356 Mass. 732

December 19, 1969

The insurer appeals from a final decree awarding partial disability compensation to the employee based on the difference between his agreed average wage as an unskilled worker and his agreed average weekly earning capacity as a calibrator of pumps, a highly skilled occupation. The board found on sufficient evidence that in 1962, after approximately seventeen years of service, the employee suffered a severe and disabling dermatitis of the hands caused by the use of a different kind of calibrating oil furnished by the employer. Compensation was awarded for ten months. The employee resumed work, using the oil which earlier had proved harmless, until 1966, when the different kind of oil was reintroduced by the employer resulting in "a flare-up of severe dermatitis," and the re-classification and assignment of the employee as an unskilled laborer. The insurer concedes that at the hearing on the present claim it agreed that the employee was allergic to the different calibrating oil. The agreement, in context, dispensed with the need of medical opinion testimony to show that the dermatitis arose out of and in the course of his employment.

Decree affirmed.

Costs of appeal to be determined by the single justice.

Home PHYLLIS VOGEL & another vs. ALDEA PLASSE & another.

356 Mass. 732

December 22, 1969

In this action of tort for personal injuries and consequential damages the jury returned verdicts for the plaintiffs. The defendants excepted to the denial of their motions for directed verdicts and for entry of verdicts in their favor on leave reserved. The plaintiffs were tenants at will in a two family house owned by the defendants. The female plaintiff was allegedly injured while descending the back stairway. The sole issue before us is whether the defendants were in control of the stairway where the fall occurred. A detailed recital of the evidence would serve no useful purpose. From a careful examination of the evidence we are of opinion that with the evidence taken in the light most favorable to the plaintiffs the jury were warranted in finding that the defendants were in control of the stairway. Nash v. Webber, 204 Mass. 419, 425.

Exceptions overruled.


356 Mass. 732

December 23, 1969

The Northborough planning board under G. L. c. 40A, Section 21, appealed to the Superior Court from the granting of a variance by the Northborough zoning board of appeals which authorized a certain area to be used as a "drive-in theatre" in a district zoned for residential purposes. A judge of the Superior Court entered a decree annulling the variance. The case is here on the owner's appeal from the

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decree. The judge made a report of material facts and the evidence is reported. The record clearly shows that the board of appeals did not find or include in its decision that the granting of the variance would be "without substantial detriment to the public good." G. L. c. 40A, Section 15, cl. 3, as amended through St. 1958, c. 381. The burden is on the applicant for the variance and upon the board of appeals to go forward with evidence that the statutory prerequisites for the granting of a variance have been met. Sullivan v. Board of Appeals of Canton, 345 Mass. 117, 119-120. In view of the foregoing we see no need to discuss other aspects of the case.

Decree affirmed.