319 Mass. 727

March 8, 1946

Appeal to the Appellate Tax Board dismissed. This is an appeal by Louvre, Inc., herein referred to as the taxpayer, from a decision of the Appellate Tax Board, herein referred to as the board. The taxpayer applied in writing to the assessors of the city of Boston for abatement of a tax upon certain real estate in said city. The assessors failed to act upon this application within four months from the date of its filing and consequently it was deemed to be refused. See G. L. (Ter. Ed.) c. 59, Section 64, as amended. The taxpayer, in accordance with the provisions of G. L. (Ter. Ed.) c. 59, Section 65B, inserted by St. 1938, c. 478, Section 3, duly filed with the board a petition for leave to file an appeal. This petition was heard by a single member, as provided by the statute, and an order was entered on March 27, 1944, granting "leave to file such appeal within ten days from the entry of this order" upon certain conditions. No such appeal was filed with the board until April 10, 1944. The assessors moved to dismiss this appeal. This motion was allowed by the board and the appeal dismissed, and the taxpayer appealed from this decision to this court. There was no error. General Laws (Ter. Ed.) c. 59, Section 65B, provides that a single member of the board "may, by order, grant leave to such petitioner to file such appeal, within ten days from the entry of said order, upon such conditions as may be imposed therein." Apart from the order of the single member under this statute, the taxpayer had no right to file the appeal. The statute gave no authority to a single member to grant leave to file the appeal after the expiration of ten days from the date of the order granting such leave, and the single member did not purport to do so. The appeal of the taxpayer filed more than ten days thereafter had no standing and could be given none by the board either as matter of right or as matter of discretion. The statute must be strictly followed. The appeal was not rightly on the files of the board and was properly removed therefrom by the allowance of the motion, to dismiss. See Boston Five Cents Savings Bank v. Assessors of Boston, 317 Mass. 694 , 696.


319 Mass. 727

March 27, 1946

Exceptions overruled. This action, brought to recover compensation for personal injuries alleged to have been sustained in the circumstances recited below, comes before us on the plaintiff's exception to the allowance of the defendant's motion for a directed verdict. There was evidence that the plaintiff purchased a pair of brown kid gloves from the defendant on November 24, 1942; that after wearing them for two or three days, a rash appeared on her hands; that she had not had any skin affection before; that after treatment by her family physician, she was referred by him to a physician who was a specialist in skin diseases, a dermatologist; that she was treated by him; that he made tests from patches of the gloves on the plaintiff's wrists; that as a result a rash appeared thereon; that this physician made no chemical test of the gloves, and never found what was "wrong with the gloves"; that he made a diagnosis of contact dermatitis plus secondary infection caused by some outside agent; that he "thought the gloves were the ideological agent";

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that he found that the plaintiff was "allergic to this particular pair of gloves"; and that "this particular type of gloves on this particular pair of hands . . . caused this rash or this dermatitis." The plaintiff had the burden of proving that the gloves were unfit "to be worn by a normal person, and cannot recover by merely showing that . . . [they were] unfit for her or for some unusually susceptible person to wear." Payne v. R. H. White Co. 314 Mass. 63 , 65. On the evidence most favorable to the plaintiff, it cannot be said rightly that she sustained that burden, since there was no evidence of any intrinsically unhealthy quality in the gloves that would affect a normal person but only evidence that the plaintiff was allergic to them. This being so, the warranty of fitness (G. L. [Ter. Ed.] c. 106, Section 17 [1]) does not apply. Flynn v. Bedell Co. of Massachusetts, 242 Mass. 450 , 454. See also Bradt v. Hollaway, 242 Mass. 446 , 449.