting in personal injury to the plaintiff. The defendant excepted to the denial of his motion for a directed verdict in his favor. The defendant on July 20, 1949, a clear day, in the late morning, was operating an automobile southerly on North Street in Pittsfield, which was seventy-seven feet wide, exclusive of sidewalks. The plaintiff, a pedestrian, was crossing North Street from west to east, and had nearly reached the center of the street when the defendant hit him. There was evidence that just before the accident the defendant was looking to the east, and that there was no traffic in the street. The plaintiff testified that before crossing he looked to the north. There was evidence that the defendant did not see the plaintiff until an instant before the accident. The defendant does not contend that there was no evidence of his negligence, but contends that the plaintiff was guilty of contributory negligence. The burden of proving contributory negligence was on the defendant. G. L. (Ter. Ed.) c. 231, Section 85, as appearing in St. 1947, c. 386, Section 1. The plaintiff could rely to some extent upon careful conduct by the defendant. Hennessey v. Taylor, 189 Mass. 583 . Emery v. Miller, 231 Mass. 243 . Sooserian v. Clark, 287 Mass. 65 . Clouatre v. Lees, 321 Mass. 679 , 681. McComb v. New England Transportation Co. 325 Mass. 221 , 223. Ferguson v. Worth, 326 Mass. 336 , 339. In our opinion the case was properly submitted to the jury.

Home JOHN A. NELON vs. VERONICA O'CONNOR NELON (and a companion case).

329 Mass. 765

November 3, 1952

Decree affirmed in each case. These were cross libels for divorce. After a hearing the judge entered a decree dismissing the libel of the husband and a decree nisi of divorce to the wife for the cause of cruel and abusive treatment on the part of the husband. In the decree nisi he awarded custody of the minor child to the wife and ordered payments by the husband for support of said child. The husband appeals from both decrees. The evidence is fully reported without any findings by the judge. It has been repeatedly said that the entry of a decree imported the finding of every fact necessary to support it. We need not recite the evidence which was conflicting. The decrees rested largely upon the testimony of the witnesses, including both parties, whom the judge saw and heard. We cannot say that the judge was plainly wrong. The record discloses no error of law or fact. Levanosky v. Levanosky, 311 Mass. 638 , 639.

Home DOROTHEA D. LORETI & others vs. GERALD M. CALLAHAN, INCORPORATED.

329 Mass. 765

November 3, 1952

Order sustaining demurrer affirmed. Final decree dismissing the bill affirmed with costs. This is a suit in equity by twenty-one plaintiffs against the defendant for specific performance of twenty-one separate building contracts between each plaintiff and the defendant. The defendant filed a demurrer on the ground, among others, that the bill is multifarious. On appeal all grounds of a demurrer are open. Monach v. Koslowski, 322 Mass. 466 , 468. We need consider none of the other grounds stated for it is plain that the bill is multifarious. The several causes of action set forth in the bill involve different sets of facts for "many of the houses" with which the contracts of the defendant were concerned. No one of the plaintiffs in the bill had any interest in the contracts referred to in the bill other than his

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own contract with the defendant. The several contracts were made at different times and the duty of the defendant to each of the plaintiffs is owed separately and not jointly. "Bills are commonly held to be multifarious where the different parties assert rights arising from separate transactions not having a common origin, not bound together by any connecting link, not susceptible of being redressed by similar relief, and not displaying community of interests." Laverty v. Associated Gas & Electric Securities Co. Inc. 300 Mass. 79 , 82. In the present suit the only thing which the plaintiffs had in common was a claim against the defendant based on breaches of their respective contracts, some on similar grounds and some on different grounds. Avoidance of multiplicity of suits is not enough to warrant a joint suit. Rogers v. Boston Club, 205 Mass. 261 , 266. Laverty v. Associated Gas & Electric Securities Co. Inc. 300 Mass. 79 , 82.