Home JACOB SCHWARTZ'S CASE.

341 Mass. 736

January 3, 1961

Decree affirmed. A decree of the Superior Court adjudged that a condition or disease known as bilateral Dupuytren's contracture, from which the claimant suffered, did not arise out of and in the course of his employment as an upholsterer, and the claim for compensation was dismissed. The claimant appealed. The decree was based upon a decision by the single member which was affirmed by the reviewing board. The rather general findings set forth in the decision were amply supported by the evidence and must stand, because different findings are not required as a matter of law. Griffin's Case, 315 Mass. 71 , 73.

Home ANNA RILEY vs. NATIONAL PNEUMATIC CO., INC.

341 Mass. 736

January 3, 1961

Exceptions overruled. There was no error in denying a motion to dismiss nor in denying a motion for a directed verdict in this action of tort for personal injuries commenced December 1, 1958. The motion to dismiss was filed and presented to the judge at the time of trial before the introduction of any evidence. It was late under Rule 25 of the Superior Court (1954). It was based on matter not apparent on the face of the record. Graustein v. Boston & Maine R.R. 304 Mass. 23 , 25. Commissioner of Corps. & Taxn. v. Aetna Life Ins. Co. 328 Mass. 404 , 409. It raised issues of fact outside the record which were controverted. See Furlong v. Cronan, 305 Mass. 464 , 465. It was not offered then or later in the trial as an amendment to the answer and the judge was not obliged to treat it as such. See Desmond v. Boston Elev. Ry. 319 Mass. 13 , 16. As to the denial of the motion for a directed verdict it is sufficient to say that the pre-trial order and the evidence warranted the jury in finding that (a) the defendant was in control of the premises concerned including the sprinkler system; (b) the defendant knew that a leak in the sprinkler system caused water to drip, spatter, and form a pool which made the linoleum floor slippery; (c) a reasonable opportunity to repair the leak properly was not availed of; and (d) the plaintiff was injured when she slipped in the "spatters" of water around "the puddle" while carrying a tray of milk containers. The contributory negligence of the plaintiff was a question for the jury.

Home GRACE EPISCOPAL CHURCH OF NEW BEDFORD vs. LLOYD NICHOLS & others.

341 Mass. 736

January 9, 1961

Decree affirmed. Costs and expenses in the Probate Court and of the appeal may be allowed to the petitioner out of the principal of the fund prior to its application cy pres. A house was

Page 737

devised to the church by the will of Mattie A. Haskins, "as a memorial to . . . [her] late nephew." She also bequeathed by the same article of the will $7,000 to the church "as a permanent fund . . . for the payment of taxes and repairs" upon the house. The house could not be used for church purposes and was leased until rental use also became impracticable. With the consent of the person entitled to the residue of the estate, the proceeds of the sale of the house have been applied for general church purposes. The devise shows a general charitable intent. The $7,000 bequest was in support of the devise. The probate judge, under the doctrine of cy pres, correctly decreed application of the $7,000 fund for the general purposes of the church, with an appropriate provision for perpetuating the fund's memorial aspect.