Amaral's Case , 341 Mass. 133 ( 1960 )

341 Mass. 133 (1960) 167 N.E.2d 493

FRANK T. AMARAL'S (dependent's) CASE.

Supreme Judicial Court of Massachusetts, Suffolk.

May 2, 1960. June 3, 1960.

Present: WILKINS, C.J., SPALDING, WILLIAMS, WHITTEMORE, & CUTTER, JJ.

Richard L. Hull, for the claimant.

Philander S. Ratzkoff, for the insurer.

WILKINS, C.J.

On November 6, 1956, the deceased employee, a taxicab driver, as part of his duties was driving four boys to school in Gloucester. He struck two school girls, who were walking by the side of the road, killing one and injuring the other. On February 8, 1957, he died in a hospital. The claimant, his widow, contends that, as a result of the accident, "the employee suffered a mental shock of such proportions as to cause a reactive depression constituting an injury arising out of and in the course of his employment, and that this injury hastened and accelerated an underlying condition to a death sooner than it would otherwise have occurred." The single member found in favor of the claimant. The reviewing board denied the claim for compensation. From a decree in the Superior Court that "the decision of the reviewing board be affirmed," the claimant appealed.

The decree was erroneous in form. Johnson's Case, 242 Mass. 489, 493-494. Webb's Case, 318 Mass. 357, 358. Jacques's Case, 340 Mass. 787.

The decision of the reviewing board superseded that of the single member, and must be accepted as final if supported by evidence and not tainted by error of law. Webb's Case, supra, p. 358.

The reviewing board, after making certain findings, stated: "Based on the above findings the reviewing board find that immediately subsequent to the automobile accident of November 6, 1956, the employee was very upset and depressed but during the next three months his nervousness and depression diminished and he worked two weekends as a night watchman.... The reviewing board adopted the opinion of Dr. J. Stewart Rooney that the employee had cirrhosis of the liver which caused esophageal varices, an enlargement of the blood vessels of the esophagus, and that one of these ruptured, and that these two conditions followed their usual course to a pneumonic process and death. The reviewing board adopt the opinion of Dr. Rooney that the employee's death was not related to the accident of November 6, 1956."

In so far as there may be an argument based on the form and content of a hypothetical question to Dr. Rooney by the insurer, a question which was not objected to before the single member nor made the subject of any motion before the single member or the reviewing board, it comes too late. Charron's Case, 331 Mass. 519, 522-523. See Blanchard's Case, 335 Mass. 175, 178. This covers the inclusion as an assumed fact that Dr. Parker, the attending physician, had testified that until several days prior to death he had noted no depression. There is no valid objection that the hypothetical question was based in part upon evidence which might have been successfully objected to but which was admitted without objection. Ventromile v. Malden Elec. Co. 317 Mass. 132, 135. Comeau v. Beck, 319 Mass. 17, 19.

The reviewing board was not required to make express findings of all the facts contained in the hypothetical question to Dr. Rooney. Nor is it fatal that the reviewing board found that Dr. Parker testified that the employee was depressed on November 6 and 7, and during the period until December 17 was not as depressed as he had been. The board could accept the opinion of Dr. Rooney even though one of the assumed facts was found by it to be somewhat otherwise. In the circumstances there was no harmful error, if error at all.

The reviewing board made reasonably full findings. We do not have a case of "a naked general finding." See Roney's Case, 316 Mass. 732, 735. There was a general finding, even though referring to the testimony of Dr. Rooney, to the express effect that the employee's death was not related to the accident. This was dispositive of the issues whether he received an injury arising out of and in the course of his employment, and if so, whether the injury contributed to his death.

The claimant does not appear to argue any motion to recommit presented in the Superior Court. Such a motion is not in the record nor mentioned in her brief. In any event, no error appears.

The decree is to be modified by striking out the affirmance of the decision of the reviewing board, and by dismissing the claim, and as so modified it is affirmed.

So ordered.