Home HERMAN CLANCY vs. R. O'BRIEN & CO., INC.

345 Mass. 772

February 4, 1963

Exceptions overruled. One Nickerson, employed by the defendant (O'Brien), lent a tractor, with a rope on it, to one Furello, employed by The Great Atlantic and Pacific Tea Company (A & P), to enable him to obtain from another part of a pier carts, to be furnished by A & P, in which fish purchased from O'Brien by A & P were to be placed. Furello attached two carts to the tractor. The second cart, attached to the first by the rope, came loose when the rope broke. The cart injured the plaintiff. There was a verdict against A & P in a case arising out of the same accident. An auditor made very detailed findings that Nickerson in effect knew the purpose for which the tractor and rope were to be used and knew that the rope was not "safe . . . to use to attach . . . carts." Nickerson died before the auditor's hearings. Although it is argued that these findings about a dead man's knowledge are unreasonable, the record affords no basis for testing whether they were warranted. Despite the fact that it was A & P's duty to furnish the carts, there was possible advantage to O'Brien in the loan of the tractor which might expedite the unloading of O'Brien's boat. Cf. Epstein v. Simco Trading Co. Inc. 297 Mass. 282 , 283-284; Magro v. Byington, 344 Mass. 255 , 257. We cannot say that the auditor could not conclude that Nickerson, having the knowledge thus charged to him, was negligent in lending an "instrumentality likely to injure third persons," thus participating with Furello in creating an unreasonable and foreseeable risk of harm from Furello's acts. The trial judge was not required (1) to strike under G. L. c. 221, Section 56, either the auditor's finding of negligence or his entire report, or (2) to direct a verdict for O'Brien. Relevant principles are stated in Lane v. Atlantic Works, 111 Mass. 136 , 139-140, Mitchell v. Lonergan, 285 Mass. 266 , 270-271, Flaherty v. New York, N. H. & H. R.R. 337 Mass. 456 , 459, 462, and Smith v. Eagle Cornice & Skylight Works, 341 Mass. 139 , 141-142. Cf. Horan v. Watertown, 217 Mass. 185 , 186; Sullivan v. Griffin, 318 Mass. 359 , 361-362.

Home BARBARA A. REARDON vs. DANIEL J. REARDON.

345 Mass. 772

February 4, 1963

Decree affirmed. The libel alleged cruel and abusive treatment and gross and confirmed habits of intoxication. The evidence is not reported but the probate judge filed a report of material facts. He found no cruel and abusive treatment and further found that the libellee was "a good father, a good husband, a good provider, a steady, sober worker and anything but an habitual drunkard." The judge's findings of fact must be taken as true in every respect unless the general findings are inconsistent as a matter of law with particular findings. Quigley v. Quigley, 310 Mass. 415 , 416. There is no inconsistency here. The burden was on the libellant to prove the allegations of her libel. Hamilton v. Hamilton, 325 Mass. 278 , 280. This she did not do.

Home CHARLOTTE A. BUTTERS vs. HARRY BUTTERS.

345 Mass. 772

February 5, 1963

Decree affirmed. This is a petition for modification of a decree entered in divorce proceedings on March 12, 1953, and subsequently modified on several occasions prior to the filing of the present petition. In this petition are sought new arrangements for the custody of two minor children and an

Page 773

order that "the respondent . . . listen to . . . [certain] tape recordings so that the best interests of said children may be served." The evidence is reported and while the judge made no report of material facts the petition was dismissed after hearing and is here on appeal. The petition is but the latest in a series filed since March 12, 1953. The children involved were seventeen and fifteen years old at the time of the hearing. The decree which the petitioner seeks to modify provides for "visitations only on agreement as to time and place by said children and their father Harry Butters." This decree, itself a modification of the original one, was entered on December 20, 1961, and was preceded several months before by the filing of a complete report by an investigator assigned to report all circumstances bearing upon the custody of the two children. Questions of fact and law are open here for decision according to our judgment with due weight being accorded to the finding of the trial judge which is not to be reversed unless plainly wrong. Grandell v. Short, 317 Mass. 605 , 608. Allen v. Allen, 326 Mass. 214 , 216. Stevens v. Stevens, 337 Mass. 625 , 627. There is no indication here that the judge was other than plainly right. The ruling on the tape recording reveals no error of law.