Home WILSON HOUSTON'S CASE.

344 Mass. 754

May 3, 1962

Decree affirmed. The employee brought this claim for compensation for injuries which he alleges arose out of his employment. The single member found these facts: On August 29, 1960, the claimant was working as a chef in a restaurant of the insured. The claimant had an argument with another employee. A bus boy, also employed by the insured, injected himself into the argument. A fist fight between the claimant and the bus boy ensued. After that fight in which "[t]he claimant was worsted" the claimant "picked up an 18 inch, 2-pronged barbecue fork and renewed the fight and assault" on the bus boy. The claimant suffered a stab wound in the back and an injury over his eye. He received hospital and medical treatment for his injuries. The single member found that "when the fist fight ended and claimant renewed the assault he was guilty of serious and willful misconduct" and that the injury to the claimant "did not arise out of the conditions of his employment." The employee's claim for compensation was dismissed. The findings and decision of the single member were affirmed by the reviewing board. From a decree of the Superior Court in accordance with the board's decision, the employee appealed. There was no error. The board's findings were supported by the testimony and were not tainted by error of law. Van Bibber's Case, 343 Mass. 443 , 447.

Home MICHAEL F. COSTELLO vs. KATHRYN E. CONLON.

344 Mass. 754

May 3, 1962

Decree affirmed. The contestant appeals from a decree allowing a will and one codicil, in which Mr. Costello, the decedent's Rhode Island lawyer, was named as executor. There is no report of material facts. The evidence, which is reported, amply supports the conclusions that the decedent had her domicil in Massachusetts at her death on October 26, 1960, when nearly 94, and that she had testamentary capacity in 1957 when the will and codicil were executed. One witness to the codicil had moved to Connecticut and was in poor health. Her testimony was not essential. See Finer v. Steuer, 255 Mass. 611 , 616; Goodwin v. Riordan, 333 Mass. 317 , 318. A finding was justified that there was no undue influence by Mr. Costello, who was bequeathed about $16,000 from an estate of about $114,000. He did not draw the will and codicil and was not shown to have been present when they were signed or discussed. The judge did not order, as requested by the contestant's attorney, the production by Mr. Costello of certain documents which he had delivered to his counsel. The examination by the contestant's attorney of most of the witnesses, including Mr. Costello, was repetitious and unduly prolonged. After a number of warnings about repetition of inquiry and the need of more relevant questions, the judge cut off this attorney's examination of Mr. Costello. In the absence of indication of unexplored relevant areas about which the attorney wished to make inquiry, and where the attorney had

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not taken advantage of all usual opportunities for examination of Mr. Costello and of his counsel with respect to the documents, we cannot say that the judge abused his discretion in restricting the examination as he did.