See "brief statement of the grounds and reasons of the decision" in a companion case, decided herewith.
Order denying jury issues affirmed. This is an appeal from an order denying a motion by contestants of the will of Dolores Mendez Francis, late of New Bedford, for the trial by jury of the issues whether (1) the will was legally executed, (2) the testatrix was of sound mind, and (3) the instrument was procured by the fraud and undue influence of the proponent, Anna K. Foye. Statements by counsel of expected evidence fail to show adequate ground for a reasonable expectation of a result favorable to the contestants. Spilios v. Bouras, 337 Mass. 176 , 177, and cases cited. There was no evidence of improper execution and no medical evidence of unsound mind. While the proponent was made residuary legatee, it was as trustee for her daughter and the claim of undue influence was based on mere suspicion, surmise and conjecture. Neill v. Brackett, 234 Mass. 367 , 370. Cummins v. McCawley, 241 Mass. 427 , 430. Johnson v. Loring, 267 Mass. 310 , 312. O'Brien v. Collins, 315 Mass. 429 , 439-440.
The decree is to be modified by striking out the affirmance of the decision of the reviewing board, and by dismissing the claim, and as so modified it is affirmed. The employee appeals from a decree of the Superior Court ordering that the "decision of the reviewing board be affirmed." The decree is erroneous in form. Johnson's Case, 242 Mass. 489 , 493-494. Webb's Case, 318 Mass. 357 , 358. The reviewing board had affirmed and adopted the finding of the single member that the "employee has failed to prove by a fair preponderance of evidence that he suffered a personal injury arising out of and in the course of his employment," and denied the claim for compensation. The decision of the board was untainted by error of law and resolved the facts against the employee. The denial of the motion to recommit was discretionary.
Exceptions overruled. At the trial of this action of tort there was evidence that on July 3, 1950, the plaintiff visited an amusement park operated by the defendant; that she purchased a ticket to enter a so called Fun House in the park; and that while in the Fun House she was injured while being conveyed on an amusement device called the Magic Carpet. The details of the device and the accident need not be recited. The jury returned a verdict for the defendant. Thereafter, the plaintiff presented a motion for a new trial on the grounds that the verdict was against the evidence, the weight of the evidence, and the law. This motion was denied. At the hearing on the motion the plaintiff presented nine requests for rulings, of which two were granted and seven were denied. To the denial of these requests and of her motion, the plaintiff excepted. There was no error. The granting or refusal of a new trial on the grounds set forth in the motion rested in the sound discretion of the judge. Kinnear v. General Mills, Inc. 308 Mass. 344 , 348. The denial of the seven requests for rulings likewise reveals no error. All of these, in one form or another, requested the judge to rule that the defendant was negligent
as matter of law. Whether or not the defendant was negligent was a question of fact.