We have no doubt that the action was properly dismissed under Mass.R.Civ.P. 12 (b) (6), 365 Mass. 755 (1974). The only count of the declaration (treated as a complaint) which alleged an actual injury to the plaintiff by reason of any act or omission on the part of the defendant (count 4) failed to assert any form of damages which would have been recoverable under prevailing principles of law.
We are satisfied that the trial judge's determination of the competency of the complaining minor witness to testify was well warranted by the testimony in the voir dire on that subject. Commonwealth v. Tatisos, 238 Mass. 322 , 325-326 (1921). Commonwealth v. Welcome, 348 Mass. 68 , 70 (1964). Malchanoff v. Truehart, 354 Mass. 118 , 120-122 (1968). Although no motion to strike her testimony was thereafter made, we observe nothing in that testimony which casts serious doubt on the correctness of the original determination.
The assignments of error, not being based on exceptions, bring nothing before this court for review. Commonwealth v. Myers, 356 Mass. 343 , 346 (1969). Commonwealth v. Underwood, 358 Mass. 506 , 507-512 (1970). Commonwealth v. Shaffer, 2 Mass. App. Ct. 658 , 665 (1974), S.C. 367 Mass. 508 (1975). Commonwealth v. Kennedy, ante, 218, 223 (1975). None of the alleged errors (assuming they are errors) is of sufficient importance to raise any "substantial risk of a miscarriage of justice." Commonwealth v. Freeman, 352 Mass. 556 , 564 (1967). Commonwealth v. Swenor, ante, 65, 70 (1975). Commonwealth v. Dundon, ante, 200, 203 (1975). Commonwealth v. Kennedy, supra, at 225.
1. As both appellants agree, the judge erred in refusing to grant declaratory relief. Improved Mach. Inc. v. Merchants Mut. Ins. Co. 349 Mass. 461 , 463 (1965). 2. The evidence was insufficient to warrant a finding that Bentley had either actual or apparent authority to bind Whitehead & Kales Company (Whitehead) to the indemnity provision found in the form of rental agreement dated June 25, 1969 (contrast Johnson v. New York, N. H. & H. R.R. 217 Mass. 203 , 207-208 ), and, for all that appears, Whitehead did not even learn of the
existence of the form until after the occurrence of the injuries and death in question. The judgment of dismissal is reversed, and a new judgment is to be entered which declares that Whitehead is not bound to indemnify the plaintiff against either the LeBlanc claim or the Driscoll claim by reason of anything found in the form.