Home PETER SELVETTI & others vs. BUILDING INSPECTOR OF REVERE.

356 Mass. 720

June 19, 1969

In Selvetti v. Building Inspector of Revere, 353 Mass. 645 , 649, we directed that a judgment dismissing this petition for mandamus be vacated. The case has now been heard on amended pleadings. Applying the principles outlined in the first Selvetti case, we are of opinion that the trial judge reasonably concluded that the "actual operation of the intervenor's" guest house is not in violation of the Revere zoning ordinance which permits "lodging houses" and "hotels" in general residence districts. The ordinance makes no clear reference to motels. The trial judge, on conflicting testimony, was justified in deciding in effect that the guest house predominantly was used by persons or groups staying for extended periods or under continuous arrangements. The evidence disclosed that Eastern Airlines and Airline Pilots Association had made agreements on a continuing basis for rotating occupancy of certain rooms by flight crews, based elsewhere than in Boston. Flight crews of another air company had a similar but less formal continuing arrangement. These arrangements, and the seasonal occupancies by certain horse racing personnel, although in some respects unusual, seem to us consistent with ordinary concepts of a lodging house, even if under the ordinance a motel could not be operated (see Gallagher v. Board of Appeals of Falmouth, 351 Mass. 410 ; Gallagher v. Board of Selectmen of Falmouth, 352 Mass. 307 ) in the district. The guest house was not shown to have any detrimental effect upon its neighborhood. If Revere wishes to exclude this type of enterprise from the term "lodging houses," it must do so by precise language.

Judgment affirmed.

Home LEON MACHADO'S (dependent's) CASE.

356 Mass. 720

June 19, 1969

This is an appeal by the claimant widow from a decree of the Superior Court awarding her specific compensation under G. L. c. 152, Section 36 (h) (bodily disfigurement) and 36 (i) (loss of bodily functions or sense other than hearing and sight), "to be paid . . . in a bulk sum" under Section 36A. This was the same amount the single member found due. His findings and decision were adopted and affirmed by the reviewing board. The single member found that during the course of his employment the employee, a glazer, fell from the second story window of a school onto the asphalt pavement of the school yard about 10 A.M. About 10:46 A.M. a police ambulance arrived and took the employee to the hospital where he was admitted at 11:10 A.M. "[P]rior to the arrival of the ambulance . . . the employee had some degree of consciousness but was unconscious and incoherent while in the ambulance and never regained consciousness and was pronounced dead at 11:50 A.M." The claimant widow contends that, in addition to the amounts she received under G. L. c. 152, Section 36 (h) and 36 (i),

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she was entitled to compensation under Section 36 (a) (loss of or loss of use of both eyes), 36 (f) (loss of hearing of both ears), 36 (q) and 36 (n) (loss of or loss of use of either or both legs), and 36 (q) and 36 (t) (loss of or loss of use of either or both arms). She asserts that the single member's conclusion that he was "unable to determine with reasonable certainty the exact losses of bodily function this employee would have been left with had he survived for a period of time" was erroneous as a matter of law. While such a determination might have been warranted on the conflicting expert medical testimony heard (see Louble's Case, 341 Mass. 520 ), such a determination was not required as a matter of law. Barbagallo's Case, 243 Mass. 86 , 87-88. Amon's Case, 315 Mass. 210 , 214-215. Morris's Case, 354 Mass. 420 , 426.

Decree affirmed.