Home THOMAS F. SULLIVAN vs. PRESIDENT AND FELLOWS OF HARVARD COLLEGE.

348 Mass. 800

April 2, 1965

This is an appeal from a decree of the Probate Court allowing an instrument dated October 19, 1961, as the will of Mary A. Shea, late of Cambridge. After a full hearing the trial judge filed a report of the material facts in compliance with the contestant's request. The evidence is reported. The contestant argues (1) that the material findings made by the judge were clearly erroneous; (2) that the proponent failed to sustain the burden of proof that the testatrix possessed testamentary capacity on October 19, 1961; (3) that the judge utilized an erroneous standard of burden of proof; and (4) that the October 19, 1961, instrument was the result of undue influence. We think no useful purpose would be served by a recitation of the pertinent portions of the rather voluminous testimony or by summarizing the judge's report of material facts. From a careful review of the entire record we are satisfied that there was no error. The controlling legal principles have been stated in a number of decisions of this court and need not here be repeated. Neill v. Brackett, 234 Mass. 367 . Liberty Mut. Ins. Co. v. A. C. Martinelli-Rogers Plastic Corp. 344 Mass. 498 , 501-502. Petition for Revocation of a Decree for Adoption of a Minor, 345 Mass. 663 , 669. O'Brien v. Wellesley College, 346 Mass. 162 .

Decree affirmed.

Home LEWIS J. COMEAU vs. BROWN-WALES COMPANY.

348 Mass. 800

April 2, 1965

The plaintiff, a builder and a contractor, went to the premises of the defendant which sold steel products for the purpose of taking delivery of a steel grille. He was directed to a loading platform upon which rested various shipments of steel products including angle irons. There he became engaged in assisting an employee of the defendant in dragging the grille toward his truck. While walking backward "he looked over his shoulder to make sure he had a place to walk" at which time the cuff of his trouser leg caught on an angle iron causing him to fall and sustain injury. The plaintiff is here on exceptions to the allowance of the defendant's motion for a directed verdict and to the entry of such verdict. There was no error. Injury occurred to the plaintiff, a business invitee, in a storage area where the plaintiff was bound to expect such conditions and risks as would normally exist in an area employed for the storage of steel and steel products. The defendant was not obliged to store its steel in any different manner. There was no duty to warn the plaintiff of what was self-evident as he made his way back to his truck. No duty of care to the plaintiff was violated by the defendant. Forgione v. Frankini Constr. Co. 308 Mass. 29 , 31-32. Starr v. Chafitz, 317 Mass. 227 , 229.

Exceptions overruled.

Home LILLIAN K. NEWBURGH vs. STERLING LEATHER CO., INC. & others.

348 Mass. 800

April 5, 1965

One half the shares of the corporate defendant (Sterling) were owned by another defendant Bernstein, its president and treasurer. The other half of the shares were held for Mrs. Newburgh. Her husband, active in Sterling's business, had access to its books. Sterling employed a bookkeeper and a certified public accountant. Sterling was liquidated in 1943, under the direction of Mr. Emanuel Kurland, its clerk, pursuant to a dissolution agreement of November

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3, 1942, and to its accountant's computations. Its books and records were left with the Newburghs. In 1954 and 1955, the Newburghs discovered checks of Sterling, payable to Bernstein and signed by him while Sterling was operating. Sterling was revived. By final decree this bill for an accounting was dismissed after confirmation of a master's report. The master concluded that the checks "were drawn in the usual course of . . . [Sterling's] business" and that Bernstein "did not violate any fiduciary obligations." He found, among other things, that Bernstein had financed Sterling, which "had no financial standing," by borrowing money himself, lending it to Sterling, and obtaining repayment by Sterling's checks payable to him, and that, "with the extent of . . . [such] financing . . . it is understandable that substantial checks would be drawn" to Bernstein's order which he cannot now identify. From the master's summary of evidence it could be found that, although Sterling's records had been left with the Newburghs and Bernstein could not obtain bank records, he had explained the great bulk of the questioned checks, and failed, because of "time lapse and absence of records," to identify only three checks (for an aggregate of $9,421.97 out of a much larger amount) drawn in 1940 and 1942. The findings suggest that the Newburghs' delay in investigating matters, open to their check, prejudiced Bernstein's ability to account. See Garfield v. Garfield, 327 Mass. 529 , 534; Whitaker v. Boston & Maine R.R. 343 Mass. 684 , 685. In the circumstances, it would be "impracticable and inequitable" (see Samia v Central Oil Co. of Worcester, 339 Mass. 101 , 126-127) at this late date to require a more detailed accounting, where the record does not affirmatively indicate that Bernstein misapplied Sterling's funds.

Final decree affirmed.