Home HATTIE PRIMUS vs. REUBEN FRIEDMAN.

357 Mass. 780

June 8, 1970

In this action of tort for dental malpractice there was a directed verdict for the defendant. The plaintiff filed a motion for new trial based on newly discovered evidence. Affidavits of counsel for the plaintiff and of Dr. Norman Aurlick, an oral surgeon, who was a witness for the plaintiff, were to the effect that during a recess at the trial Dr. Aurlick was approached separately by the defendant and the defendant's counsel each of whom asked in angry tones whether he was going to testify against Dr. Friedman. The motion was denied. There was no error. The judge's ruling rested in his sound judicial discretion. Berggren v. Mutual Life Ins. Co. 231 Mass. 173 , 177. Madden v. Boston Elev. Ry. 284 Mass. 490 , 494. Spiller v. Metropolitan Transit Authy. 348 Mass. 576 , 580. No abuse of discretion appears.

Exceptions overruled.

Judgment for the defendant.

Home JOHN H. LEDBETTER vs. M. B. FOSTER ELECTRIC COMPANY, INC.

357 Mass. 780

June 9, 1970

In this action of tort the plaintiff claims for personal injuries received in a flash fire caused by the malfunction of a grill in the Jordan Marsh Company store in Boston, stating that the defendant undertook to repair the grill and its wiring system and did so negligently. We do not discuss the issues of negligence and the defence raised under G. L. c. 152, Sections 15 and 18, for the matter can be disposed of on the defendant's contention that the individuals who undertook the repairs were lent servants to Jordan Marsh Company. Viewing the evidence in the light most favorable to the plaintiff (Cannon v. Crowley, 318 Mass. 373 , 374), it could have been found that the individuals who did the electrical work were employees of the defendant and paid by it although they worked steadily at Jordan Marsh Company. The two individual electricians took orders directly from the defendant's foreman but the foreman in turn took his orders directly from an electrician in the employ of Jordan Marsh Company. In this instance the employees did not continue liable to the direction and control of the defendant but were subject to that of Jordan Marsh Company to which they were lent. Galloway's Case, 354 Mass. 427 , 430. See Coughlan v. Cambridge, 166 Mass. 268 , 277; Langevin's Case, 326 Mass. 43 , 47. The record makes it clear that the employees who accomplished the repairs were lent employees, and since there was no contradictory evidence a verdict should have been directed for the defendant.

Exceptions sustained.

Judgment for the defendant.

Home JAMES J. KELLEY vs. GEORGE L. PORTER.

357 Mass. 780

June 9, 1970

The plaintiff seeks by this bill in equity to have the defendant convey to a trustee property alleged to have been improperly conveyed to him. He also seeks an accounting for the proceeds of a sale by the defendant of a portion of the property. The case was referred to a master. On the basis of the master's report a final decree was entered granting the relief prayed for. The defendant appealed. Pertinent facts found by the master include the following. On May 9, 1944, the plaintiff's mother executed a declaration of trust which was duly recorded. On the same day she acquired as trustee a parcel of real estate in Medway, which is

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the subject of this controversy. This property constituted the res of the trust. The plaintiff was the sole beneficiary of the trust, which was to be irrevocable for a period of ten years. At the expiration of that period the trust could be terminated only by an election in writing, by the beneficiary, which was to be recorded. In 1954, two days after the expiration of the ten year period, the trustee conveyed the property to a straw, who reconveyed it to her and the defendant as joint tenants. The beneficiary of the trust (the plaintiff) was unaware of the existence of the trust until shortly before this suit was brought, and at no time elected to terminate the trust; nor was there any consideration more than nominal for the conveyances of the trust property to the straw and to the joint tenants. Subsequently, the plaintiff's mother having died, the defendant as the surviving joint tenant sold a portion of the property (lot 1) for $2,500. Under the final decree the defendant was ordered to convey the property to a trustee appointed by the court (see G. L. c. 203, Section 5) and to account for the proceeds of that portion of the property which he had sold. Whether the 1954 transactions are viewed either as a sale of the property or as a termination of the trust, they clearly violated the terms of the trust. Under those terms, fairly construed, the property could not be sold for a nominal consideration and there could be no termination of the trust without the consent of the plaintiff. Neither of these conditions was satisfied. The conclusion of the master that the plaintiff was not guilty of laches was amply supported by his subsidiary findings. The final decree, however, requires modification. Paragraph (3) of the decree orders a conveyance to the trustee of all of the real estate originally in the trust. But a portion (lot 1) has been sold and the decree orders the defendant to account for the proceeds of the sale. The decree should be modified so as to require a conveyance to the trustee of only that portion of the real estate (lot 2) now held by the defendant, and, as so modified, the decree is affirmed. The interlocutory decrees are affirmed. The plaintiff is to have costs of appeal.

So ordered.