Home ACE TROPHY COMPANY, INC. vs. MAURICE GORDON & another.

354 Mass. 767

May 31, 1968

By this bill for declaratory relief the plaintiff seeks a determination of its rights and liabilities under a lease executed on August 30, 1960, between it and Eighteen Oliver Street Co., Inc. (Oliver). The plaintiff also sought to restrain the lessor from proceeding with an action of summary process which it had commenced in the Municipal Court of the City of Boston. The defendants demurred chiefly on the ground that the plaintiff had a plain and adequate remedy at law. The judge reserved decision of the demurrer, until after he had heard the case on the merits. Olszewski v. Sardynski, 316 Mass. 715 , 717. The judge made a report of material facts. The evidence is reported. On August 13, 1965, Oliver sold the premises to Marine Realty Corp. subject to the lease. The lease ran for a term of five years and ten months from September 1, 1960. Under it the plaintiff was given the right to extend the term for a further term of five years from July 1, 1966. The right to extend was conditioned on (1) written notice before a certain date to the lessor by the plaintiff of its intention to extend and (2) the existence at that time of annual gross sales of at least $150,000. The judge found that these conditions had been satisfied, and concluded that the lease was in full force and effect. A final decree was entered enjoining the defendants from interfering with the plaintiff's lease. The judge also overruled the defendants' demurrer. Although this order was not embodied in a decree it is in substance an interlocutory decree and will be treated as such. Bressler v. Averbuck, 322 Mass. 139 , 143. The defendants appealed from the final decree but not from the interlocutory decree overruling the demurrer. Nevertheless, the correctness of the interlocutory decree is open for revision on the appeal from the final decree. See G. L. c. 214, Section 27. Rigs v. Sokol, 318 Mass. 337 . There was no error. The findings of the judge were amply supported by the evidence. The bill alleges -- and in fact there was -- an actual controversy; the case is a proper one for declaratory relief. School Comm. of Cambridge v. Superintendent of Schs. of Cambridge, 320 Mass. 516 , 518. Even if the plaintiff could set up, as it did, an equitable defence to the summary process under G. L. c. 231, Section 31, it might instead, at its option, bring this proceeding both for declaratory relief and to restrain the prosecution of the summary process. The plaintiff's remedy at law cannot be said to be plain, adequate and complete. The demurrer was rightly overruled. This aspect of the case is governed by Elm Farm Foods Co. v. Cifrino, 328 Mass. 549 .

Decree affirmed with double costs.

Home CHESTER J. ZAROZINSKI'S CASE.

354 Mass. 767

May 31, 1968

On April 29, 1965, a driver, during a trip on a trailer truck containing lumber, assisted in changing the position of his heavy load and reloading lumber when some of the load shifted, causing the truck to lean. Thereafter he had persistent chest pains. He reported the condition to a supervisor. For nearly a month he was in a

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hospital. There was a diagnosis of coronary occlusion. Medical testimony indicated that the exertion was a precipitating factor. Upon the somewhat conflicting expert and other testimony, there was substantial basis for concluding (a) that the employee sustained a compensable injury; (b) that the injury caused his total disability and subsequent partial disability (because truck driving would have been too strenuous work after the employee's severe heart attack); (c) that the employee had prompt, adequate treatment; and (d) that "the insurer had ample opportunity to investigate . . . and was . . . in no way prejudiced." Dr. Budnitz's testimony about the cause of disability, in context, could reasonably be viewed as including all the subsequent disability. Cross-examination did not establish that his opinion must be interpreted otherwise. See Garrigan's Case, 341 Mass. 413 , 416. See also Smith's Case, 349 Mass. 772 . Dr. Budnitz's testimony was not too ambiguous (cf. Molloy v. Kizelewicz, 343 Mass. 402 , 405) to sustain the board's conclusions. It was within the single member's discretion reasonably to control cross-examination concerning the employee's driver's daily log for days other than those of the particular trip. See McLean's Case, 323 Mass. 35 , 39; Commonwealth v. Binkiewicz, 342 Mass. 740 , 755.

Final decree affirmed.

Costs of appeal are to be determined by the single justice.