Home BOWMAR'S INC. vs. BOARD OF APPEALS OF HINGHAM.

344 Mass. 750

April 2, 1962

Decree affirmed. The Hingham board of appeals denied a zoning variance relating to premises now containing (as a nonconforming use in a Residence A district) a public dance hall, currently little used as such. Bowmar's Inc. sought the variance in order to use the premises, for long hours each day, as a sales room and display center for small boats. The trial judge who heard an appeal under G. L. c. 40A, Section 21 (as amended through St. 1960, c. 365), reached less definite conclusions than would have been desirable, but ordered that the board be sustained. The evidence, which is reported, and the judge's findings, amply establish that the board acted within its "field of administrative discretion" and that its action was not "unreasonable, whimsical, capricious, or arbitrary." Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 559-560. See Bruzzese v. Board of Appeals of Hingham, 343 Mass. 421 , 423.

Home SYDNEY SALAMOFF vs. BERNARD L. GODFREY & another.

344 Mass. 750

May 2, 1962

Exceptions overruled. This is an action of tort for negligent injury. The plaintiff and the individual defendant were members of the corporate defendant, Parkway Country Club, Inc., called Blue Hill Country Club, in which there was a steel-framed indoor golf practice cage. The plaintiff, who had driven some balls into the cage, either put down the driver, which was picked up by the individual defendant, or handed it to him. The plaintiff went to the rear of the room where he was struck in some manner by a ball while the individual defendant was practising. The judge directed verdicts for the defendants. There was no error. The plaintiff was the player immediately preceding the individual defendant and, although the plaintiff had finished practising, he had not left the room where the cage was when injured. The peril in remaining in what in effect was an enclosed driving range was obvious. The purpose was, of course, to drive into the net, but, as this case shows, there was a risk that all balls would not find the mark. This risk the plaintiff assumed both as to the owner of the premises and as to the following player. Katz v. Gow, 321 Mass. 666 . Pouliot v. Black, 341 Mass. 531 . See Hietala v. Boston & Albany R.R. 295 Mass. 186 , 188-191; Shaw v. Boston Am. League Baseball Co. 325 Mass. 419 .

Home JOSEPH F. WHITE, JR., & another vs. HARVEY G. CLAUSON, JR., & another.

344 Mass. 750

May 2, 1962

Decree affirmed with costs of appeal. This is a bill in equity to enforce a constructive or resulting trust in favor of

Page 751

White in a half interest in certain Falmouth real estate purchased by a corporation controlled by Clauson. The plaintiffs contend that White and Clauson entered into a joint adventure to purchase this real estate in equal shares. The defendants contend that this arrangement was conditioned upon whether Clauson should in fact obtain a half interest in a Ford motor sales agency to be conducted on the premises. The Ford Motor Company would not permit Clauson to participate in that agency. The plaintiffs appeal from a decree dismissing the bill. The evidence is reported. The judge found the material facts. Although a different conclusion would have been justified by the conflicting evidence, largely oral, we cannot say that the trial judge was plainly wrong (Jertson v. Hartley, 342 Mass. 597 , 601; see Cohen v. Santoianni, 330 Mass. 187 , 190) in concluding that there was no joint adventure (see Cardullo v. Landau, 329 Mass. 5 , 8) that would furnish a basis for imposing any constructive trust. See Cann v. Barry, 293 Mass. 313 , 316-318. See also Shelburne Shirt Co. v. Singer, 322 Mass. 262 , 265-266, 268; Yamins v. Zeitz, 322 Mass. 268 , 272-273; Samia v. Central Oil Co. of Worcester, 339 Mass. 101 , 112. Cf. Warsofsky v. Sherman, 326 Mass. 290 , 292-293; Ranicar v. Goodwin, 326 Mass. 710 , 713; Young v. Paquette, 341 Mass. 67 , 68. Cf. also Salter v. Beal, 321 Mass. 105 , 109. The judge was not required by the evidence to find that cash payments made by White to Clauson were not loans or that they were advances of a specific portion of the purchase price which might give rise to a resulting trust. See Druker v. Druker, 308 Mass. 229 , 230-231; Collins, 325 Mass. 123 , 125; Checovich v. Checovich, 339 Mass. 71 , 73-74.