Home EDWIDGE E. PETERS'S CASE.

345 Mass. 758

October 31, 1962

Decree affirmed. The employee worked for Mount Holyoke College as an assistant cook. She was required to live in Torrey Hall, the dormitory where she worked. Employees were encouraged to attend church services, and no deduction in pay was made for the time spent in attending church. On Sunday morning, January 27, 1957, the employee and other employees left Torrey Hall to attend church. While walking down a flight of steps from the public sidewalk to the public street (which ran through the campus of the college) the employee slipped and was injured. After finding the foregoing facts, the reviewing board concluded that the injury did not arise out of and in the course of the employment and denied compensation. A decree in accordance with this decision was entered by the Superior Court, from which the employee appealed. There was no error. Whether the employee's injury arose out of and in the course of her employment was essentially a question of fact. The conclusion of the board that it did not cannot be said to be erroneous as matter of law. Bedore's Case, 339 Mass. 639 . See Simmons's Case, 341 Mass. 319 .

Home AMERINO FAGIOLI vs. PHILIP SANTANGELO & another.

345 Mass. 758

October 31, 1962

Exceptions overruled. The petitioner excepts to an order of a judge of the Superior Court denying his "Motion for Leave to File Annexed Substitute Bill of Review." Previously a demurrer to his "Bill of Review as Amended" had been sustained with leave to file a further amendment within ten days. But the petitioner was not entitled as of right to the allowance of the motion to amend. This case is governed by Reubens v. Boston Fed. Sav. & Loan Assn. 342 Mass. 483 , 484-485, which was a petition for a writ of review, an analogous proceeding. The allowance of the petition was discretionary. Bosse v. Leonard & Barrows Shoe Co. 343 Mass. 207 , 209. No abuse of discretion appears.

Home WAYNE HAMILTON vs. JOHN J. L. SULLIVAN & another (and a companion case [Note 1]).

345 Mass. 758

November 1, 1962

Exceptions sustained. Judgments for the defendant John J. L. Sullivan. Hamilton, a minor, seeks to recover

Page 759

for injuries suffered by him as a guest in an automobile operated by the minor defendant (Sullivan) and owned by Sullivan's father for whom verdicts were directed. Hamilton's mother, Mrs. Rogerson, asks consequential damages. There was evidence that the boys were returning home from a basketball game on a clear, dry July night about 10:30 P.M., that Sullivan was tired, and that he was overcome by sleepiness, which caused the accident. He showed signs of drowsiness a few minutes before the accident but thereafter successfully turned into the street where the accident took place at a point within 500 feet of the corner. He was then about a five minutes' drive from his home. The automobile swerved and hit a tree at a time when, on conflicting evidence, it could have been found that Sullivan's "eyes were closed" and his "hands off the wheel." The evidence need not be stated in detail. In the aggregate, it does not show "shocking indifference to safe driving" (see Lalumiere v. Miele, 337 Mass. 339 , 341) or an "aggravated degree of culpability" (see Bagley v. Burkholder, 337 Mass. 246 , 248), or conduct "so long continued, serious, deliberate, and persistent" (see Shepard v. Roussel, 341 Mass. 730 ) as to constitute gross negligence. If Sullivan closed his eyes just prior to the accident, such action (in the context of this record) appears to have been involuntary. The case is governed by Flynn v. Hurley, 332 Mass. 182 , 185-186, and McNair v. Fraher, 336 Mass. 458 , 459, rather than by Moore v. Patrone, 298 Mass. 198 , 200, Carvalho v. Oliveria, 305 Mass. 304 , 305-306, Belletete v. Morin, 322 Mass. 214 , 216-217, and Mullaney v. White, 329 Mass. 464 , 465-466. Sullivan's motions for directed verdicts and for verdicts under leave reserved should have been granted.


FOOTNOTES

[Note 1] The companion case is by Ethel Rogerson against the same defendants.