Table of Contents

Annual Survey of Massachusetts Law

Volume 1971

Article 3

1-1-1971

Table of Contents

Boston College Annual Survey of Massachusetts Law

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TABLE OF CONTENTS

I PUBLIC UTILITIES

§l.l §1.2 §1.3 §1.4 §1.5 §1.6 §1.7 Introduction

A. CouRT DECISIONs

Boston Gas Co. v. Department of Public Utilities Mystic Valley Gas Co. v. Department of Public

Utilities

B. ADMINISTRATIVE DECISIONS Maximum rate order on towing by police

Denial by D.P.U. of increase in minimum rates for the carriage of dump truck commodities

Regulations on billing and termination procedures for residential customers of gas and electric companies

C. LEGISLATION Acts of 1971, c. 1093

2 WELFARE LAW

§2.1 §2.2 §2.3 §2.4 §2.5 §2.6 §2.7 §2.8 §2.9 Introduction

Assistance payments and related benefits: Right of striking workers to public assistance

Administrative procedures: Right to a full hearing Reduction of benefit payments: Administrative

regulations and individual need

Aid to Families with Dependent Children: Flat grant system

General Relief program: Administrative modifications Legislation

Budget considerations Conclusion

3 STATE AND LOCAL TAXATION

§3.1

§3.2 §3.3

Introduction

A. INCOME TAXES Definitions

Classes of income under the 1971 amendment

Vlll TABLE OF CONTENTS

§3.4 Exemptions 37

§3.5 Basis of property 37

§3.6 Dividends, earnings, and profits 38

§3.7 Policy changes 38

B. CoRPORATION TAxEs

§3.8 Net income, deductions, gross investment income 39

c.

§3.9 Definitions 40

D. INHERITANCE TAXES

§3.10 Statutory changes 41

§3.11 Nonqualifiedemployee benefit plans 43 §3.12 Inheritance taxes payable out of the residue 44

E. REAL PROPERTY TAXES

§3.13 Definition of real estate 45

§3.14 Exemption for charitable organizations 48

§3.15 Assessment practices 48

4 WORKMEN'S COMPENSATION LAW

§4.1 Common employment doctrine: Abolition by

legislative amendment 50

§4.2 -Employer's liability for contribution or

indemnity to third party: Indemnification based on

active-passive negligence theory 52 §4.3 Third-party suits: Elimination of the election between

compensation and tort remedy 57

§4.4 Other amendments: Compensation orders after conference; Depositions of medical witnesses; Pre-sumption for death on premises; Coverage of nurses;

Increase in we<;!<-1y incapacity benefits 59

5 COMMERCIAL LAW

§5.1 Minor errors in financing statements 65 §5.2 Sale: Acceptance of goods; Rejection of goods;

Revocation of acceptance; Warranty 65 §5.3 Guaranty: Snelling v. State Street Bank and Trust Co. 68 §5.4 Rights and obligations of a depositary bank 72 §5.5 Payment: Check as payment; Presentment;

Certifi-cation 74

§5.6 Bankruptcy: Preference: Braunstein v. Massachusetts

§5.7 §5.8 §5.9 6 §6.1 §6.2 §6.3 §6.4 §6.5 §6.6 §6.7 §6.8 §6.9 §6.10

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Subrogation: Canter v. Schlager Legislation: Privity of contract

STUDENT COMMENT

Sufficiency of financing statements: Description of collateral: Still Associates, Inc. v. Murphy

LABOR LAW: MUNICIPAL BARGAINING

Introduction

Introduction to Massachu~tts municipal labor relations legislation

Representation of municipal employees Prohibited practices

Concerted activities of municipal employees Collective bargaining

Aids to collective bargaining: Fact-finding; Conciliation; Mediation

Collective bargaining agreements between

municipal employers and employee organizations Administrative caseload with respect to

municipal employees Conclusion

7

§7.1 §7.2 §7.3 §7.4 §7.5 §7.6 §7.7 §7.8 §7.9 §7.10

A. CouRT DECISIONS

The "stubborn child" law

Guardian of minor: Parent and child Adoption: Revocation of consent Separate support: Sale of real estate

Separation agreements: Power of probate court

B. LEGISLATION

Inheritance rights of adopted children Contested hearings: Divorce

Adoption petitions: Hearings held in chambers Protection of children who have been injured,

maltreated, or abused

Probate court: Support decrees: Jail sentences

C. STUDENT CoMMENT

lX 79 82 82 95 99 101 105 107 107 110 112 118 119 124 124 125 128 129 130 130 130 131 131

X TABLE OF CONTENTS

8 ENVIRONMENTAL LAW

§8.1 §8.2 §8.3 §8.4 §8.5 §8.6 §8.7 §8.8 §8.9 Introduction

A. PRIVATE RIGHT OF AcTION

Scope of the right Procedure Defenses Remedies

B. STATUTORY RIGHT OF INTERVENTION

Right of intervention in adjudicatory proceedings

c.

The federal scheme The Massachusetts scheme Comment

D. STUDENT COMMENT

§8.10 Inaction of town government in correcting source

149 150 153 155 158 159 160 165 168

of water pollution: McMahon v. Town of Grafton 171

9 CONTRACTS

§9.1 §9.2 §9.3 §9.4 §9.5 §9.6 Introduction

Attorney's fee contracts: Judicial nullification of unconscionable terms

Enforcement of private contracts that promote public policy: Equal opportunity clause Formation of a contract: Negotiations falling

short of a binding agreement

Covenants not to compete: Violation of decree enforcing covenant: Damages; Attorney's fees

STUDENT CoMMENT

Attorney-client fee arrangements: Mcinerney v. Massasoit Greyhound Association

10 CIVIL PROCEDURE AND PRACTICE

§10.1

§1G.2

§10.3 §10.4

Personal jurisdiction: Matters of substance and form

Massachusetts appellate procedure: Away out of the maze?

Trustee process: Amendment to conform with writ Proposed rules of trial and appellate procedure

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11 INSURANCE LAW

§11.1 §11.2 §11.3 §11.4 §11.5 §11.6 §11.7 §11.8 §11.9 §11.10

A. CouRT DECISIONS

Motor vehicle insurance rate cases: Attacks on constitutional and procedural grounds Motor vehicle liability insurance: Scope of

definition of the insured

-Breach of cooperation and assistance cia use -Limitation of liability

Disability insurance: Definition of total disability -Statements in the policy application

Life insurance: Misrepresentation in policy application

-Waiver of premiums

Business interruption loss insurance: Mitigation of loss

Medical service corporation: Participation of podiatrists

B. LEGISLATION

§ 11.11 Advance payments by insurers: Notice of statute of limitations

§ 11.12 Group insurance: Public employees

§11.13 Regulation of insurers: Authorized investments § 11.14 -Crime of criminal usury

§11.15 Optional uninsured motor vehicle coverage: Establishment of rates

§ 11.16 Miscellaneous acts

C. No-FAULT AuToMOBILE INsURANCE §11.17 Introduction

§ 11.18 Personal Injury Protection plan: Constitutional challenge

§11.19 No-faultpropertydamage

D. STUDENT CoMMENT

§ 11.20 Sufficiency of Massachusetts casualty insurance rate regulatory provisions under the McCarran Act:

Xl 225 228 230 231 232 233 235 236 237 238 238 239 240 241 241 242 243 244 247

Flemingv. Travelers Indemnity Co. 250

12 PUBLIC HOUSING

§12.1 Introduction

A. OVERVIEW OF FEDERAL AND MASSACHUSETTS PUBLIC HOUSING PROGRAMS

§12.2 Massachusetts housing authorities

270

Xll §12.3 §12.4 §12.5 §12.6 §12.7 §12.8 §12.9 §12.10

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Supervisory agencies Tenant organizations

Family housing and housing for the elderly: The federal programs

-The Commonwealth's programs Modernization: The federal' program -The Commonwealth's program Leased housing: The federal program

Rental assistance: The Commonwealth's program

B. RECENT DEVELOPMENTS AND CURRENT IsSUES

§ 12.11 Lease forms and grievance procedures in federal

272 273 273 276 279 280 280 281

public housing 282

§12.12 Evictions from the Commonwealth's public housing 284

§12.13 Rental assistance 289

§12.14 Limit on rents 291

§12.15 Other recently enacted state laws applicable to

public housing 292

§12.16 Tenantorganizations 293

§12.17 Regulations for the Commonwealth's public housing 295

§12.18 Conclusion 298

c.

§ 12.19 Eviction of tenants from government subsidized, privately owned low-income housing: McQueen v.

Druker 299

13 TORTS

§13.1 §13.2 §13.3 §13.4 §13.5 §13.6 §13.7 §13.8 §13.9 §13.10 §13.11 §13.12 §13.13 §13.14 Introduction

A. LEGISLATION

Motor vehicles: No-fault property damage Insurance

Products liability: Privity of contract

Charitable organizations: Limitation of immunity Automobile guests: Ordinary care

Wrongful death

Fraud and deceit: Treble damages Trade regulations: Consumer protection Nuisance: Environmental protection

B. CouRT DEcisioNs Damages: Contribution

-Mental distress -Loss of consortium

False imprisonment: Shoplifting Defamation: Public figure

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§13.15 Proximate cause: Sudden emergency 326 §13.16 Interference with advantageous relationships 327 §13.17 Trademarks: Unfair competition: Passing off 328

c.

§13.18 Products liability: Privity of contract entombed 328 §13.19 Bailment: Parking facility owners and their

cus-tomers: Hale v. Massachusetts Parking Authority 339 §13.20 Intentional infliction of severe mental distress

with consequential physical injury: Recognition of

an independent tort: George v. Jordan Marsh Co. 348

14 EVIDENCE

§14.1 Prejudicial inferences: Evidence of concealed weapons 362 §14.2 Prejudicial testimony: Evidence of defendant's

marital status in prosecution for rape 365 §14.3 Disqualified testimony: Protection of private

conversations between spouses 366

§14.4 Privileged communications: Patients and

psychotherapists 369

§14.5 Unsworn statements to the jury; Refusal of one defendant to answer questions exculpating another:

Commonwealth v. O'Brien 371

15 STATE AND LOCAL GOVERNMENT

§15.1 Introduction 378

A. CouRT DECISIONS

§15.2 Election contests 378

§15.3 Retirement of public officers and employees 381

§15.4 Collective bargaining 383

B. LEGISLATION

§15.5 Competitive bidding 384

§15.6 Statutory modifications to the civil service laws 384

§15.7 Gambling 386

§15.8 Housing court for the city of Boston 387

§15.9 Taking of land for taxes 389

§15.10 Parking; Streets; Litter 389

§15.11 Fiscal cycle of political subdivisions 390

c.

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16 CONSTITUTIONAL LAW

§16.1 Religion and the state 408

§16.2 Academic freedom: Students and teachers 412 §1"6.3 N a-fault automobile insurance 414 §16.4 Disturbers of the peace and stubborn children 415 §16.5 Criminal procedure: Recent Massachusetts decisions 417

§16.6 Miscellaneous decisions 425

§16.7 Supervision of the judiciary 429

§16.8 Privileged communications: Constitutional right

of newsmen to protect sources 431

STuDENT CoMMENTs

§16.9 Constitutionality of public school regulations 433 §16.10 Expansion of the constitutional privilege to defame:

Priestley v. Hastings and Sons Publishing Co. 442 §16.11 Successive prosecutions for the same criminal act:

Commonwealth v. White 453

§16.12 Grand jury: Indictment by fictitious name: Connor

v. Picard 463

§16.13 Prisoners' rights: Access to the courts; Due process

in disciplinary proceedings 473

17 LAND USE LAW

A. ZoNING

§17.1 Amendment procedures: Protests by affected

property owners: Constitutional questions 485 §17.2 Appeals from decisions of the Board of Appeal of

Boston: Requirement for an appeal bond 487 §17.3 Control over coastal wetlands: Interrelationship

between state regulations and local zoning laws 489 §17.4 Zoning boards of appeals and the courts: Extent

of appellate jurisdiction 490

§17.5 Statutory procedure: Notice to abutters of the

abutters 492

B. SuBDIVISION CoNTROL

§17.6 Effect of zoning changes on previously submitted

development plans 494

§17.7 Subdivision plans: Constructive approval:

Attemps to rescind approval 497

§17.8 Planning board: Implied power to require

performance bonds 499

§17.9 Planning board approval: Effect on other

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18 CRIMINAL LAW AND PROCEDURE

§18.1 Introduction 503

A. jURY TRIAL AND jURORS

§18.2 Right to jury trial: Delinquency adjudication

proceedings 503

§18.3 -Increased sentence on appeal 508

§18.4 Impartiality of jury proceedings: Change of venue

for misdemeanors 512

§18.5 -Failure to challenge repeat jurors 513 §18.6 Juror misconduct: Defendant's right to be present

at voir dire 514

§18.7 Jury trial proceedings: Capital offenses 515

B.

§18.8 Issuance of search warrant: Affidavit sufficient to

establish probable cause: Credibility of informant 518 §18.9 -Impartial magistrate. Warrantless searches and

seizures: Incident to a valid arr~st; Involving auto-mobiles; In plain view. Receipt of evidence from a

third party 524

c.

affirmative defense: Commonwealth v. Moore 533

19 RULES OF CRIMINAL PROCEDURE FOR THE DISTRICT COURTS

§19.1 Introduction 542

§19.2 Initial Rules of Criminal Procedure for the District Courts of Massachusetts: Official text plus Chief

Justice's comments 543

STUDENT CoMMENT

§19.3 Acceptance of guilty pleas in state court criminal

proceedings 550

20

§2l.l Introduction 562

§20.2 Discrimination in employment: Statutory remedies 562 §20.3 -Women's protective laws; Additional subjects 565 §20.4 Discrimination in public accommodations 569

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§20.5 Individual rights: Retention of maiden name §20.6 Discrimination in public education

§20.7 Conclusion

21 ADMINISTRATIVE LAW

A. CouRT DEcisiONs

§2l.l Introduction

§21.2 Sufficiency of administrative findings §21.3 Power of reviewing court to hear evidence

B. LEGISLATION §21.4 Publication of administrative regulations

Table of Statutes Table of Cases Cumulative Index

570 571 575

576 576 578

580

1971

Annual Survey of