Home CHRISTIE CALANTROPIO, petitioner.

331 Mass. 761

September 16, 1954

Appeal dismissed. This is a petition in the Superior Court for a writ of habeas corpus. The writ was denied and the petitioner appealed. We assume that there may be an appeal to this court in habeas corpus proceedings under G. L. (Ter. Ed.) c. 231, Section 96. See Adamsky v. City Council of New Bedford, 326 Mass. 706 . But the only part of that section which could possibly apply here is the provision permitting an appeal from an "order decisive of the case founded upon matter of law apparent on the record." The appeal here is from the "findings and rulings" of the judge. Even if we treat this as an appeal from an "order decisive of the case" the order is not "founded upon matter of law apparent on the record." All that is contained in the purported record here are the pleadings, requests for rulings, and the findings and rulings of the judge. It is settled that requests, findings and rulings are no part of the "record" as that word is used in Section 96. Harrington v. Anderson, 316 Mass. 187 , 191-192. Kane v. Registrars of Voters of Fall River, 328 Mass. 511 , 513, and cases cited. It follows that the case is not properly here.

Home MAURICE DROUGEN vs. RUSSELL P. REDMAN, JUNIOR.

331 Mass. 761

November 2, 1954

Exceptions overruled. This action of tort arises out of a collision on June 2, 1949, between an automobile operated by the defendant and an automobile operated by the plaintiff. The plaintiff had a verdict. The defendant concedes that the evidence would warrant a finding that he was negligent. Following the accident the plaintiff underwent several operations in connection with the removal of his gall bladder. The defendant requested on instruction to the effect that there was no causal relation between the accident and the condition of the plaintiff's gall bladder. The judge did not give this request or the substance of it, and the defendant's exception to this refusal presents the only question for decision. There was no error. A duly qualified medical expert called by the plaintiff testified that in his opinion there was "a definite direct relationship between the accident and what happened to the plaintiff's gall bladder," and gave his reasons for this conclusion. There was medical testimony to the contrary on behalf of the defendant. The question of causal relationship was one of fact and the judge properly left it to the jury.

Home BOSTON SAFE DEPOSIT AND TRUST COMPANY vs. HEGGIE CORPORATION & others. SAME vs. GORDON H. HARNUM.

331 Mass. 761

November 2, 1954

Exceptions overruled. These two actions for damage by fire and smoke to the plaintiff's

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building were tried together. In the first action there are two counts in tort and one in contract. The tort counts against the defendant Heggie Corporation and the defendant Rutledge, respectively, are for negligence in removing a steel storage tank from the basement. The contract count is for breach of contract by Heggie Corporation in the same operation. The second action is in tort against the defendant Harnum for negligence in removing the tank. There were verdicts for the defendants. The plaintiff's only exception in each case is to the denial of its motion for a new trial which was based on the grounds that the verdicts respectively were against the law, against the evidence, and against the weight of the evidence. In the denial of the motions there was no abuse of discretion, much less an abuse of discretion amounting to error of law. These are not among those exceedingly rare instances where the judge's action can be disturbed. Bresnahan v. Proman, 312 Mass. 97 , 101-102. Hartmann v. Boston Herald-Traveler Corp. 323 Mass. 56 , 59-61. Moran v. Pieroni, Inc. 326 Mass. 516 -517. Daddario v. Gloucester, 329 Mass. 297 , 301.