Home JACK E. KENYON vs. ORA A. ANDREWS.

347 Mass. 769

April 3, 1964

Interlocutory decree and final decree affirmed with costs of appeal. Kenyon, who became a licensed insurance broker in December, 1960, seeks equitable relief, including an accounting, against Andrews, who for some time had been a licensed broker. A master, whose report was confirmed by interlocutory decree, found the following facts among others. Kenyon and Andrews began an insurance business on January 1, 1960. Andrews incurred all the expenses of three offices and paid Kenyon $100 a week. In October, 1960, Kenyon and Andrews arranged to terminate their association at the end of 1960. The parties effected a settlement of various accounts early in 1961 on terms which included retention by Kenyon of the commissions on certain policies and payment of the balance of the premiums to Andrews. The subsidiary findings justified the master's conclusions (1) as to the terms of the settlement apparently fully executed with respect to various payments and executory with respect to certain insurance accounts, furniture, and an automobile and (2) that a partnership between Kenyon and Andrews had terminated on December 31, 1960. The final decree properly enjoined Andrews from making statements concerning Kenyon which were inconsistent with the terms of the settlement and awarded nominal damages for past statements. Kenyon is not barred by illegality from obtaining the other relief granted, which is based upon the settlement arrangements (cf. Hawes Elec. Co. v. Angell, 332 Mass. 190 , 192; Buccella v. Schuster, 340 Mass. 323 , 325-326; cf. also Bohaker v. Koudelka, 333 Mass. 139 , 143) and not upon the partnership which Andrews contends was illegal. See G. L. (Ter. Ed.) c. 175, Sections 166, 173 (as amended through St. 1946, c. 299).

Home J. J. MINNEHAN, INC. vs. NATIONAL DOCK & STORAGE WAREHOUSE CO.

347 Mass. 769

April 3, 1964

Order dismissing report affirmed. The Appellate Division of the Municipal Court of the City of Boston did not err in dismissing the report in this action of tort. The trial judge, who found for the plaintiff, was not required to rule that the plaintiff voluntarily assumed the risk of injury or that it was contributorily negligent. The hoisting apparatus from which a bale of cotton, on two occasions, fell on a truck trailer of the plaintiff was in control of the defendant's employees. There was evidence that lowering the bales by rope and motor hoist from the third floor of the defendant's warehouse was a dangerous procedure and that from time to time bales fell. The plaintiff's truck driver testified that in each instance he inspected the grasping hooks and found them too dull to bite into and hold the bales properly but did not complain or move his trailer although through long experience he knew the hazards. The defendant's testimony was that the hooks were in proper operating condition and sharpened.

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On the first occasion fifty bales, and on the second occasion five bales, had been lowered before the accident. The judge could have inferred that the accidents occurred because the defendant's employees, in each particular instance, did not use due care commensurate with the nature of the operation and the condition of the equipment. He was not obliged to find that the accidents were due solely to dull hooks and were the inevitable result of their use. The plaintiff had to take delivery of the bales at the defendant's warehouse, and was entitled to rely to some degree on the defendant's obligation to use its equipment with due care. The issues argued were in the realm of fact, not law.