339 Mass. 776

June 9, 1959

Order of Appellate Division affirmed. The single question at the trial was whether an oral contract for the purchase of pigs from the plaintiff was for $4,900, as the defendant contended, which was admittedly paid upon delivery of the animals, or whether the contract was for a higher price, as the plaintiff contended, leaving a balance due. The judge adopted the plaintiff's version and found for him. The defendant filed a motion for a new trial which was denied on April 15, 1958. He also filed a draft report which was dismissed on May 22, 1958. The defendant then brought the present petition to establish his draft report, and has appealed from an order of the Appellate Division dismissing his petition. In the first place, the denial of his motion for a new trial does not appear to raise any issues of law or of abuse of discretion on the part of the trial judge and so is not a proper subject of report to the Appellate Division. See Bartley v. Phillips, 317 Mass. 35 , 42-43; Hartmann v. Boston Herald-Traveler Corp. 323 Mass. 56 , 60-61. Secondly, the defendant has mistaken his remedy. He was entitled to a disposition of the questions of law involved in the dismissal of his report by a report to the Appellate Division for a review of that dismissal, and not by a petition to establish a report of alleged errors in rulings made at the trial. Gallagher v. Atkins, 305 Mass. 261 , 264. Haines Corp. v. Winthrop Square Cafe, Inc. 335 Mass. 152 .


339 Mass. 776

June 18, 1959

Decree affirmed. The employee contends that a dormant tuberculosis was activated by his work in a meat packing plant in the course of which he was subjected to sudden and marked changes of temperature. See Mercier's Case, 315 Mass. 238 , 241. There was evidence that he was in good health until about August 1, 1953, when he had a chill. He left his employment on August 14, suffering from acute, active tuberculosis, and shortly thereafter was hospitalized. His claim for compensation was filed on September 14, 1954. There was testimony by a medical expert who examined him in August, 1954, that tuberculosis is an infectious and contagious disease and assuming that the employee had it in a dormant state there could have been a lessening of his general health because of working conditions, which resulted in an activation of his infection. A single member of the Industrial Accident Board found that the employee had failed to "sustain the burden of proof" that the disease was "caused or aggravated"

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by his employment; that "the employer had no knowledge that the employee was suffering from any illness that might have been caused by his employment"; and that "the insurer was prejudiced by lack of seasonable notice and claim." These findings were affirmed and adopted by the reviewing board. A decree was entered in the Superior Court dismissing the claim and the employee appealed. There was no error in the findings and no need to remand the case to the board. Schena's Case, 329 Mass. 767 .