Volume 1975 Article 3

Annual Survey of Massachusetts Law Volume 1975 Article 3 1-1-1975 Table of Contents Boston College Annual Survey of Massachusetts Law Follow this and additional works at: http://lawdigitalcommons.bc.edu/asml Recommended Citation Boston College Annual Survey of Massachusetts Law (1975) "Table of Contents," Annual Survey of Massachusetts Law: Vol. 1975, Article 3.

Boston College Annual Survey of Massachusetts Law: Table of Contents IN MEMORIAM: John D. O'Reilly, Jr. CHAPTER 1 TORTS A. 1.1 1.2 B. 1.3 1.4 c. 1.5 1.6 D. 1.7 E. 1.8 F. 1.9 1.10 NEGLIGENCE Overruling Established Common Law: Retroactivity Product Ltability: Evidence of Post-Sale, Pre-Accident Improvements IMMUNITY Immunity: Commonwealth of Massachusetts Charitable Immunity: Non-Retroactivity MOTOR VEHICLES Pain and Suffering: Proof of Medical Expenses Pain and Suffering: Non-Resident Drivers DEFAMATION Libel: Application of Gertz Doctrine MEDICAL MALPRACTICE Medical Malpractice: Preliminary Determination of Sufficiency of Evidence INTEREST ON DAMAGES Interest on Damages STUDENT COMMENT Wrongful Death: Mone v. Greyhound Lines, Inc. 3 5 8 9 11 13 15 20 22 22 CHAPTER 2 WORKMEN'S COMPENSATION LAW 2.1 Double Compensation: Serious and Wilful Misconduct of One Exercising Superintendence 38 2.2 Death of Employee at Place of Employment: Prima Facie Evidence: Compensability 42 2.3 Specific Compensation: Loss of Hearing: Loss of Binocular Vision by Injury to One Eye Only 45 Published by Digital Commons @ Boston College Law School, 1975 1

Annual Survey of Massachusetts Law, Vol. 1975 [1975], Art. 3 viii CHAPTER 3 INSURANCE LAW A. 3.1 3.2 B. 3.3 COURT DECISIONS No-fault Insurance: Recovery for Pain and S~ffering 49 Property Protection Insurance: Interinsurer Subrogation 53 LEGISLATION Medical Malpractice 55 CHAPTER 4 CONTRACTS 4.1 4.2 4.3 4.4 4.5 Real Estate Broker's Commission: New Rule Employee Covenants Not to Compete. Guarantor's Liability: BankDeposit: Set Off' Public Contract: Binding: Damages Specific Performance: Misrepresentation: Estoppel 58 61 64 66 68 CHAPTER 5 TRUSTS AND ESTATES 5.1 Reopening Fiduciary Accounts on Grounds of Technical Fraud 73 5.2 Interpretation of Wills: Exercise of Power o~ Appointment and Conflict of Laws 75 5.3 Power of Appointment and Applicability of Statutory Rules of Construction Equating Adopted Issue with Biological Issue 78 5.4 Interpretation of Wills and Trusts: Testator's Intention to Have Marital Trust Qualify for Federal Estate Tax Marital Deduction 81 DOMESTIC RELATIONS CHAPTER 6 A. 6.1 6.2 COURT DECISIONS Divorce: Counsel Fees: Equal Protection Divorce: Jurisdiction to Award Child Support! 87 88 http://lawdigitalcommons.bc.edu/asml/vol1975/iss1/3 2

Boston College Annual Survey of Massachusetts Law: Table of Contents ix 6.3 ' 6.4 6.5 6.6 6.7 6.8 6.9 B. 6.10 6.11 Divorce: Merger of Separation Agreements 90 Divorce: Contempt: Payment of Support by Collateral Sources 91 Divorce: Contempt: Nature and Specificity of Charge 94 Divorce: Financial Obligations Discharged by Bankruptcy 96 Divorce: Presumption of Gift to Joint Fund Rebutted 98 Divorce: Appeal from Decree Nisi 99 Separate Support: Factors to be Considered 104 LEGISLATION Divorce: Jurisdiction 105 Divorce: Orders to Vacate the Marital Home 106 CHAPTER 7 CRIMINAL LAW AND PROCEDURE 7.1 Trial De Novo 7.2 The Role of the Jury in a Criminal Case 7.3 Pre-Trial Discovery STUDENT COMMENT 108 119 129 7.4 Instructing the Jury on the Consequences of an Acquittal by Reason of Insanity: Commonwealth v. Mutina 135 LABOR LAW CHAPTER 8 A. UNITED STATES SUPREME COURT DECISIONS 8.1 Antitrust Exemption of Labor Unions 148 8.2 Veterans' Rights 151 8.3 Right of Minority Workers to Engage in Separate Bargaining 152 8.4 Employees' Right to Union Representation During an Investigatory Interview 153 8.5 Recognition on the Basis of Authorization Cards 154 B. MASSACHUSETTS DECISIONS 8.6 Power of Labor Relations Commission to Order Binding Arbitration 156 8.7 Authority of an Arbitrator 158 8.8 Grooming Codes Published by Digital Commons @ Boston College Law School, 1975 3

Annual Survey of Massachusetts Law, Vol. 1975 [1975], Art. 3 X c. 8.9 8.10 8.11 LABOR RELATIONS COMMISSION DECISIONS Managerial Employees Bargaining Unit Determinations Subjects of Bargaining 159 163 164 CHAPTER 9 CONSUMER LAW 9.1 9.2 9.3 9.4 9.5 9.6 9.7 9.8 Chapter 93A, The Consumer Protection Act Consumer Protection: Limitation on Actions, Money and Property Exempt from Creditors Credit Card Users' Claims and Defenses: Federal Limitations Correction of Erroneous Billings Door-to-Door Sales: Cancellation of Contracts Warranties Debt Collections 165 171 173 175 177 181 182 186 CHAPTER 10 STATE AND LOCAL GOVERNMENT A. DISTRIBUTION OF POWERS 10.1 Powers of the Attorney General 10.2 Legislative Control of Agency Action 10.3 Legislation: Meetings of Governmental Bodies B. ELECTIONS 10.4 Campaign Financing 10.5 Voter Registration c. PUBLIC EMPLOYEES 10.6 Civil Service Appointment Priorities 10.7 Grooming Codes 10.8 Permissible Scope of Inquiry into Off-Duty Conduct 10.9 Political Activity by Police Officers 10.10 Conflict of Interest Statute: Implied Private Right of Action 10.11 Municipal Treasurers: Deposit of Funds D. HOMERULE 187 189 191 192 193 194 195 195 196 197 198 10.12 Validity of Municipal Ordinance Altering form of Plan- ~&~ I ~~ http://lawdigitalcommons.bc.edu/asml/vol1975/iss1/3 4

Boston College Annual Survey of Massachusetts Law: Table of Contents xi 10.13 Validity of Hybrid Charter 199 10.14 Powers of School Committee: Sick Leave Bank 200 10.15 Charter Revision: Term of Office of Mayor 200 CHAPTER 11 STATE AND LOCAL TAXATION 11.1 A. 11.2 :11.3 11.4 11.5 11.6 11.7 11.8 11.9 11.10 11.11 B. 11.12 11.13 11.14 11.15 11.16 11.17 11.18 11.19 c. 11.20 11.21 11.22 Introduction 202 REAL AND PERSONAL PROPERTY TAXES Equalized Valuations 202 Disproportionate Assessments 207 Real Estate Tax: Methods of Valuation 212 Abatement Applications: Time for Filing 213 Exemption for Property of Another Municipality 214 Charitable Exemption: Use of Property on January 1 215 Charitable Exemption: Foreign Charitable Corporations 217 Charitable Exemption: Cemeteries 219 Charitable Exemption: Parsonages 220 Personal Property Tax: Exemption for Household Effects 220 SALES AND USE TAXES Sales Tax: Immunity of Federal Reserve Banks Use Tax on Ships Built Outside Massachusetts Sales and Use Tax: Prizes Awarded in 221 223 Amusement Games 224 Sales Tax: Credit Sales 224 Sales and Use Taxes: Newspaper Advertising Supplements 225 Sales and Use Taxes: Property Purchased and Shipped to Out-of-State Branch Offices: Commercial Art Work 226 Sales Tax: Purchase or Lease of Motion Pictures For Television Broadcasting 228 Sales Tax: Materials, Supplies and Machinery Purchased by a Heating Contractor 228 PERSONAL INCOME TAXES Income from Out-of-State Real Estate 229 Chapter 555 of the Acts of 1971: Deductions Against Income Taxable at the Rate of 9 Percent 235 Chapter 555 of the Acts of 1971: Trusts With Transferable Shares 238 Published by Digital Commons @ Boston College Law School, 1975 5

Annual Survey of Massachusetts Law, Vol. 1975 [1975], Art. 3 xii 11.23 Fiduciaries: Income Accumulated for Nonresidents 242 11.24 Appeal from Denial of Abatement Application: Time Requirements 245 11.25 Administrative Rulings Relating to ERISA 245 D. CORPORATE EXCISE TAXES 11.26 Security Corporations 246 11.27 Apportionment Percentage: Sales Factor 248 11.28 Classification as Business Corporation or Manufacturing Corporation 249 11.29 Estimated Tax Payments 251 E. INHERITANCE TAXES 11.30 Life Estates with Power to Invade Principal 252 11.31 Widow's Benefits 253 F. MISCELLANEOUS DEVELOPMENTS 11.32 New Administrative Provisions 254 11.33 Appellate Tax Board: Practice Procedure 254 CONSTITUTIONAL LAW 12.1 12.2 12.3 12.4 12.5 12.6 12.7 CHAPTER 12 Prejudgment Possessory Remedies and Due Process: Review of Supreme Court Decisions Prejudgment Possessory Remedies: Self-Help and State Action Retroactivity of Supreme Court Holdings on 257 262 Prejudgment Attachments 271 Official Inquiry into Off-Duty Conduct of Police Officers 278 Anonymous Publication of Election-Related Material 284 Requirement of Parental Consent to Minor's Abortion 287 Exclusion of Employables from General Relief: Irrebuttable Presumptions and the Right to Welfare 297 12.8 Warrantless Arrests in a Dwelling 304 STUDENT COMMENT 12.9 State Action-Seizures under Authorization of Lessors' Lien Statutes: Davis v. Richmond and Porter v. Fleischhacker 311 http://lawdigitalcommons.bc.edu/asml/vol1975/iss1/3 6

Boston College Annual Survey of Massachusetts Law: Table of Contents XIII CHAPTER 13 CIVIL PRACTICE AND PROCEDURE 13.1 13.2 13.3 13.4 13.5 13.6 13.7 Introduction: A Year of Practice under the New Rules 332 Interpretation of Massachusetts Rules of Civil Procedure 332 The Doctrines of Primary Jurisdiction and Exhaustion of Administrative Remedies 334 Class Actions: Mootness 340 Discovery: Equitable Bill 344 Summary Affirmance of Appeals 347 The New District/Municipal Courts Rules of Civil Procedure 352 CHAPTER 14 EVIDENCE 14.1 Introduction 360 14.2 Relevancy: Evidence of Post-Scale, Pre- Accident Improvements 360 14.3 Impeachment: Records ofjuvenile Offenses 365 14.4 Impeachment: Civil Cases: Records of Prior Convictions 367 14.5 Implied Admissions: Failure to Call a Witness 373 14.6 Attorney-Client Privilege 375 14.7 Scientific Evidence: Results of Breathalyzer Test 376 STUDENT COMMENT 14.8 Admissibility of Expert Testimony Based on Voice Spectrograms: Commonwealth v. Lykus 377 CHAPTER 15 EDUCATION LAW 15.1 A. 15.2 Introduction DESEGREGATION Overview 396 396 Published by Digital Commons @ Boston College Law School, 1975 7

Annual Survey of Massachusetts Law, Vol. 1975 [1975], Art. 3 xiv 15.3 15.4 15.5 15.6 B. 15.7 15.8 15.9 15.10 15.11 15.12 15.13 15.14 The Contempt Order 397 Developing the Phase II Desegregation Plan 400 The Court's Phase II Plan 404 Teacher Desegregation 411 OTHER DEVELOPMENTS Racial Balance 413 Special Education: Chapter 766, 417 Special Education: Application of Appropri4tted Fungs 418 Student's Rights 420 School Officials: Liability for Damages 421 Elementary and Secondary Education Act of 1965: Title III 423 Aid to Parochial Schools: Constitutionality 425 Legislation 429 CHAPTER 16 PROPERTY AND CONVEYANCING 16.1 16.2 16.3 16.4 16.5 16.6 16.7 16.8 16.9 16.10 16.11 16.12 Recording: Chain of Title: Deeds Out from a Common Grantor 431 Real Estate Broker's Commission: When Earned 434 Recording: Modification of Recorded Instruments 436 Recording: Notice of Lease and Option to Rurchase 440 Effect of a Change in Zoning in the Marketabitity of a Title 442 Leases: Effect of a Taking by Eminent Domain 446 Exercise of Option: Notice 448 Mortgages: Foreclosures 448 Condominiums: Conversion and Rent Conttol 450 Condominiums: Unit Restrictions 451 Conveyances between Spouses 453 Public Housing 453 CHAPTER 17 CORPORATIONS 17.1 17.2 The Impact of Donohue v. Rodd Electrotype Co. on the La~ of Corporate Freeze-Outs Closely Held Corporations: Fiduciary Duty rf Majority Stockholders 455 470 http://lawdigitalcommons.bc.edu/asml/vol1975/iss1/3 8

Boston College Annual Survey of Massachusetts Law: Table of Contents XV CHAPTER 18 ENVIRONMENTAL LAW 18.1 18.2 18.3 18.4 18.5 18.6 18.7 18.8 18.9 18.10 18.11 18.12 18.13 18.14 18.15 Introduction 477 Environmental Impact Review: Introduction 477 NEPA Amendment: Environmental Impact Statements Prepared by State Agencies 479 MEPA Regulations: Executive Office of Environmental Affairs: Revised Guideline Regulations 481 MEPA Enforcement: Massport II 482 MEP A: Portents 488 Regulations of Pesticides in Massachusetts: Pending Developments 488 Safe Drinking Water Act: Introduction 490 Safe Drinking Water Act: Background 491 Safe Drinking Water Act: Analysis of Principal Sections 492 Safe Drinking Water Act: Federal Implementation 498 Air Pollution: Introduction 503 Air Pollution: Train v. Natural Resources Defense Council 503 Air Pollution: Bicknell v. City of Boston 505 The Boston Transportation Control Plan 510 ZONING AND LAND USE A. ZONING 19.1 19.2 19.3 19.4 19.5 19.6 19.7 19.8 19.9 19.10 19.11 CHAPTER 19 Exclusionary Zoning 513 Interim Zoning: Moratorium on Apartment Construction 519 Spot Zoning: General Welfare as Justification 524 Zoning Amendment: Applicability to Building Permit Under Appeal 525 Special Permits: Standing to Challenge: Person Aggrieved; Waiver of Notice Requirement 526 Special Permit: Power in the Superior Court to Remand a Case to the Local Board; Power to Modify Defective Permit 529 Special Permits: Failure to Comply with Notice Provisions 531 Zoning: Access Roads 533 Jurisdiction: Failure to File Decision Within Sixty Days 536 Remedies: Destruction of a Noncomplying Building 537 Remedies: Invalid Variance for Federally Funded Housing 539 Published by Digital Commons @ Boston College Law School, 1975 9

Annual Survey of Massachusetts Law, Vol. 1975 [1975], Art. 3 xvi 19.12 Public Utilities: Extent of Local Authority! 540 19.13 Subdivision Plan: Applicability of Zoning APiendment 545 19.14 Pending Trailer Park Use: Effect of Zoning Amendment 547 B. SUBDIVISION CONTROL 19.15 Subdivision Control: Dead-End Streets 549 19.16 Subdivision Control: Constructive Approval of Submitted 19.17 Plan 550 Subdivision Control: Applicability of Anti-Sfob Zoning Law 551 c. EMINENT DOMAIN 19.18 Eminent Domain: Concurrent Remedies 552 19.19 Eminent Domain: Admissibility of Assessed!valuation 553 19.20 Eminent Domain: Assessment of Damages 555 19.21 Government Land Bank 556 D. RENT CONTROL 19.22 Rent Control: Revocation of Acceptance 557 19.23 Rent Control: Applicability of Rollback Pro~ision to Pre-Existing Leases I 559 19.24 Rent Control: Condominiums 562 19.25 Rent Control: Scope of Judicial Review 566 E. WETLANDS 19.26 Wetlands Legislation 568 http://lawdigitalcommons.bc.edu/asml/vol1975/iss1/3 10