Order of Appellate Division vacating finding for the plaintiff and ordering judgment for the defendant affirmed. This is an action of tort to recover for injuries resulting from a fall in the defendant's store due to having slipped on a foreign substance on the floor. The trial judge made a finding for the plaintiff. The case is here upon appeal from the order of the Appellate Division setting aside the finding of the trial judge and ordering judgment for the defendant. Without reciting the evidence, it is enough to say that "[t]here was nothing to show that . . . [the foreign substance] was placed there by anyone for whose conduct the defendant was responsible, . . . nor that it was on the floor for such a length of time that it should have been discovered and removed." Fitzgerald v. Cain's Lobster House, Inc. 334 Mass. 702 -703. Allen v. Albert Zallen Co., Inc. 340 Mass. 785 . Caro v. F. W. Woolworth Co. 342 Mass. 155 , 156-157.
Decree affirmed. This is an appeal from a decree of the Superior Court awarding double compensation under G. L. c. 152, Section 28, as amended through St. 1943, c. 529, Section 9. The decree was based upon a decision by the single member which was affirmed by the reviewing board. The single member found that the employee was working in a restaurant as a waitress; that "the assistant manager
in charge of the restaurant for the employer came up to the employee while she was standing at the fountain in the restaurant waiting for an order and kicked her right ankle with his foot." He told her "she was not supposed to be drinking at the counter and to get back to her customers." The ankle became swollen and she was driven home. Subsequently, she was admitted to a hospital and her ankle was operated upon. The assistant manager was entrusted with and exercised superintendence in behalf of the employer over the injured employee. The injury resulted from the kick. The single member also found that the conduct of the assistant manager "constituted serious and wilful misconduct within the meaning of Section 28." "The findings and decision of the board must be sustained unless lacking in evidential support or tainted by some error of law." Thayer's Case, ante, 36, 39. Hachadourian's Case, 340 Mass. 81 , 85. There was evidence to support the findings of disability, causal relationship, and serious and wilful misconduct. Thayer's Case, supra. Costs of this appeal are to be determined by a single justice under G. L. c. 152, Section 11A. This is a majority opinion.