Home LEONARDO C. LODIGIANI & another vs. RAYMOND E. POTTER & another.

341 Mass. 727

November 2, 1960

Exceptions overruled. The plaintiffs in their brief argue only questions related to a count alleging deceit. The case is here on the plaintiffs' exceptions to the denial of a request for a ruling and to the allowance of the defendants' motion for judgment on an auditor's report finding generally for the defendants on all counts. The exception to the denial of a requested ruling has no standing, for the auditor's findings were to be final. See Levine v. Lawrence & Co. Inc. 305 Mass. 210 , 211. The auditor found that an agent for the defendants, vendors of vacant land, stated to the plaintiffs, prospective purchasers, that the lot "would be suitable property for . . . a residence and that the plaintiffs could obtain a permit." After water percolation tests, the building inspector restricted use of the lot to "a house with no cellar." The auditor found that "no representations were made . . . which were false and material" with the intention that the plaintiffs rely on them. No subsidiary finding of the auditor leads us to infer (see United States Fid. & Guar. Co. v. English Constr. Co. 303 Mass. 105 , 108-109) that the statement of the agent meant that the lot would be suitable for a house with a cellar. We conclude, as did the auditor, that there was no actionable misrepresentation.

Home FRANK GASZKOWICZ'S CASE.

341 Mass. 727

November 2, 1960

Decree affirmed. The employee claimed workmen's compensation benefits because of a ruptured intervertebral disc. His duties required him to do "a certain amount of lifting" of heavy objects. While at work in May, 1957, he felt pain in his hip. The pain increased and he eventually underwent an operation for a ruptured disc. There had been similar occurrences of pain in earlier years. Upon somewhat conflicting and confused medical testimony, the single member, whose findings were adopted by the reviewing board, was "unable . . . to find that the . . . ruptured . . . disc was an injury arising out of and in the course of" the employment. The findings, which have support in the evidence, must stand. Sarkes's Case, 336 Mass. 736 , 737-738. Clarici's Case, 340 Mass. 495 , 497-498. This is true even if different findings might also have been permissible upon this record. See Hartman's Case, 336 Mass. 508 , 511. Cf. Hachadourian's Case, 340 Mass. 81 , 85. We perceive nothing in the decision of the single member which indicates that, in determining whether the disability arose out of the employment, he applied principles inconsistent with our earlier decisions. See Charon's Case, 321 Mass. 694 , 696; Brzozowski's Case, 328 Mass. 113 , 115.

Home JOSEPH A. GREGOIRE vs. FRANCES O'LEARY.

341 Mass. 727

November 2, 1960

Exceptions overruled. The declaration in this action of tort contains two counts. In the first, the plaintiff seeks damages for personal injuries; in the second, he seeks to recover for property damage to his automobile. At the trial the judge ordered a verdict for the defendant on both counts, subject to the plaintiff's exception. The plaintiff now presses his exception only with respect to the count for personal injuries. The defendant concedes that on August 23, 1956, her automobile came into contact with an automobile driven by the plaintiff in circumstances that would warrant a finding that the defendant was negligent and that the plaintiff was in the

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exercise of due care. The sole question is whether the plaintiff sustained the burden of proving beyond conjecture that the injuries which he claimed to have suffered were causally related to the collision. We are of opinion that he did not. The evidence here fell short of that in McAuliffe v. Metcalfe, 289 Mass. 67 , Comeau v. Beck, 319 Mass. 17 , and Josi's Case, 324 Mass. 415 , on which the plaintiff relies. Since the plaintiff's case is grounded on negligence he would not be entitled to nominal damages, and, actual damage attributable to the accident not having been established, the judge rightly ordered a verdict for the defendant. See Daniels v. Celeste, 303 Mass. 148 , 152.