Home HAROLD E. HUNT, JR., & others [Note 1] vs. BOARD OF APPEALS OF WHITMAN & another [Note 2].

352 Mass. 782

June 5, 1967

The board of appeals granted a variance to Jacobs which would permit him to use a building for "research and development and manufacture of component parts" in the single residence A-1 district of the town on the locus, bought by Jacobs in 1964, which had been part of a tract where, in connection with the residence, a turkey farm had been operated at and prior to the enactment of the zoning by-law in 1960. The plaintiffs, who are residents and persons aggrieved by the decision, appeal under G. L. c. 40A, Section 21, as amended through St. 1960, c. 365. The judge, after hearing, quite rightly annulled the decision of the board. The board made none of the findings requisite to the granting of a variance. G. L. c. 40A, Section 15. Barnhart v. Board of Appeals of Scituate, 343 Mass. 455 . Coolidge v. Zoning Bd. of Appeals of Framingham, 343 Mass. 742 , 744-745. The findings of the judge, on the other hand, show clearly that the board could not make the findings requisite for a variance. Since all interested parties were before the court and given a full opportunity to be heard on the merits, and since all substantial issues have been determined on the merits and the relief granted is in accordance with G. L. c. 40A, Section 21, it is unnecessary to consider the disposition of the demurrer.

Decree affirmed.


FOOTNOTES

[Note 1] Several residents near the locus and in the same zoning district.

[Note 2] Edward E. Jacobs.

Home WALTER J. LYNCH'S (dependent's) CASE.

352 Mass. 782

June 5, 1967

This is an appeal from a decree of the Superior Court denying dependency compensation to a claimant widow after the single member of the Industrial Accident Board found that the employee's death did not arise out of, or in the course of, his employment and was not causally related to an industrial accident. The reviewing board adopted the findings of the single member. The employee was found dead in front of a tumbling machine which he operated at his place of employment. The case was submitted under the provisions of G. L. c. 152, Section 7A, which establishes the presumption on an employee's death that the claim comes within the provisions of the chapter, that sufficient notice of injury was given, and that the death "was

Page 783

not occasioned by the wilful intention of the employee." The presumption, however, disappears if there is substantial evidence of no causal connection between the employment and the death. Lapinsky's Case, 325 Mass. 13 , 16, and cases cited. In this case the death certificate ascribed the employee's death to an "Acute Coronary Occlusion" and a medical expert testified that the cause of death was a "sudden cardiovascular incident" unrelated to his employment. This evidence was sufficient to make the presumption inapplicable and there was thus no error. Stephen's Case, 328 Mass. 230 . LeBlanc's Case, 332 Mass. 334 .