Home DONALD S. SMOOT vs. WASHINGTON NATIONAL INSURANCE COMPANY.

360 Mass. 868

December 10, 1971

This is an appeal from a final decree dismissing a bill to compel the defendant (Washington) to issue policies of life and health insurance to the plaintiff. The suit is based on an alleged contract of insurance which arose as a result of certain alleged conduct of one of Washington's general agents. After making detailed and lengthy findings of fact, the judge ruled that no contract of insurance was made between Washington and the plaintiff. Questions of fact, including the credibility of the witnesses, are within the exclusive domain of the judge and will not be set aside unless plainly wrong. Younker v. Pacelli, 354 Mass. 738 , 741. A review of the record in this case indicates beyond any doubt that there was substantial and weighty evidence to support each of the findings made by the judge. The appeal is frivolous.

Decree affirmed with double costs.

Home PETER CUDDYER vs. CHARLES BITZER, JR.

360 Mass. 868

December 30, 1971

This case based on a motor vehicle accident is here on the plaintiff's exception to the allowance of the defendant's motion for a directed verdict. A careful examination of the evidence in the light most favorable to the plaintiff leads us to the conclusion that there is nothing in the case which warranted its submission to the jury. No useful purpose would be served in a detailed recitation of the evidence. There was no error. The plaintiff had no recollection of the accident. All the evidence was adduced from the defendant, the passengers in the defendant's car and the police who came on the scene shortly after the accident. In addition, there were photographs showing the locus, the position of the cars and skid marks. The vehicles were traveling in opposite directions on a thirty-two foot wide roadway about 2 A.M. on Route 28, West Yarmouth. The plaintiff apparently lost control of his car, swerved and skidded onto the defendant's lane of travel when the collision occurred. The skid marks from the plaintiff's automobile leading to the point of collision measured twenty-five feet in his own lane and then 175 feet in the defendant's lane. The mere fact that the defendant's car came to rest within its lane but with the left front wheel in the center of the road is insufficient to present a jury issue as to the defendant's negligence. O'Connell v. Esso Standard Oil Co. 337 Mass. 639 .

Exceptions overruled.

Home COMMONWEALTH vs. ROBERT L. GALLINARO (and nine companion cases [Note 1]).

360 Mass. 868

December 30, 1971

The defendants, after trial before a judge sitting without a jury, were convicted of various gaming offences. Their appeals are before us under G. L. c. 278, Sections 33A-33G. The judge denied motions to suppress evidence taken under a search warrant issued by another Superior Court judge upon the basis of an affidavit submitted by a State police officer. The affidavit reported extended surveillance of premises in Brighton and of telephone calls to those premises. The defendants contend that errors in setting out motor vehicle registration numbers and descriptions of vehicles cast such doubt on the truth of the affidavit as to indicate that it was intentionally false and that, in fact, no surveillance took place on the dates mentioned. After hearing largely oral evidence, the judge found "that the errors . . .

Page 869

were not false representations but inadvertences unrelated . . . to an intention to deceive." He in effect inferred that the errors may have been caused by "erroneous information furnished by the Registry of Motor Vehicles," or by "an inconsequential error of observation." He concluded (1) that the errors were insignificant, (2) that the evidence did not demonstrate the affidavit was not "in good faith," and (3) that it was "based on facts sufficient . . . to establish probable cause." Our review of the evidence, which need not be stated here, shows that his findings and conclusions were well warranted. See Commonwealth v. Murray, 359 Mass. 541 , 547-548. There was no need to furnish the defendants a transcript of the State police officer's grand jury testimony. It was examined by the judge and marked for identification. That transcript has also been examined here. It would have afforded the defendants no help. Compare Commonwealth v. De Christoforo, ante 531, 536, fn. 2, where the disputed grand jury minutes were not marked for identification. Other assignments of error are not argued. See S.J.C. Rule 1:13, 351 Mass. 738 .

Judgments affirmed.


FOOTNOTES

[Note 1] Four of the companion cases are by the Commonwealth against Robert L. Gallinaro and five are by the Commonwealth against Robert Bohigian.