Home MARGARET M. YOUNG vs. WALTER F. YOUNG.

333 Mass. 767

November 9, 1955

Decree affirmed. This is a libel for divorce alleging cruel and abusive treatment on the part of the libellee, and that he, being of sufficient ability, grossly, wantonly, and cruelly refused and neglected to provide suitable maintenance for the libellant. The judge decreed that the prayer for divorce be denied, that the case be continued on the docket from time to time, and that during such continuance the libellee pay to the libellant the sum of $30 each week for her support. The libellant appealed. The evidence is reported. The judge made no findings of fact, but his decree imports a finding of every fact essential to support it. Attorney General v. Woburn, 322 Mass. 634 , 635. From a careful reading of the evidence we cannot say that the decree entered by the judge was erroneous. The evidence on the issue of cruel and abusive treatment was conflicting. It is only in very clear and exceptional cases -- and this case is not one of them -- that this court will revise the express or implied findings of a trial judge based on conflicting oral testimony. Berry v. Kyes, 304 Mass. 56 , 57-58. Bohaker v. Koudelka, ante, 139, 141. Neither can we say that the implied finding of the judge on the issue of failure to provide suitable maintenance was erroneous. The refusal or neglect to provide which is made a cause for divorce under G. L. (Ter. Ed.) c. 208, Section 1, must be done "grossly or wantonly and cruelly." The judge could have found that such refusal or neglect as was established here fell short of the requirements of the statute. Peabody v. Peabody, 104 Mass. 195 . Holt v. Holt, 117 Mass. 202 . Keenan v. Keenan, 219 Mass. 107 .

Home EVANGELINE POLICRONIS vs. JORDAN MARSH COMPANY.

333 Mass. 767

November 9, 1955

Judgment for the defendant. This is an action of tort for personal injuries resulting from a fall on the steps leading to the entrance to the defendant's store at 450 Washington Street, Boston. It comes here upon a report of a judge after granting a written request of the defendant for a ruling of law that "the evidence does not warrant a finding for the plaintiff." G. L. (Ter. Ed.) c. 231, Section 111. There was evidence for the plaintiff as follows: On January 17, 1951, at twelve o'clock noon the plaintiff entered the store of the defendant to make some purchases. She observed that the steps leading to this entrance were covered with "mud and slime" and that many people were entering and leaving the store through this entrance. The street and sidewalk outside the store were wet and muddy and there was some snow piled up along the sidewalk. On that day the weather was fair but it had snowed previously. She left the store at about 2 P.M. and as she started down the steps over which she had entered she slipped and fell on the "mud and slime" and was injured. When she left the store the steps were completely covered with "mud and slime" and were in worse condition than when she entered. There was no error in granting the request. "There was nothing to show any more mud or water than inevitably results from the tramping of many feet in such a place at that time of day under the conditions of weather then existing . . . there was no

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evidence of the defendant's negligence." Moors v. Boston Elevated Railway, 305 Mass. 81 , 82-83. Grace v. Jordan Marsh Co. 317 Mass. 632 .