Home LOUIS A. PERRAS, JUNIOR, vs. ROBERT DESMOND.

333 Mass. 768

November 29, 1955

Order denying jury issues affirmed. This is an appeal from an order of the Probate Court denying a motion to frame jury issues in the matter of the proof of the will of Elizabeth M. Desmond. The motion was heard upon statements of expected evidence by counsel for the contestants and by counsel for the proponent. The only issue now argued is that the execution of the will was procured by the fraud or undue influence of Louis C. Dupuis or Rose Dupuis. Considering the whole record and giving the decision of the judge the weight to which it appears to be entitled, we think that there was no error. Fuller v. Sylvia, 240 Mass. 49 . Hannon v. Gorman, 296 Mass. 437 . This is not a case where Louis C. Dupuis and Rose Dupuis were the only beneficiaries, not merely nominal, under the will. Any statements of theirs tending to indicate that they had procured the will by unlawful means would not be evidence of the fact against other legatees. Shailer v. Bumstead, 99 Mass. 112 , 128. McConnell v. Wildes, 153 Mass. 487 , 489. Gorham v. Moor, 197 Mass. 522 , 525. Old Colony Trust Co. v. Di Cola, 233 Mass. 119 , 123. Becker v. Becker, 238 Mass. 362 , 366. McMann v. Murphy, 259 Mass. 397 , 400.

Home LOUIS COMEAU & another vs. DONALD HARRINGTON & another.

333 Mass. 768

November 30, 1955

Exceptions overruled. This is an action of tort for personal injuries and property damage arising out of a collision on a public highway between an unregistered automobile of the female plaintiff operated by the male plaintiff and an automobile of the female defendant operated negligently, but not in a wilful, wanton, or reckless manner, by the male defendant. The judge directed verdicts for the defendants. The plaintiffs excepted, and urge us to overrule the doctrine first enunciated by this court in Dudley v. Northampton Street Railway, 202 Mass. 443 . See Dean v. Leonard, 323 Mass. 606 , 609. The doctrine has been called "unique." 62 Harv. L. Rev. 525. It has been very generally criticised. See, for example, Prosser, Torts (2d ed.) 162; cases collected in notes in 16 A. L. R. 1108, 54 A. L. R. 374, and 163 A. L. R. 1375. As an original proposition, it could hardly find favor with us today. The rule, however, has stood for more than forty-six years without repeal by the Legislature. Some of us would prefer to overrule the Dudley case, but the majority of the court think that its termination should be at legislative, rather than at judicial, hands. Bursey's Case, 325 Mass. 702 , 706-707.

Home HOWARD C. CHADWICK vs. ALFRED DESROCHES.

333 Mass. 768

November 30, 1955

Order dismissing report affirmed. This is an action of tort in which the plaintiff seeks to recover for property damage alleged to have been caused by the negligence of the defendant in colliding with the plaintiff's automobile from behind. Upon undisputed evidence the judge found for the defendant. The plaintiff claimed a report to the Appellate Division which was dismissed, and the plaintiff appealed. The sole question argued was the failure of the judge to act upon certain requests filed by the defendant. The plaintiff filed

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no requests and claimed no exceptions. Since the judge took no action upon the defendant's requests, they must be treated as having been denied. Mitchell v. Silverstein, 323 Mass. 239 , 240-241. Alves v. Boulanger, 329 Mass. 766 . The denial of the defendant's requests in no way harmed the plaintiff. Their denial was not inconsistent with a general finding for the defendant. Godfrey v. Caswell, 321 Mass. 161 , 162. Apparently the only grievance the plaintiff has is that the judge made a general finding for the defendant. This presents no question of law and is not reviewable by the Appellate Division. Muir Brothers Co. v. Sawyer Construction Co. 328 Mass. 413 , 414-415.