Home RENA ROSSI vs. JOSEPH ROSSI.

348 Mass. 796

March 31, 1965

At the hearing of this petition for separate support the only witnesses were the petitioner, a resident of Everett, and one Spencer also of Everett, a friend of the respondent. The parties were married on October 20, 1957, in Revere. The judge found, without testimony from the respondent, that he went to Nevada, established a domicil, there obtained a divorce on June 11, 1963, remarried, and is now living and in business there. From a decree dismissing the petition, the petitioner appealed. In the reported evidence we regretfully note that judicial emotion ran high. The finding of divorce was based upon a supposed copy of a decree in the Eighth Judicial District Court of the State of Nevada in and for the County of Clark purportedly certified by an attorney for the petitioner. This was not compliance with G. L. (Ter. Ed.) c. 233, Section 69, which prescribes that judicial proceedings of a court of another State to be admissible must be "authenticated by the attestation of the clerk or other officer who has charge of the records of such court under its seal." The admission of this paper was error. See Portland Maine Publishing Co. v. Eastern Tractors Co. Inc. 289 Mass. 13 , 15-18; Commonwealth v. Rondoni, 333 Mass. 384 , 385-386. There was no admissible evidence of the respondent's remarriage. There were oral statements by the respondent's counsel, who had appeared specially. See G. L. (Ter. Ed.) c. 207, Section 47. A purported certificate by a clergyman of Nevada was not authenticated. Commonwealth v. Morris, 1 Cush. 391 , 394-395. See Derinza's Case, 229 Mass. 435 , 443; Vergnani v. Guidetti, 308 Mass. 450 , 457. Of course, a remarriage would be no proof of a valid Nevada divorce. The consideration of other objections to the admission of evidence would be superfluous. The decree dismissing the petition is reversed. There is to be a hearing de novo before another judge at which any finding as to the paternity of the petitioner's child is to be in conformity with the principles set forth in Sayles v. Sayles, 323 Mass. 66 , 67-69.

Home BARBARA WATERS vs. HENRY L. DANA.

348 Mass. 796

March 31, 1965

In this action of tort against the defendant, a dental surgeon, for negligence in the treatment of the plaintiff, his patient, the only question

Page 797

presented is whether there was error in denying the defendant's motion for a directed verdict. The evidence most favorable to the plaintiff showed that the plaintiff was referred to the defendant by another dentist who had decided that the plaintiff had an impacted molar which should be extracted. When the defendant first examined the plaintiff he suspected that she had a fractured jaw. The X-rays which he took were unsatisfactory to show him whether the jaw was fractured. They did show him the position of the tooth. He still suspected that the plaintiff had a fractured jaw. He proceeded, nevertheless, with the extraction which caused great pain. X-rays taken later at a hospital showed a fracture of the jaw which thereupon was wired. On the defendant's testimony, without the aid of other expert opinion testimony, the jury could find that the defendant, although he suspected a jaw fracture, was negligent in not taking reasonable steps by satisfactory X-rays or otherwise to ascertain whether there was a fractured jaw, and in going forward with the extraction thereby causing pain and suffering to the patient who, it developed, did in fact have a fractured jaw.

Exceptions overruled.