Home A. J. WILKINSON COMPANY vs. BOSTON REDEVELOPMENT AUTHORITY.

358 Mass. 811

December 7, 1970

The plaintiff excepts to and appeals from an order of the Superior Court sustaining a demurrer to its declaration and a denial of its motion for leave to amend. The case involves an alleged agreement by the Boston Redevelopment Authority to "pay and reimburse the plaintiff for the relocation expenses which . . . [it] would incur in becoming established in a new location." We think that a recital of the facts alleged in the original declaration and in the proposed amended declaration and the grounds set out in the demurrer would not be of any particular benefit. Because we believe that the issues before us are governed by our recent decision in the case of Graphic Arts Finishers, Inc. v. Boston Redevelopment Authy. 357 Mass. 40 , a repetition of a discussion of the legal principles would not be of any special judicial value. In our view the original declaration and also the proposed amended declaration state a cause of action. Consequently, it was error to sustain the demurrer and to deny the plaintiff's motion for leave to amend. We have dealt with the case on the exceptions and do not consider the appeals.

Appeals dismissed.

Exceptions sustained.

Home GORHAM K. GOULD'S CASE.

358 Mass. 811

December 30, 1970

This is a petition for contempt alleging noncompliance by the self-insurer with a decree after rescript in a workmen's compensation case. The rescript on which the decree was based resulted from our decision in 355 Mass. 66 . After hearing, the judge denied the petition. The employee appealed. We treat the denial, although not embodied in a decree, as in substance a final decree. See Bressler v. Averbuck, 322 Mass. 139 , 143. There was no error. The judge made no findings of fact and there is no report of the evidence. "In the absence of a report of the evidence or a report by the judge of the material facts found by him, the only question open is the power of the court to enter a decree upon any evidence which might have been presented." Dunn v. McSweeney, 338 Mass. 270 , 273. The judge, to be sure, had before him a stipulation as to certain facts. But there is nothing in the record to show it to be the only evidence or facts before the court. It cannot, therefore, be said; hat, on evidence which the judge might have heard, the decision below was erroneous.

Decree affirmed.

Home MARION L. FLYNN vs. PERINI CORPORATION.

358 Mass. 811

December 30, 1970

The plaintiff excepts to the direction of a verdict for the defendant on the plaintiff's opening statement which we summarize. On November 24, 1965, the plaintiff worked as a switchboard operator for the Commonwealth's Department of Public Works on the sixth floor of the new State office building which was being erected by the defendant for the Commonwealth. While leaving the building at the end of her work day she was injured when she "slipped upon one of a number of metal strips which, with other pieces of construction debris, were strewn over . . . [the surface of a cement sidewalk near the exit door, and which] had been negligently left in the area by defendant's employees." On that date the Commonwealth was occupying only the lobby and floors 6, 10, 11 and 12 of the building; other portions were not completed.

Page 812

The plaintiff claimed and received workmen's compensation benefits from the Commonwealth for her injury, and was still receiving such benefits at the start of the trial of this action in tort against the defendant for the same injury. The sole contention of the defendant is that the plaintiff, on the date of her injury, "was assisting in the advance preparation of the building for acceptance by the Commonwealth and for use by [its] various departments," and that therefore "[b]oth the defendant and the plaintiff . . . were to that extent working for a common employer." There is no basis in the record for this contention. The verbatim report of the plaintiff's opening does not state or permit an inference that the plaintiff "was assisting in the advance preparation of the building" or that the plaintiff and defendant were in any way "working for a common employer" for the purposes of G. L. c. 152, Section 15. On this record there is no need to consider whether the Commonwealth is an "insured" or "insured person" within the definitions contained in G. L. c. 152, Section 1 (6), or to consider alleged inconsistencies on this question in the opinions in Saxe's Case, 242 Mass. 290 , Pettiti v. Edward J. McHugh & Son, Inc. 341 Mass. 566 , 571, and Moschetta v. Quincy, 347 Mass. 80 (and concurring opinion, 84-90).

Exceptions sustained.