Prudhomme v. Calvine Mills, Inc.

• Decision Date: 31 March 1967
• Citation: 352 Mass. 767,225 N.E.2d 592
• Parties: , 1970 A.M.C. 1442 Bertha Wing PRUDHOMME, Administratrix, v. CALVINE MILLS, INC. (and a companion case 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 592

225 N.E.2d 592

352 Mass. 767, 1970 A.M.C. 1442

Bertha Wing PRUDHOMME, Administratrix, v. CALVINE MILLS, INC. (and a companion case ¹).

Supreme Judicial Court of Massachusetts, Bristol.

Argued Feb. 9, 1967.

Decided March 31, 1967.

Edward J. Harrington, Jr., New Bedford, for plaintiff.

Charles R. Desmarais & William H. Carey, New Bedford, for defendant Calvine Mills, Inc.

Chris Byron, New Bedford, and Leonard Alfonso, Fall River, for defendant Revere Copper & Brass, Inc.

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

RESCRIPT.

The plaintiff, administratrix, sues in tort for the conscious suffering and death of Stephen Prudhomme aged twelve years, who, while using a raft, was drowned in a pond owned by the defendant Calvine Mills, Inc. (Calvine) in which the defendant Revere Copper & Brass, Inc. (Revere) had rights for use in manufacturing. The trial judge, on the plaintiff's opening, directed verdicts for the defendants on eight of ten counts against Calvine and on six of eight counts against Revere. These counts were based upon an invitation, express or implied, or upon the 'attractive nuisance' theory. These rulings were correct. No statement of expected evidence warranted recovery on any counts. Our established law does not allow recovery on the 'attractive nuisance' theory. Daniels v. New York & New England R.R., 154 Mass. 349, 350--356, 28 N.E. 283, 13 L.R.A. 248. Falardeau v. Malden & Melrose Gas Light Co., 275 Mass. 196, 199, 175 N.E. 471. Smith v. Eagle Cornice & Skylight Works, 341 Mass. 139, 143, 167 N.E.2d 637. On the remaining counts, which were based upon wilful, wanton, or reckless conduct, the jury returned verdicts for the plaintiff against Calvine and verdicts for the defendant in the action against Revere. The judge under leave reserved entered verdicts for Calvine. These rulings also were correct. Trott v. Yankee Network, Inc., 335 Mass. 9, 13--15, 138 N.E.2d 280. Siver v. Atlantic Union College, 338 Mass. 212, 216, 154 N.E.2d 360.

Exceptions overruled.

1 The companion case is by the plaintiff in the first case against Revere Copper & Brass, Inc.