Home FLORENCE ATCHUE & another vs. CHAPIN W. ILLINGWORTH.

347 Mass. 768

April 2, 1964

Exceptions overruled. During their deliberations in the retrial under G. L. c. 231, Section 102C, of this action, and a companion case which is not before us, arising from the collision of two motor vehicles, the jury asked the judge, "If negligence is found on both parties, how do we sign the Counts?" The judge, in the absence of counsel, alluded to his original instructions, to which no exception had been taken, and concluded, "[I]f all parties are found to be negligent, then you must find for the defendant in all cases." Exceptions to the supplementary instructions were taken by the nonoccupant owner of one of the vehicles who sought property damage and consequential damages, and by his wife, a passenger, who claimed personal injuries. The bill of exceptions does not show reversible error. The jury were not required to find that the owner was the bailor of the vehicle, or that his wife was in the exercise of due care, or to believe that she had sustained personal injuries or had received medical treatment.

Home JOHN ALBERT PADYKULA vs. ZELIA KATHERINE MARCHEWSKA PADYKULA (and a companion case [Note 1]).

347 Mass. 768

April 2, 1964

At the close of the libellant's evidence on John Padykula's libel for adultery, the libellee moved to dismiss. The judge granted the motion saying "Based on all the evidence . . . [for] the libellant, even if I believed it, I see no situation of adultery. Your own investigator saw nothing but kissing and hugging in a public place." John relies particularly on the testimony of the investigator that he had observed the libellee and the corespondent in a compromising position in an automobile late in the evening parked in a dark area of a parking lot of a roadside restaurant. We assume that this testimony justified an inference which, with other testimony, would have supported a finding of adultery. Thayer v. Thayer, 101 Mass. 111 , 113. Mountford v. Mountford, 179 Md. 697 (no opinion printed; for opinion see 19 Atl. 2d 178). The judge's statement, however, shows that he did not draw the inference. We cannot hold that his failure to do so was plainly wrong. In the absence of the inference it was not error to rule that John had not sustained the burden of proof. See Thayer v. Thayer, 101 Mass. 111 , 113; Colby v. Colby, 337 Mass. 774 . There was evidence of John's cruel and abusive treatment. The decree of divorce on Zelia's cross libel for cruel and abusive treatment and the decree dismissing John's libel for adultery are affirmed.


FOOTNOTES

[Note 1] The companion case is by Zelia Katherine Marchewska Padykula against John Padykula.

Home ISABELLA BOHMAN, petitioner.

347 Mass. 768

April 2, 1964

Decree affirmed. This is an appeal by the petitioner from a decree dismissing her petition in the Supreme Judicial Court, Suffolk County. The case has been heard here on the original papers filed in the county court. The decree of the single justice recited, "it appearing that no notice of said hearing had been given to other parties in interest," and that the case "was argued by the petitioner." We deal with this on the assumption that it means that even on

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the petitioner's argument, no case was made out for granting the petition. The subject matter of the petition is not clear. The petitioner states in her brief that she is without funds and that the purpose of the petition is to permit her to enter in the full court "several appeal procedure pending in different Courts" without payment of any entry fee and without payment for printing and "other expenses." The petitioner was not entitled as matter of law to have the petition allowed. No error has been made to appear.