Home COMMONWEALTH vs. JAMES P. HENRY (and a companion case against the same defendant).

338 Mass. 786

November 6, 1958

Exceptions overruled. The defendant was tried and convicted upon two complaints, one charging him with going away after causing property damage without disclosing his name and address, and the second charging him with operating a motor vehicle so negligently upon a public way as to endanger the safety of the public. Both complaints were based upon G. L. c. 90, Section 24. The jury returned verdicts of guilty on both complaints. The cases are here upon the defendant's exceptions to the refusal of the judge to grant motions directing the jury to return verdicts for the defendant. There was evidence showing that an automobile owned by one Moore, while parked upon a public street in Natick, was struck in the rear by a green colored automobile which immediately departed after the impact. There was evidence that the automobile which struck the Moore automobile bore the registration number of the defendant's automobile; that the right front fender of the defendant's automobile left a deposit of green paint, similar to the color of the defendant's automobile, on the rear bumper of the Moore automobile; that the radiator of the defendant's automobile was hot when the defendant was interviewed by a police officer in about an hour after the accident; that the defendant told the officer that he, and only he, drove the automobile on the afternoon of the accident; and that this officer was of the opinion that during the interview the defendant was under the influence of intoxicating liquor. There was no error in the denial of the motions. The cases are clearly distinguishable from Commonwealth v. Shea, 324 Mass. 710 . The inferences from the entire evidence warranted the jury in finding that the defendant was operating his automobile at the time of the accident. Commonwealth v. DiStasio, 297 Mass. 347 , 360. Commonwealth v. O'Brien, 305 Mass. 393 , 401. Commonwealth v. Ehrlich, 308 Mass. 498 , 500. Commonwealth v. Barker, 311 Mass. 82 , 90-91.

Home PHYLLIS M. BORTHWICK vs. DEVONSHIRE CONCESSIONS, INC.

338 Mass. 786

November 7, 1958

Exceptions overruled. This is an action of tort to recover for injuries sustained by the plaintiff by reason of the alleged presence of a foreign substance in a clam fritter purchased from the defendant and eaten by her. The action was originally in two counts, one for breach of warranty and the other for negligence. The first count was waived and the action was submitted on the negligence count to a jury, who returned a verdict for the defendant. It comes here upon the plaintiff's exception to the denial of her motion for a new trial. There was no error. It would serve no useful purpose to recite the facts upon which the plaintiff relies. There were no requests for rulings on the motion which was based upon grounds that the verdict was against the law, against the evidence, and against the law and the weight of the evidence. We find no abuse of discretion in the denial of the motion for a new trial. See Graustein, petitioner, 305 Mass. 571 , 572; Scano, petitioner, ante, 7.

Home CHARLES J. DONAHOE, SECOND, vs. THEODORE L. MARTIN.

338 Mass. 786

November 14, 1958

Order for judgment affirmed. This is an action of contract to recover from the defendant a broker's commission on the sale of a dwelling house in Lenox. The action was referred to an auditor whose findings of facts were to be final. The auditor found that the defendant agreed to pay the plaintiff as

Page 787

a commission only the sum equal to five per cent of $17,500 if the plaintiff produced a customer able, ready and willing to purchase the premises for at least that sum. He further found that the plaintiff did produce such a customer in the person of one Brooks; that the defendant accepted Brooks as a customer; and that the sale was made to Brooks and his wife for a sum greater than $17,500, namely $18,000. He further found that the plaintiff was the predominant and effective cause of the sale by the defendant to Brooks. He further found that the defendant owed the plaintiff interest on the commission from June 28, 1954. The judge allowed a motion to enter judgment for the plaintiff on the auditor's report. We treat this as an order for judgment and decisive of the case. Louis H. Salvage Shoe Co. v. Keith, 330 Mass. 91 , 93. The defendant's appeal from the order for judgment for the plaintiff brings the action here. G. L. c. 231, Section 96. There was no error. It would serve no useful purpose to recite the subsidiary facts found by the auditor upon which he based his ultimate conclusions which were fully supported by the subsidiary findings. These conclusions required the judge to order judgment for the plaintiff. Stone v. Melbourne, 326 Mass. 372 . Henderson & Beal, Inc. v. Saitz, 327 Mass. 523 . Dillon v. Barnard, 328 Mass. 53 , 58.