343 Mass. 779

February 15, 1962

Exceptions overruled. The female plaintiff, a customer in a provision market, was cut by shattered glass from an exploded bottle of carbonated beverage. The defendant in this action of tort was engaged in the business of bottling and selling soft drinks, some of which were on sale at the market. If it be assumed that the exploded bottle came from the defendant, a verdict was nevertheless rightly directed for it. Even if the excluded answers to interrogatories had been admitted (compare Falzone v. Burgoyne, 317 Mass. 493, 498), the plaintiff did not satisfy the burden of showing that there had been no mishandling after the bottle left the control of the defendant. Evangelio v. Metropolitan Bottling Co. Inc. 339 Mass. 177, 183.

The case was submitted on briefs.


343 Mass. 779

February 16, 1962

Appeal dismissed. On September 18, 1957, the defendant, who was represented by counsel, pleaded guilty to an indictment charging robbery while armed. Thereupon, a sentence of not more than fifteen years nor less than twelve years at the Correctional Institution at Walpole was imposed. The defendant at that time was notified of his right to request leave to appeal to the Appellate Division (G. L. c. 278, Sections 28A-28D, inserted by St. 1943, c. 558, Section 1, as amended) on the matter of sentence, but he never exercised that right. On April 3, 1961, more than three and one half years later, the defendant filed in the Superior Court a motion for a copy of the transcript and a motion for the waiving of filing fees. Both motions were denied and the defendant appealed. G. L. c. 278, Section 28. The appeal is not properly here, for it is not from a "judgment . . . founded upon matter of law apparent upon the record."


343 Mass. 779

March 7, 1962

Decree affirmed. The Superior Court properly recommitted this claim for further compensation to the Industrial Accident Board for more helpful findings on specified issues. The further findings rested largely on testimony of a doctor, who saw the employee only once. He described the employee's disability, and

Page 780

expressed the opinion that there was causal relationship between an injury sustained on April 30, 1956, and such disability. From a doctor who treated the employee for a considerable period of time, there was persuasive evidence that there was no such causal connection. We are unable to say, however, that the further findings, as matter of law, were either an inadequate compliance with the recommittal order, or unwarranted by the conflicting opinion evidence, which it would serve no useful purpose to recite in detail. An agreement for compensation for the period April 30 to July 16, 1956, did not preclude further compensation. MacKinnon's Case, 286 Mass. 37, 38-39. The insurer may seek other relief if disability has now terminated. Silbovitz's Case, ante, 372, 374. Costs of this appeal are to be determined by the single justice.