Home JOHN F. REYNOLDS & another vs. ANNA FARLEY & another.

344 Mass. 749

March 29, 1962

Decree affirmed. There was no error in denying the motions for jury issues. The judge could give weight to the affidavits of two witnesses, one the lawyer who drew the will and was named an executor thereof, which, if believed, showed due execution of the will. He evidently did not deem of offsetting significance, and we do not, the statement, based on signed writings of the third witness and of the layman witness whose affidavit was in evidence, that the contestants expected to have evidence of invalid execution.

Home JAMES B. SULLIVAN vs. BOSTON FUEL TRANSPORTATION, INC. & another.

344 Mass. 749

March 30, 1962

Exceptions overruled. This is an action of tort brought pursuant to the Jones Act, 46 U. S. C. Section 688 (1958), for personal injuries sustained by the plaintiff while serving as a member of the crew of a coastal oil tanker. The only evidence before the judge was the auditor's report. The plaintiff and defendants filed motions for judgment on the auditor's report. The plaintiff's motion was granted and the defendants' motion denied. The auditor found that a fellow crew member of the plaintiff was negligent. In cases involving an action under the Federal Employers' Liability Act, the provisions of which are made applicable to actions under the Jones Act (see Schulz v. Pennsylvania R.R. 350 U.S. 523, 524), the Supreme Court of the United States has made it clear that the Federal rule, here applicable, requires sustaining a finding for the plaintiff if "employer negligence played any part, even the slightest, in producing the injury . . . for which damages are sought." See Rogers v. Missouri Pac. R.R. 352 U.S. 500, 506-507; Keough v. Cefalo, 330 Mass. 57 , 60; Rankin v. New York, N. H. & H. R.R. 338 Mass. 178 , 182. The findings in the auditor's report were sufficient to satisfy the Federal rule.

Home JULIA E. MARCUS & another vs. COUNTY COMMISSIONERS OF NORFOLK.

344 Mass. 749

March 30, 1962

Order sustaining demurrer affirmed. Judgment for the respondents. The petitioners appealed from an order sustaining a demurrer to a petition for a writ of mandamus. The petitioners, residents of the town of Sharon, sought to compel the respondents, as commissioners of the county of Norfolk, to complete construction of a public way in Sharon. The petition alleges that the respondents "by return and order of [t]aking, dated July 17, 1956, did relocate Bay Road" and ordered the town to "relocate, build and construct said highway on or before July 17, 1961," and that the town "has failed to construct said highway within the time prescribed" and "it is now the duty of the . . . [c]ounty [c]ommissioners to complete said highway." The petitioners contend that by virtue of G. L. (Ter. Ed.) c. 82, Section 8, the commissioners have "no discretion left to them." In support of this contention the petitioners rely on the cases of Richards v. County Commrs. of Bristol, 120 Mass. 401 , and Metcalf v. Mayor & City Council of Boston, 158 Mass. 284 . These cases were decided under statutes materially different than those now in force. See G. L. (Ter. Ed.) c. 82, Sections 8, 14. Under the provisions of these sections if, after a highway has been laid out by the commissioners, the town whose duty it is to make such highway does not complete the same within the

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time specified, the commissioners "may forthwith cause such highway to be completed." The respondents "may" complete the construction of the highway but are under no legal duty to do so. It rests within their discretion. Wojnar v. County of Worcester, 261 Mass. 99 , 102. There was no error in sustaining the demurrer.