Home ALEX VOMVORIS'S CASE.

360 Mass. 874

January 6, 1972

The self-insurer appeals from a final decree awarding the employee compensation for total and permanent incapacity, claiming that an expert witness for the employee, a professional psychologist and vocational consultant, was permitted to give an opinion based on hearsay not in evidence, contrary to our decisions. Commonwealth v. Russ, 232 Mass. 58 , 73-74. Charron's Case, 331 Mass. 519 , 523. Haley's Case, 356 Mass. 678 , 681-683. Testimony by medical doctors amply supported the findings of the single member of the board that the employee was totally and permanently incapacitated and that the incapacity was causally related to his industrial injury. There is nothing to indicate that the single member regarded the psychologist's testimony as anything but cumulative. The error, if any, was not prejudicial. Indrisano's Case, 307 Mass. 520 , 523. Caccamo's Case, 316 Mass. 358 , 362-363. McLean's Case, 323 Mass. 35 , 39. Cherwinski's Case, 344 Mass. 761 .

Decree affirmed.

Costs and expenses of appeal are to be determined by the single justice.

Home EVA SIIRA vs. M. LAWRENCE SHIELDS.

360 Mass. 874

January 6, 1972

Mrs. Siira, a seventy-three year old housekeeper working for the defendant, obtained a verdict awarding her damages for injuries suffered by her while walking the defendant's forty-five pound French poodle, Beau, during the defendant's absence in Florida. The evidence did not require the judge to direct a verdict for the defendant. It could be found (a) that the defendant knew that Mrs. Siira took Beau on walks, (b) that she, as an employee of the defendant, fed Beau when the defendant was absent, and (c) that Beau, while on a walk with her, became excited, when other dogs approached, and knocked Mrs. Siira down, injuring her seriously. It was a question of fact for the jury whether Mrs. Siira was Beau's "keeper" within the meaning of G. L. c. 140, Section 155 (as appearing in St. 1934, c. 320, Section 18; see later amendment by St. 1968, c. 281). See Boylan v. Everett, 172 Mass. 453 , 457-458; Maillet v. Mininno, 266 Mass. 86 , 89. See aso Baker v. Ratkiewicz, 275 Mass. 174 , 179; Leone v. Falco, 292 Mass. 299 , 300-305. Since she could be found not to be the "keeper," there is now no occasion in view of the verdict to consider

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whether a temporary "keeper" would be barred from recovery against the owner. Mrs. Siira spoke English with difficulty and "sometimes she did not understand." The jury could reasonably conclude that seeming inconsistencies in her testimony were caused by language difficulties. There was, in the circumstances, no such final and conclusive election by her among possibly conflicting accounts as to remove the matter of her credibility from the province of the jury. See Marra v. Botta Corp. 356 Mass. 569 , 572-573. See also Brown v. Metropolitan Transit Authy. 345 Mass. 636 , 638-640. Compare Sullivan v. Boston Elev. Ry. 224 Mass. 405 , 406-407; Krasnow v. Fenway Realty Co. 352 Mass. 781 .

Exceptions overruled.