3 Mass. App. Ct. 755

May 27, 1975

The plaintiff got a verdict in this tort action for injuries sustained in a fracas in the defendant's barroom. There was evidence that the plaintiff initiated physical contact by grabbing another customer, with whom the plaintiff had been quarrelling, by the shirt. The judge charged the jury with considerable emphasis concerning the defendant's duty of care in preventing injury to its customers by the acts of other customers. See Allenby v. M. & C. Enterprises, Inc. ante, 700 (1975), and cases cited. He refused to charge on the subject of assumption of the risk by the plaintiff, and the defendant excepted. 1. As the plaintiff insisted on the defendant's including the entire stenographic transcript in the appendix to its brief and has raised no question whether the case is properly before us, we consider the case on the transcript rather than on the bill of exceptions which was filed but neither presented nor allowed prior to July 1, 1974. But see Mass.R.Civ.P. 1A(7), 365 Mass. 732 (1974). 2. The charge did not adequately instruct the jury on the legal significance (see Prosser, Torts, Section 18, pp. 101-105 [4th ed. 1971]; see also Ford v. Ford, 143 Mass. 577, 578 [1887]; Szadiwicz v. Cantor, 257 Mass. 518 [1926]) of a possible finding, warranted on the evidence, that the plaintiff started the fight, but instead implicitly, and, we think, incorrectly, permitted the jury to find for the plaintiff notwithstanding his possible provocation of the other customer. The defendant's request that the judge charge on assumption of the risk sufficiently directed the judge's attention to a deficiency in the charge. See McFadden v. Bancroft Hotel Corp. 313 Mass. 56, 61 (1943). See also Hietala v. Boston & Albany R.R. 295 Mass. 186, 189-191 (1936), cert. den. 299 U.S. 589 (1936). As the defendant was entitled to an adequate charge on the controlling issues of the case, his failure to request instructions before the charge is immaterial. Liakos v. Moreno, 351 Mass. 90, 93-94 (1966).

Verdict set aside.

Case to stand for new trial.


3 Mass. App. Ct. 755

May 30, 1975

The board has appealed from a judgment of the Superior Court affirming a decision of the committee which ordered the board to issue (subject to certain conditions) a comprehensive permit for the construction of low and moderate income housing. G. L. c. 40B, Sections 20-23, inserted by St. 1969, c. 774, Section 1. Board of Appeals of Hanover v. Housing Appeals Comm. in the Dept. of Community Affairs, 363 Mass. 339, 345-346, 362-363 (1973). We confine ourselves to what has been argued; merely calling our attention to particular portions of a stenographic transcript is not argument. 1. The committee's possible misunderstanding of a portion of the Quatrale testimony (which was conclusory at best and which the committee was not obliged to credit) does not appear to have resulted in prejudice to "the substantial rights of any party" within the meaning of G. L. c. 30A, Section 14(7), as appearing in St. 1973, c. 1114, Section 3. 2. If (as we do not suggest) there were infirmities in the committee's findings concerning the sewer problem, they were obviated by condition (3) which the committee ordered be included in the

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permit. 3. The argument based on the provisions of G. L. c. 21, Section 43 (as appearing in St. 1973, c. 546, Section 9), is specious; it is clear that the sewage from the development will be discharged into an existing city sewer and not into any "waters of the commonwealth" within the meaning of Section 43(2). See G. L. c. 21, Section 26A, inserted by St. 1973, c. 546, Section 2.

Judgment affirmed.