353 Mass. 751

November 3, 1967

The record shows no error in the denial of the defendant's motions for a new trial and to dismiss with prejudice. See the findings of the judge in his Memorandum of Decisions on Motions for New Trials, filed September 8, 1965.

Exceptions overruled.


353 Mass. 751

November 3, 1967

The case has been here twice before. 345 Mass. 772 . 350 Mass. 773 . In the latter rescript a decree of contempt against Harry Butters was reversed and it was stated that "all pending matters" be heard anew by another judge from another county. Subsequently a new petition for contempt was filed by Charlotte and was heard by the disqualified judge before whom she testified and before whom Butters refused to be sworn or testify. Butters was adjudged in contempt for not complying with an earlier decree entered by another judge ordering payments to Charlotte. Butters purged himself by paying the arrears and now appeals. No brief was filed by Charlotte. A petition for contempt, "although dealt with in a separate proceeding, is actually an incident of the principal suit." New England Overall Co. Inc. v. Woltmann, 343 Mass. 69 , 80. The presumption of good faith constrains us to indulge the judge the nice distinction which he seems to have read into the rescript. Thus considered, there is no error of record and the decree is affirmed. To avoid further misunderstanding, however, all matters whether now pending or hereafter arising from or incidental to the present litigation or hereafter brought in the Probate Court for the county of Suffolk by either of the parties against the other, shall, unless otherwise ordered by a Justice of this court, be heard by a judge from another county to be assigned by the Chief Judge of the Probate Courts.

Decree affirmed.

Home ETHEL M. ACKER vs. CITY OF HAVERHILL (and a companion case. [Note 1])

353 Mass. 751

November 29, 1967

The plaintiff's exception to a directed verdict for Paving is alone in issue, since the city does not argue its exception to the denial of its motion for a directed verdict at a trial where the plaintiff was awarded damages against the city under G. L. c. 84, Section 15. On October 18, 1962, the plaintiff fell and was injured on that part of a sidewalk which was frequently crossed by vehicles entering a driveway between two buildings on the main street of the city. The plaintiff's foot struck the edge of the hot top which, because of a preexisting undersurface of cobblestones, sloped upward to a manhole cover and had unevenly worn away. No hot top was spread over the manhole cover which, as a result, was about one and one-half inches below the surface of the peripheral repaved sidewalk. Under its contract with the city, Paving had supplied hot top at places designated by the city and had spread the material under the immediate direction and supervision of a State engineer. On September 26, 1962, the State engineer approved the work around the manhole cover and Paving was paid. There was no evidence of ownership or control of

Page 752

the manhole cover or that Paving had authority to raise the level of the manhole cover or to lower the level of the peripheral surface. In short, Paving's obligation was merely to furnish labor and material. The directed verdict was right. See Romano v. Rossano Constr. Co. Inc. 341 Mass. 718 , 721-722.

Haverhill's exceptions dismissed.

Plaintiff's exceptions overruled.


[Note 1] The companion case is by the same plaintiff against Merrimack Paving Corporation (Paving).