Home RAYMOND L. PUGH'S (dependent's) CASE.

344 Mass. 763

June 22, 1962

Decree dismissing libel affirmed. This is an appeal by the claimant mother from a final decree of the Superior Court dismissing the claim for compensation for the death of her son. The decree was based upon a decision by the single member which was affirmed by the reviewing board. The single member found that the deceased was employed by the insured lessee of a ballroom as a "part-time janitor whose sole duty . . . was to clean up the ballroom after dances which were held weekly on Friday and Saturday nights"; that the deceased was furnished, at his request, a small room in the basement of the building which he occupied as his home; that there was no dance on Friday, April 15, 1960, it being Good Friday, but one was held the next evening, April 16, 1960; that neither the employer nor his floor manager had seen the deceased on Friday or Saturday; and that the deceased was found on the evening of April 16, between 11:00 and 11:30 P.M. lying fully clothed on the floor of his room. His death on April 17, 1960, was caused by a "rupture of aorta hemopericardium." The single member also found that the "claimant has failed to prove that the case is one coming within the provisions of [G. L. c. 152] Section 7A" and that she failed to establish her claim of dependency. There was no error. There was substantial evidence that the claim did not arise out of or in the course of the deceased's employment and, therefore, the statutory presumption of Section 7A has no application. LeBlanc's Case, 332 Mass. 334 , 337. Furthermore, there was no evidence that the claimant was wholly or partially dependent on the deceased for support. Hoehn's Case, 326 Mass. 509 , 510-511.

Home ROBERT B. BURNHAM vs. SHEILA B. BURNHAM.

344 Mass. 763

June 22, 1962

Decree dismissing libel affirmed. Decree dismissing petition to vacate decree affirmed. This is an appeal from a decree dismissing a libel for divorce for cruel and abusive treatment and an appeal from a decree dismissing the libellant's petition to vacate the decree dismissing the libel. The evidence is reported. The judge made a report of material facts. From an examination of the evidence it appears that the findings of the judge were based on conflicting oral testimony. We cannot say that they are plainly wrong. Whitney v. Whitney, 325 Mass. 28 . Young v. Young, 333 Mass. 767 . The petition to vacate the decree was based on the disappearance of a letter written by the libellee and introduced at the trial. The libellant contends that the letter "confesses a course of conduct consistent with the testimony of the libellant"; that because the letter was lost sometime during the trial it was not considered by the judge when the decision was made or when the report of material facts was filed; that this is attested to by the omission of any reference to the letter in the report of material facts; and that "[t]his circumstance was aggravated by the fact that . . . the report . . . was not filed until almost five months after it was requested." The judge stated that he read the letter when it was introduced and that the decree dismissing the libel was made three days later. We have read a copy of the letter which is reproduced in the record. We do not believe that the omission of any reference to the letter in the judge's

Page 764

report is any indication that he did not give the letter full consideration. Although the report of material facts was not filed within the time prescribed by Rule 12 of the General Rules of the Supreme Judicial Court (1952), as amended, 340 Mass. 789 , we do not think that the delay in filing constitutes a ground for vacating the decree.