Home MAX ABELMAN, petitioner to establish the truth of exceptions.

313 Mass. 774

January 27, 1943

Petition dismissed. Ordered that a copy of this rescript be transmitted to the clerk of the Superior Court for the county of Suffolk, where the original cases were brought. This is a petition by Max Abelman to establish the truth of a substitute consolidated bill of exceptions in five cases tried in the Superior Court. In one of the five cases, Abelman v. Mutual Life Ins. Co. of New York, the petitioner's exceptions were dismissed by an order of the Superior Court. This was proper practice. Day v. McClellan, 236 Mass. 330. Gallagher v. Atkins, 305 Mass. 261, 263. The question whether this order was right is not before us. No exceptions to this order have been perfected and the order now stands. We assume in favor of the petitioner that the substitute consolidated bill of exceptions was an amendment allowed in the Superior Court to the original bill or bills of exceptions filed therein. It is obvious, however, that the exceptions in the case of Abelman v. Mutual Life Ins. Co. of New York, having been dismissed, cannot now be allowed. Nor can a consolidated bill of exceptions including these exceptions be allowed. The petitioner, however, asks that, if the consolidated bill of exceptions is not allowed as a whole, it be allowed with respect to the four cases other than the one in which the exceptions have been dismissed, in effect amending the consolidated bill of exceptions. Such an amendment, if desired, should have been sought in the Superior Court. It cannot be made in this court. This conclusion is in accord with what was said in Graustein, petitioner, 305 Mass. 568, 570, quoting from Freedman, petitioner, 222 Mass. 179, 181: "The `place to settle exceptions and to make such amendments as may be necessary to render accurate the statement of the exceptions originally filed is in the Superior Court in ordinary cases . . . . In the rare instances when it is necessary to file a petition for the establishment of exceptions in this court [the Supreme Judicial Court], the field of inquiry is not broadened beyond the exceptions filed in the Superior Court except as to slight unintentional errors.' . . . [Of course we do not intimate that amendments to the original bill of exceptions actually allowed may not be considered.]" It may be that the amendment sought could be made by slight verbal changes in the consolidated bill of exceptions, but nevertheless it relates to a matter of substance and not to "slight unintentional errors." The petitioner is not aided by the fact stated in his affidavit that he suggested such an amendment to the trial judge. It does not appear that any such amendment was allowed in the Superior Court.


313 Mass. 774

February 2, 1943

Appeal dismissed. This is a workmen's compensation case. G. L. (Ter. Ed.) c. 152. The reviewing board adopted the findings of the single member that the employee received an injury, that he "is totally incapacitated for the work he was doing at the time of the injury and that he is unable to do the work offered to him at the

Page 775

time of the hearing." The reviewing board ordered the insurer to pay the employee "total incapacity compensation weekly" at a stated rate "and continuing subject to the provisions" of the statute, fixed the sum so due up to the time of review by the board, and ordered the insurer to pay that sum forthwith. Certified copy of the decision of the reviewing board was presented to the Superior Court. G. L. (Ter. Ed.) c. 152, Section 11. In the Superior Court a decree was entered that "it does not appear that the employee is totally disabled as a result of a personal injury he received on February 17, 1942, arising out of and in the course of his employment by the employer, and that it appears that he is partially disabled," and that the case "be and is hereby remanded to the Industrial Accident Board for said Board to determine the extent of the employee's partial incapacity and earning capacity based thereon, and to make appropriate orders." The employee appealed to this court. This appeal is not properly before this court and must be dismissed. Under the workmen's compensation law, as in equity procedure, only an appeal from a final decree of the Superior Court brings the case to this court. The decree appealed from was not a final decree. It made no final disposition of the employee's claim either by ordering it dismissed or by ordering payment to the employee of a fixed amount, one or the other of which orders is essential to a final decree, though the fact that the amount of weekly payments is subject to change in accordance with the provisions of the statute does not prevent a decree being a final decree. Johnson's Case, 242 Mass. 489, 493-495. The decree here in question, though determining that the employee was only partially incapacitated, ordered the case remanded to the Industrial Accident Board for further proceedings. Such a decree is not a final decree. Keohane's Case, 232 Mass. 487, 489-490.