Volume 1973
Article 3
1-1-1973
Table of Contents
Boston College Annual Survey of Massachusetts Law
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TABLE OF CONTENTS
CHAPTER 1
PROPERTY AND CONVEYANCING
§1.1 Abolition of the doctrine of worthier title 3
§1.2 Joint tenants-husband and wife 9 §1.3 Landlord and tenant: Termination of tenancy at will 10 §1.4 Landlord and tenant: Expanding civil remedies for the
tenant 12
§1.5 Landlord and tenant: Rent witholding 15
§1.6 Mortgages 16
§1.7 Deeds 17
§ 1.8 Miscellaneous · 18
STUDENT COMMENT
§1.9 Residential leases: Implied warranty of habitability: Boston Housing Authority v. Hemingway 18
CHAPTER 2
EVIDENCE §2.1 §2.2 §2.3 §2.4 §2.5 §2.6 §2.7 §2.8 §2.9 §2.10 §2.11 §2.12 §2.13 §2.14 Introduction
Criminal identification evidence Criminal confessions and admissions Discovery and use of exculpatory evidence Grand jury evidence
Conspiracy
Sexually dangerous persons Expert opinion
Photographic evidence Burdens of proof
Administrative proceedings Personal injury evidence Hearsay exceptions
Massachusetts evidentiary statutes
viii TABLE OF CONTENTS
STUDENT CoMMENT
Loss of bailed goods by fire: Shifting of the burden of §2.15
proof to the bailee: Knowles v. Gilchrist Co. 61
CHAPTER 8
STATE LABOR LAW
§8.1 Introduction 90
A. CoURT DECISIONS
§8.2 Jurisdiction of the Massachusetts Labor Relations
Com-mission 91
§8.8 Municipal labor law: The status of "executive officers" and "supervisors" in certification proceedings 92 §8.4 Municipal labor law: Agency service fees and municipal
contracts 95
§8.5 Scope of judicial review in labor cases 95 §8.6 Municipal labor law: The v~lidity of multi-year collective
bargaining contracts 96
B. MASSACHUSETI'S .I...ABOR RELATIONS CoMMISSION DECISIONS
§8.7 Adoption of NLRB precedents: Deference to arbitration and the Collyer principle 98 §8.8 The Commission's duty to insure fair representation
elec-tions 101
§8.9 Remedies for unfair labor practices and the definition of a labor organization 101 §8.10 Municipal labor law: The Duty to bargain in good faith 102 §8.11 Definition of "employees" for purposes of collective
bar-gaining 108
CHAPTER 4
CONTRACTS
§4.1 Non-competition covenants: Covenants ancillary to the
sale of a business 105
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ix
STUDENT CoMMENT
§4.5 Recovery for breach of a physician-patient contract: Re-liance vs. expectancy damages: Sullivan v. O'Connor 116
CHAPTER 5
WORKMEN'S COMPENSATION LAW
§5.1 Personal injury vs. "wear and tear": Back injury from repeated stress of physical labor: Date of injury: Last
insurer 132
§5.2 Personal injury: Lung diseases from cumulative exposure 135 §5.3 Arising out of: Assault by non-employee: Added-risk cases
disregarded: Need to overrule outmoded cases 137 §5.4 Evidence: Presumption of compensability (G.L. c. 152,
§7A): Effect of 1971 amendment 140
CHAPTER 6
ENVIRONMENTAL LAW
§6.1 introduction 143
A. WATER PoLLUTION CoNTROL
§6.2 Massachusetts and the Federal Water Pollution Control Act Amendments of 1972: Introduction 144 §6.3 Water quality and the NPDES 145
§6.4 Enforcement 157
§6.5 Grants for the construction of publicly-owned treatment
works 165
§6.6 Water pollution control planning 169 §6.7 Other provisions 176
B. ENVIRONMENTAL IMPACT REVIEW
§6.8 MEPA environmental impact report procedures 178
c.
Am PoLLUTION CoNTROL§6.9 Air pollution control 188 D. MISCELLANEOUS DEVELOPMENTS
X TABLE OF CONTENTS'
CHAPTER
7
INSURANCE LAW
§7.1 Unfair or deceptive acts or practices: Exhaustion of ad-ministrative remedies 196 §7.2 Automobile insurance: Coverages 196 §7.3 Automobile insurance: Assignedrisks 199 §7.4 Fire insurance 201 §7 .5 Life insurance 202 §7.6 Accident and sickness insurance 202 §7.7 Marketing: Mass merchandising of automobile and fire
insurance 204
CHAPTER 8
STATE AND LOCAL TAXATION
§8.1 Introduction 205
§8.2 Recent revisions in Massachusetts income tax basis rules 205 §8.3 Estate tax on intangibles in Massachusetts of decedents
who were non-residents of the United States 209
CHAPTER 9
DOMESTIC RELATIONS
§9.1 Introduction 220
A. CouRT DECISIONs
§9.2 Separate support: Scope of the decree 220 §9.3 Separate support: Jurisdiction 223 §9.4 Divorce: Separation agreements 224 §9.5 Divorce: Scope of the decree 226 §9.6 Foreign divorce 228 §9.7 Divorce: Psychotherapist-patient privilege in custody
pro-ceedings 229
§9.8 Adoption 230
§9.9 Guardianship 233
B.
LEGISLATIONTABLE OF CONTENTS
CHAPTER 10
COMMERCIAL LAW
§10.1 Security interest: Self-help repossession of collateral: Con-stitutionality: Due process 237 §10.2 Real estate attachment: Constitutionality of
Massachu-setts statutory procedures: Due process 240 §10.3 Status of tax escrow accounts in Massachusetts 243 §10.4 Nonsigner provision of the so-called Fair Trade Law
de-clared unconstitutional 246 §10.5 . Prohibition against discrimination in the furnishing of
credit based on sex or marital status: Penalty provisions 250 §10.6 Protection against careless and erroneous billings:
Defi-nitions of "periodic billing statement" and "statement
of account" 251
§10.7 Consumer credit transactions: Default: Repossession: Re-demption: Deficiency judgment: Notices required 252 §10.8 Maximum finance charges for consumer open end credit
transactions 254
§10.9 Credit cards: Issuance by co-operative banks 254 §10.10 Checks: "Holder in due course": "Good faith" 255 §10.11 Comptroller of the Currency: Rulings and regulations:
Authority of national banking associations to provide travel agency services 256 §10.12 Second Mortgage Statute: Increase in assessed value of
real estate subject to said statute 257 §10.13 Motor Vehicle Certificate of Title Law: Technical
Amendments 258
§10.14 Banks: Indemnification of directors, trustees, officers, employees and agents 259
STUDENT CoMMENTS
§10.15 The Fair Trade Law: Constitutionality of the nonsigner provision: Coming Glass Works v. Ann &: Hope, Inc. 260 §10.16 Consumer credit transactions: Newly modernized
repos-TORTS
A.
§11.1 §11.2
session procedures: Chapter 629 of the Acts of 1973 286
CHAPTER 11
JUDICIAL DECISIONS
Introduction
Immunity: Commonwealth of Massachusetts
xii TABLE OF CONTENTS
§lUJ Slip and fall cases: Foreign substances 307 §11.4 Automobiles: Negligent entrustment 308 §11.5 Respondeat superior: Liability of master for intentional
309 tort of servant
§11.6 Nuisance: Priority of occupation: Peculiar use of prop-311 erty
§11.7 Consequential damages: Wife's medical expenses 312
B.
LEGISLATION§11.8 Introduction 314
§11.9 Immunity for public school employees: Rendering emer-315 gency aid to students
§11.10 Statute of limitations: Tort 316 §11.11 Wrongful death: A new "compensatory" statute 316 §11.12 Comparative negligence: Recent amendments 319 §11.13 Assumption of risk: Recent statutory abolition thereof 321 §11.14 Invasion of the right of privacy: A new cause of action 322 §11.15 Snow or ice accidents: Notice 324 §11.16 Liability of lessor of goods: Warranty despite absence of
privity 325
STUDENT COMMENTS
§11.17 Tort liability of occupiers of land: Duty of reasonable care established for lawful entrants: Mounsey v. Ellard 325 §11.18 Governmental immunity from tort liability: Private
nui-349
sance actions: Morash&: Sons, Inc. v. Commonwealth §11.19 Damage to marital relationship: Cause of action for loss
of consortium recognized: Diaz v. Eli Lilly &: Co. 369 §11.20 Tort liability of non-judicial public officers: Acts
per-formed within scope of authority: Gildea v. Ellershaw 387
CHAPTER 12 LAND USE
§12.1 Premature announcement of taking: Right of owner to compensation for property value loss 402 §12.2 Taking of leasehold interest: Right of lessee to damages
from taker 404
§12.3 Discretion of public .officials: Allegations maintaining cause of action for abuse 405 §12.4 Discretion of selectmen: Taking portion of locus when
authorization was for taking of entire locus 408 §12.5 Discretion of trial judge: Award of damages and motion
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xiii
§12.6 Evidence of damages: Comparability and possibility of
re-zoning 411
§12.7 Evidence of value: Comparability and Hatch Act
Limi-tations 413
§12.8 Agricultural lands: Expansion of exemption from taking under eminent domain 414 §12.9 Historic or ancient landmarks: Preservation by taking
through eminent domain 415 §12.10 Anti-snob zoning legislation: Constitutionality and
cover-age
415§12.11 Public hearing on adoption of urban renewal plan: Legis-lative rather than adjudicatory 422 §12.12 Regional planning: Extension of coverage and public
hearing requirements 425 §12.13 'Improperly approved plan: Rescission limitations 426 §12.14 Subdivision subject to conditional approval: Time limits 428 §12.15 Amendments: Spot zoning 430 §12.16 Special permit: Discretion in granting 431 §12.17 Special permit: Consultation with planning board 431 §12.18 Amendment of board of appeals decision: Effect on
orig-inal denial 433
§12.19 Building permit: Action to avoid effect of zoning
amend-ment 435
§12.20 Appeal from decision of board of appeals: Standing as "person aggrieved" 437 §12.21 Appeal from grant of special permit: Availability of
man-dam us 438
§12.22 Time for appeal: Jurisdictional or procedural issue 440 §12.23 Estoppel by judgment: Prior mandamus action 442 §12.24 Special permit: Scope of review of denial 443 §12.25 Definition of use: Mobile home 444 §12.26 Nonconforming use: Not personal to original owner 445 §12.27 Nonconforming use: Right to rebuild after destruction 446 §12.28 Nonconforming use: Use, quality of use and difference in
kind 449
§12.29 Earth removal: Conditions imposed upon grant of permit 452
STUDENT COMMENTS
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CHAPTER 13
CRIMES
STUDENT COMMENTS
§13.1 The effect of prejudicial publicity upon the jury's im-partiality and the right to a fair trial: Commonwealth
v. Stanley 474
§13.2 Due process and the right to a fair trial: Questions re-garding racial prejudice during voir dire:
Common-wealth v. Ross 496
CHAPTER 14
CONSTITUTIONAL LAW
STUDENT COMMENTS
§14.1 Political advertising in newspapers: Unconstitutionality of legislative compulsion to publish: Opinion of the Justices to the Senate 506 §14.2 Incarceration in the Charles Street Jail violates inmates'
constitutional rights: Inmates of Suffolk County Jail v.
Eisenstadt 531
§14.3 The Massachusetts "Corrupt Practices Act": Corporate right to freedom of speech: First National Bank v.
Attorney General 546
§14.4 Obscenity revisited: Recent Supreme Court decisions 568
CHAPTER 15
STATE AND LOCAL GOVERNMENT §15.1
§15.2 §15.3 §15.4 §15.5
Municipal home rule: Local law "inconsistent with" state law
Judicial administration Elections: Political affiliations
Public employment: Residence and citizenship require-ments
Amendments to Fiscal Cycle Reform Act
STUDENT COMMENT
594 599 602 603 605
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CHAPTER 16 CIVIL PROCEDURE AND PRACTICE
§16.1 Opening statement: Risks and opportunities 636 §16.2 Personal jurisdiction: The distinction between the
"ac-tive" and "passive" purchase 641 §16.3 Aspects of handling multiparty and multiclaim
