Home ANTONINA RINTONE vs. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY & another.

3 Mass. App. Ct. 759

June 3, 1975

The plaintiff's amended bill of exceptions disputes the allowance of the motion of each of two defendants for a directed verdict in a tort action brought for injuries received by the plaintiff in a fall down a flight of temporary wooden steps leading to the passenger platform within an M.B.T.A. station then in the process of being altered by the defendant Perini Corporation. We conclude that there was evidence from which the jury could have found (1) that there was a defect in the step from which the plaintiff fell; (2) that the defect caused the fall; (3) that each defendant was responsible for the defective condition of the step and (4) that the defect had existed for a sufficient period of time to charge either defendant with knowledge of its existence and a duty to correct it. Upham v. Boston, 187 Mass. 220 , 221 (1905). Shwartz v. Feinberg, 306 Mass. 331 , 332-333 (1940). Cobb v. Worcester County Elec. Co. 338 Mass. 252 , 254-255 (1958). Compare Oliveri v. Massachusetts Bay Transp. Authy. 363 Mass. 165 , 166-170 (1973). That the testimony of one of the plaintiff's witnesses may have been conflicting was a question to be resolved by the jury. Garland v. Stetson, 292 Mass. 95 , 97-98 (1935). Keenan v. E. M. Loew's, Inc. 302 Mass. 309 , 310-311 (1939).

Exceptions sustained.

Home WILLIAM C. HARDY vs. UTICA MUTUAL INSURANCE COMPANY.

3 Mass. App. Ct. 759

June 9, 1975

The judgment obtained by the plaintiff in the First District Court of Eastern Middlesex against the defendant's insured, satisfaction of which was sought by the present bill in equity brought in the Superior Court under G. L. c. 214, Section 3(10) (as in effect prior to St. 1973, c. 1114, Section 62) and granted by the decree appealed from, was invalid, as the District Court never acquired jurisdiction for the reasons stated in Nickerson v. Fales, 342 Mass. 194 , 196-200 (1961), White v. Hultgren, 357 Mass. 36 , 39-40 (1970), and Gifford v. Spehr, 358 Mass. 658 , 660-662, 663-664 (1971). While the foregoing cases arose under G. L. c. 90, Section 3C (as appearing in St. 1937, c. 387), their reasoning is equally applicable to a case such as the District Court action underlying the present bill which arose under G. L. c. 90, Section 3D (as amended through St. 1956, c. 75), because the relevant provisions of Sections 3C and 3D are (and since their insertion in the General Laws by St. 1928, c. 344, have been) almost identical. Insurance Rating Bd. v. Commissioner of Ins. 356 Mass. 184 , 188-189 (1969). Commonwealth v. Mercy Hosp. 364, Mass. 515, 520 (1974). Shrewsbury v. Munro, 2 Mass. App. Ct. 362 , 364-365 (1974). It follows that the present bill does not lie. Rogan v. Liberty Mut. Ins. Co. 305 Mass. 186 , 188 (1940). Contrast Shapiro v. State Farm Mut. Ins. Co. 355 Mass. 54 , 57 (1968). The decree is reversed, and judgment is to be entered dismissing the bill.

So ordered.

Home JOHN C., CHWALEK & others vs. CITY OF PITTSFIELD & others.

3 Mass. App. Ct. 759

June 9, 1975

In their appeal from the decree of the Probate Court which

Page 760

dismissed their petition for declaratory relief and declared valid the takings purportedly made by the respondent city of lands and interests in land in the town of Windsor under the authority granted the city for that purpose by St. 1968, c. 590, the petitioners contend that the city failed to comply with the proviso in Section 1 of the 1968 act whereby any such acquisition was subject to the approval of the Department of Public Health. While the Department concededly approved the acquisitions in its letters dated September 27 and October 20, 1971, its approval was expressly conditioned upon the completion of the acquisitions by September 1, 1972, and the orders of taking at issue were neither adopted nor recorded until December of that year. The 1972 amendment to the 1968 act (St. 1972, c. 335) did not, as claimed by the city, extend that deadline. The language in which the amendment is couched ("The authority granted to the city of Pittsfield by th[e 1968] act to acquire any land or rights in land by eminent domain in the town of Windsor shall expire on December [31, 1972] . . ." [emphasis supplied]) clearly manifests a legislative intention to impose a deadline on the city's exercise of its authority rather than to relax any statutory or administrative restriction on that authority. Our interpretation is reinforced by the title of c. 335, "An Act limiting the time during which the city of Pittsfield may take by eminent domain certain land, rights of way and easements in the town of Windsor" (emphasis supplied) (Maria v. State Examiners of Electricians, 365 Mass. 551 , 556, fn. 4 [1974], and cases cited), and by its legislative history, which discloses a series of bills and amendments thereto whereby a variety of deadlines on the city's acquisitions (including November 1, 1971, and September 1, 1972) were proposed and considered (see 1971 House Doc. Nos. 4021, 5428; 1972 House Doc. No. 5484; 1971 House Journal, pp. 1347, 1401; 1971 Senate Journal, p. 2640; 1972 House Journal, pp. 1432, 1483). The judge's finding that the Department of Public Health itself extended the deadline from September 1, 1972, to December 31 of that year was plainly wrong, as there was no evidence to support such a finding. The letter of a subordinate in the Department of Public Health dated February 6, 1973, and the reference in that letter to "a communication . . . dated January 9, 1973" (the contents of which are not disclosed by the record), certainly did not warrant a finding that any such extension had been granted, as the February letter, at most, constituted evidence that the Department made no extension of its September 1, 1972, deadline because of its erroneous conclusion that the 1972 amendment had itself effected such an extension. No question has been raised as to the validity of a restriction or condition of the Department's approval expressed in terms of time. It follows that the purported takings, having been made by the city without "having first complied with all the preliminary requirements prescribed by law" (G. L. c. 79, Section 1), were invalid. Shea v. Inspector of Bldgs. of Quincy, 323 Mass. 552 , 558 (1949). It is therefore unnecessary to consider the petitioners' other contentions. The decree is reversed, and a new decree is to be entered consistent with this opinion.

So ordered.