357 Mass. 772

April 14, 1970

In this action of summary process commenced in a District Court there was a finding for the plaintiff for possession. Following the disallowance of a report by the trial judge, the defendant brought a petition in the Appellate Division for the establishment of the report. That court correctly ruled that it was without jurisdiction for the reason that appeals in summary process cases lie to the Superior Court. See G. L. c. 239, Section 3, as amended.

Order dismissing petition affirmed.

Home LAURENCE CHIN'S (dependent's) CASE.

357 Mass. 772

May 1, 1970

On January 15, 1963, the employee, twenty-six years old, fell from the twenty-first to the tenth floor of the Prudential building, then under construction, and suffered multiple injuries from which he died several hours later. Under G. L. c. 152, Section 36A (as amended through St. 1951, c. 494), the claimant widow sought specific compensation provided by Section 36 (as amended through St. 1962, c. 471, Section 1), for total loss of function of both arms and both legs, total loss of vision, hearing and smell, other losses of bodily functions, and disfigurement. The insurer appeals from a final decree awarding the claimant compensation for total loss of function of both arms and both legs, disfigurement, and the loss of other bodily functions. The decree is based on the decision of the reviewing board which must be upheld if warranted by the evidence and not tainted by error of law. McCann's Case, 286 Mass. 541, 543. Webb's Case, 318 Mass. 357, 358. Mahoney's Case, 337 Mass. 629, 631. There was evidence, which even though contradicted, supports the decision of the board. Adams's Case, 339 Mass. 772. See Sevigny's Case, 337 Mass. 747. The decree does not dispose of the claims for loss of vision, hearing and smell. The decree is to be modified by adding the words, "the claims for loss of vision, hearing and smell are dismissed." Taylor's Case, 355 Mass. 797. As so modified, the decree is affirmed. Costs of appeal are to be determined by the single justice.

So ordered.


357 Mass. 772

May 1, 1970

On June 6, 1968, the Probate Court entered a decree that the petitioner (wife) was living apart from the respondent (husband) for justifiable cause; that the wife would have the care and custody of their child, Mitchell Ira Keiter, who was born on March 30, 1967; that the husband would have the right to visit and take the child for two hours on each Sunday afternoon; and that the husband should make certain payments for the support of his wife and child. On

Page 773

March 26, 1969, the wife filed a petition to modify the decree by permitting her to leave this Commonwealth with the child and to make their permanent home in the area of the city of New York where she had lived all of her life before her marriage and where her parents and other relatives still lived. After a contested hearing the Probate Court entered a new decree on June 11, 1969, allowing the wife to move to New York with the child, and changing the days and hours on which the husband might see and have custody of the child. The husband appeals from the second decree. The evidence is reported. All questions of law, fact and discretion are therefore open for our decision. The trial judge made a report of the material facts found by him. We may find facts in addition to those found by him; and, if satisfied that he was plainly wrong in the findings which he made, we may make findings contrary thereto. White v. White, 322 Mass. 30, 31. Sulmonetti v. Hayes, 347 Mass. 390, 391. The evidence consists principally of oral testimony. The trial judge had the benefit of seeing and hearing the witnesses, and we did not. His findings are justified by the evidence in the record, they are not plainly wrong, and we agree with them. The facts found support the decree from which the husband is appealing. There was no error.

Decree affirmed.

Costs and expenses of appeal may be awarded in the discretion of the Probate Court.