Home FRANK CAVANAUGH vs. IRVING CROCKER.

335 Mass. 765

January 31, 1957

Exceptions overruled. This is an action of tort in which the plaintiff seeks to recover for injuries sustained when he fell off the front porch roof of the defendant's premises. In his declaration the plaintiff alleged that his injuries were the result of a defective condition of the roof. The evidence showed that the plaintiff, who had been engaged by the defendant to take off storm windows, was injured in these circumstances. In the afternoon of April 26, 1952, he climbed up a ladder to the roof of the front porch, above which were three windows. In taking off the middle storm window he placed one foot on the sill and felt "a little give," and fell to the ground. A witness for the plaintiff testified that he observed the sill after the accident and it was "rotten . . . dry and dirty" and that the outer edge of it was cracked. At the close of the evidence the defendant presented a motion for a directed verdict "upon the evidence and the pleadings" which was denied. The jury returned a verdict for the plaintiff which was recorded under leave reserved. Thereafter the defendant presented a motion that a verdict be entered in his favor on the ground, among others, that there was a variance between the pleadings and the proof. The plaintiff then moved to amend his declaration by inserting after the word "roof" the words "and window sill." The judge denied the motion to amend and granted the defendant's motion to enter a verdict in his favor, subject to the plaintiff's exceptions. There was no error. In the opinion of a majority of the court there was a fatal variance between the declaration and the proof. Glynn v. Blomerth, 312 Mass. 299 , 301-302. The plaintiff's motion to amend was addressed to the discretion of the trial judge and its denial presents no question of law. Means v. Leveroni, 297 Mass. 61 , 64. We might add that even if the plaintiff had been permitted to cure the variance by an amendment the judge still would have been justified in entering a verdict for the defendant. To recover, the plaintiff had the burden of proving not only that his injury was caused by the defendant's failure to warn of a hidden defect but that the defect was one of which the defendant had knowledge, or in the exercise of reasonable care should have had knowledge, Williams v. United Men's Shop, Inc. 317 Mass. 319 , 320. See Walker v. Benz Kid Co. 279 Mass. 533 . The plaintiff failed to sustain this burden.

Home JOAN ELIOPULOS'S CASE.

335 Mass. 765

January 31, 1957

Decree affirmed. The employee brought this claim for compensation for an injury which she alleged arose out of and in the course of her employment. The single member found these facts: The employee, a high school student aged seventeen, worked in the photography studio of her employer during the summer of 1953. She appeared to like her work and her supervisor. On or about September 3 there was a change of supervisors and the employee had some difficulty with the new supervisor, Mrs. Darra, as Mrs. Darra wanted "things done her way and the employee `was accustomed to doing things'" differently. On September 4 there was "some mixup in the disposition of some money" which had been misplaced and the employee "was apparently scolded," and this

Page 766

upset her. On the following day something was said about the missing money and the employee became very much disturbed, and her father who was notified of her condition took her home where she was treated by a physician. On the following day she was taken to a psychiatrist, Dr. LeBeaux. Subsequently she was admitted to the Worcester State Hospital where her condition was diagnosed as schizophrenia. The single member, citing Charon's Case, 321 Mass. 694 , ruled that mental disturbance unaccompanied by physical impact could be a compensable injury under the compensation act. He found, however, that in the light of the medical history and emotional background of the employee, concerning which there was considerable evidence, her mental illness was not causally related to her employment and that she did not sustain an injury arising out of and in the course of her employment; he dismissed the claim for compensation. The findings and decision of the single member, with a slight clarifying modification, were affirmed by the reviewing board. From a decree of the Superior Court in accordance with the board's decision, the employee appealed. There was no error. Whether the employee sustained an injury arising out of and in the course of her employment was a question of fact for the board. The board's findings, which were amply supported by evidence and were not tainted by error of law, must stand. Griffin's Case, 315 Mass. 71 , 73.