Home ARNOLD MARRAM vs. FOURTH DISTRICT COURT OF EASTERN MIDDLESEX.

353 Mass. 770

February 1, 1968

This is a petition for a writ of certiorari in which the petitioner alleges that he was the judgment creditor in a supplementary proceeding under G. L. c. 224 which he instituted against a debtor. Contending that the judge of the District Court committed error in the course of that proceeding, the petitioner, it is alleged, requested a hearing on a draft report. The request was denied on the ground that there can be no report to the Appellate Division in a proceeding of this sort. The present appeal is from the action of a judge of the Superior Court denying the petitioner's application for the issuance of process on his petition for a writ of certiorari which sought a review of the ruling in the District Court. There was no error. The ruling in the District Court that there can be no report to the Appellate Division in a supplementary proceeding was clearly right. Donnelly v. Montague, 305 Mass. 14 . G. L. c. 224, Section 18. Accordingly, the judge of the Superior Court rightly refused to issue process. Courts are not required to issue process with respect to matters that patently present no question worthy of judicial inquiry. That is especially true with respect to certiorari, a discretionary remedy. See Nichols v. Dacey, 329 Mass. 598 . Where, as here, there is "no showing of substantial injury or manifest injustice . . . certiorari will not issue." Building Commr. of Medford v. C. & H. Co. 319 Mass. 273 , 286.

Order denying application for process affirmed.

Home MARY G. GRIFFIN vs. FIRST NATIONAL STORES, INC.

353 Mass. 770

February 1, 1968

In this action of tort for personal injuries by a customer in the defendant's supermarket, a verdict was directed for the defendant on the plaintiff's opening. The plaintiff excepted. The store was a typical supermarket operation wherein individual customers selected merchandise from shelves and placed it in a metal carriage to be pushed to one of four checkout counters in the front of the store. Manila paper bags of various sizes for bundling were on shelves in recessed open areas under the front ends of the counters facing the main entrance. On August 2, 1960, the plaintiff carried her purchases to a checkout counter. After waiting for her purchases to be checked and bundled, she found her egress blocked by carriages which had been left by previous customers in the front store area. She moved sidewise around the counter front, went forward, and tripped over a sheaf of paper bags which protruded "some

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three inches" from a lower shelf in a bundle compartment. Most facts in the opening are from an auditor's report, which by agreement was considered part of the opening. The facts are somewhat obscure, but enough appears to make the defendant's negligence a question of fact. See Douglas v. Whittaker, 324 Mass. 398 , 399-400. The route by which the plaintiff was invited to leave was blocked by carriages left by previous customers. It could have been found that she took a reasonable route to leave, and that in squeezing around the counter she came in contact with, and was tripped by, the bags, which protruded far enough and were low enough to cause her to fall. We are of opinion that a verdict should not have been directed on the opening. Douglas v. Whittaker, supra.

Exceptions sustained.