Dodge v. Prudential Ins. Co. of America

• Decision Date: 20 December 1961
• Citation: 179 N.E.2d 234,343 Mass. 375
• Parties: Robert G. DODGE et al., v. PRUDENTIAL INSURANCE COMPANY OF AMERICA et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 234

179 N.E.2d 234

343 Mass. 375

Robert G. DODGE et al., v. PRUDENTIAL INSURANCE COMPANY OF AMERICA et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 7, 1961.

Decided Dec. 20, 1961.

Alfred Gardner, Boston, stated the case.

William J. Speers, Jr., Boston, for defendant New England Merchants Nat. Bank of Boston.

Edward J. McCormack, Jr., Atty. Gen., pro se.

Loring P. Jordan, Jr., and James D. St. Clair, Boston, for defendant Prudential Ins. Co. of America.

Lewis H. Weinstein, Boston, for defendant Boston Redevelopment Authority.

William H. Kerr, Boston, for defendant City of Boston.

Before WILKINS, C. J., and WILLIAMS, WHITTEMORE, CUTTER and SPIEGEL, JJ.

WILKINS, Chief Justice.

This bill for declaratory relief under G.L. c. 231A is reported without decision by a single justice. G.L. (Ter.Ed.) c. 214, § 31. The plaintiffs are members of a Boston law partnership which is the depositary of duplicate originals of a signed, but undelivered lease under and agreement with the defendants The Prudential Insurance Company of America and New England Merchants National Bank of Boston. The plaintiffs are stakeholders with no pecuniary interest in the outcome of this case. Other defendants are the city of Boston and Boston Redevelopment Authority, a public body politic and corporate, organized under G.L. c. 121, § 26QQ (as amended through St.1958, c. 299). Notice was sent to the Attorney General pursuant to G.L. c. 231A, § 8.

The case is reported upon the bill, the answer, the acknowledgment of notice by the Attorney General, and a stipulation. Filed with and incorporated in the bill are a number of exhibits. ¹ The answer is that of all the defendants and admits the allegations of the bill. The stipulation by all the parties is that their rights shall be determined from the facts alleged in the bill; that these are all the material, ultimate facts from which their rights are to be determined; and that the court may draw any inferences as upon a case stated. See G.L. (Ter.Ed.) c. 231, § 126.

The deposit agreement, dated April 7, 1961, and amended July 20, 1961, recites in Section I that Prudential, as lessor, and the bank, as lessee, have executed the lease which relates to the banking unit of the Prudential center (in the Back Bay area of Boston) which is to be the bank's principal office, 'but have not delivered it as they do not want it to become effective until certain conditions have been met because it requires extensive expenditures by both parties immediately after its delivery, and if the conditions cannot be met, the amounts so expended might be lost.' The plaintiffs are to deliver the original leases if the conditions of the deposit agreement have been met; otherwise they are to destroy them.

The bill seeks a declaration whether the conditions have been met, and makes these allegations. On January 3, 1961, Prudential filed with the Authority an application for the approval of a project to be built at the center. On March 22 a public hearing was held by the Authority. On June 14 the application was amended. On July 7 another public hearing was held. On August 14 the Authority published its report approving the amended application. It found that the project area is a blighted open area; and that the project will be practicable, will not conflict with the master plan for the city, will not in any way be detrimental to the best interests of the public or of the city or to the public safety and convenience, will not be inconsistent with the most suitable development of the city, and will constitute a public use and benefit. The project includes land within a location approved by the department of public works for the extension of the Massachusetts Turnpike. The Massachusetts Turnpike Authority has determined that the project will not unreasonably interfere with the extension. On August 14 the mayor approved the action of the defendant Authority in approving the project, and the Authority issued a certificate of approval. On August 14 a copy of the vote of the Authority approving the application as amended, attested by the secretary of the Authority, and a copy of the mayor's approval of such vote were filed with the city clerk. On August 15 the Commissioner of Insurance gave the approval required by G.L. c. 121A, § 18 (as amended through St.1960, c. 652, §§ 7-11). The amended application provided for the execution and delivery by Prudential and the city, acting through its mayor, of the project contract required by G.L. c. 121A, § 6A (inserted by St.1960, c. 652, § 5).

The deposit agreement in Section III sets forth five conditions to be satisfied before the plaintiffs are to deliver the original leases. Four of these have been met. They are (1) approval by the Authority of the project with such changes in the application as are approved by the bank; (2) the mayor's approval of the action of the Authority; (3) the Authority's issuing of a certificate of approval; and (4) approval of the project by the Commissioner of Insurance.

The fifth condition the bank contends has not been met. The other defendants and the Attorney General argue that it has. This condition poses a number of questions of law affecting the project and the project contract, and is quoted in full in a footnote. ²

Various questions relating to the Prudential center were considered in Opinion of the Justices, etc., 341 Mass. 760, 168 N.E.2d 858, the subject of which was a bill, Senate No. 634 of 1960. That bill contained proposed amendments to G.L. c. 121A and special provisions for projects in Boston, and with amendments, mostly slight, became St.1960, c. 652. Many of the same questions are now raised by the bank, and we shall, as we proceed, consider them anew unaffected by the advisory opinion. Bowe v. Secretary of the Commonwealth, 320 Mass. 230, 245, note, 69 N.E.2d 115, 167 A.L.R. 1447. Lincoln v. Secretary of the Commonwealth, 326 Mass. 313, 314, 93 N.E.2d 744. City of New Bedford v. New Bedford, Woods Hole, Martha's Vineyard & Nantucket S.S. Authority, 336 Mass. 651, 655-656, 148 N.E.2d 637. Opinion of the Justices, etc., 341 Mass. 738, 748, 167 N.E.2d 745.

1. We first consider a contention of the bank that the project 'as acted on by the Authority is not 'a project as defined in G.L. c. 121A, § 1,'' as required by the first clause in Section III(e)(1) of the deposit agreement. In so doing, the bank seeks to attack certain findings of the Authority as not supported by the record. Findings assailed are that the project area is a blighted open area, and that the purpose of the project is predominantly public. ³

The last paragraph of St.1960, c. 652, § 13, ⁴ however, provides an exclusive remedy by petition for a writ of certiorari to be filed within thirty days of the filing of a copy of a final vote of the Authority with the city clerk in order 'to correct errors of law therein.' To make a finding not warranted by the evidence is an error of law. City of Lawrence v. Commissioners of Pub. Works, 319 Mass. 700, 702, 67 N.E.2d 482. A. B. & C. Motor Transp. Co., Inc. v. Department of Pub. Utilities, 329 Mass. 719, 722, 110 N.E.2d 377. The petition may be filed by 'any person, whether previously a party to the proceeding or not, who is aggrieved by such vote.' The bank and Prudential entered into the deposit agreement and entrusted the leases to the plaintiffs on April 7, 1961, more than four months before the filing of the copy of the final vote of the Authority. If the bank was aggrieved, there was ample opportunity to use the exclusive remedy for direct attack.

The bank argues that the action of the Authority, if lawful and constitutional, was acceptable to it, and hence it was not aggrieved. Yet upon the expressed premise of the deposit agreement that extensive expenditures would be required of it after delivery of the lease, the bank has put itself in the position of entering into a contract with Prudential to move its principal office to the center and becoming involved in a controversy from which it seeks to extricate itself by these proceedings. We incline to the opinion that the bank was aggrieved. In a statute of this sort the words 'persons aggrieved' are to be given a comprehensive meaning. Godfrey v. Building Com'r of City of Boston, 263 Mass. 589, 591, 161 N.E. 819. Standard Oil Co. of New York v. Commissioner of Pub. Safety, 274 Mass. 155, 158, 174 N.E. 213. See American Can Co. v. Milk Control Bd., 313 Mass. 156, 160, 46 N.E.2d 542. But if it was not, that circumstance would not open up to it new avenues of review. In particular, there would not be conferred upon the bank another remedy to attack directly at an indefinite future date the validity of the preliminary steps to the final action of the Authority and to challenge the Authority's findings, and so to jeopardize intervening rights.

We must here consider the bank's objections, asserted almost without citation of authority, that the provisions for judicial review in St.1960, c. 652, § 13, are constitutionally inadequate in that (1) the scope of review upon certiorari is too narrow, because only errors of law are included; (2) the definition of person aggrieved omits 'persons whose basis rights could be seriously affected'; and (3) the thirty day period is unreasonably short. The only constitutional citation is to art. 11 of the Declaration of Rights, but we assume that the Fourteenth Amendment to the Constitution of the United States is relevant. The first two grounds of complaint merit little discussion. As to them we adopt what was said in Opinion of the Justices, 341 Mass. 760, 777-778, 168 N.E. 858. Our conclusion is not affected by the fact that there was added to the last paragraph of § 13 of St.1960, c. 652, the concluding sentence, 'The remedy provided by this paragraph shall be exclusive,' which was not in Senate No. 634 of 1960. As to the third objection, we are of opinion that considering the nature of the...