Rawson v. Massachusetts Operating Co.

• Decision Date: 04 April 1952
• Citation: 29 A.L.R.2d 907,328 Mass. 558,105 N.E.2d 220
• Parties: , 29 A.L.R.2d 907 RAWSON v. MASSACHUSETTS OPERATING CO., Inc.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 220

105 N.E.2d 220

328 Mass. 558, 29 A.L.R.2d 907

RAWSON v. MASSACHUSETTS OPERATING CO., Inc.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 5, 1952.

Decided April 4, 1952.

F. I. Rose, Boston, for plaintiff.

K. C. Parker, Boston, for defendant.

Before QUA, C. J., and RONAN, WILKINS, SPALDING and WILLIAMS, JJ.

WILKINS, Justice.

The plaintiff, a patron in the Capitol Theatre on March 30, 1948, owned and operated by the defendant in Somerville, was assaulted by another patron, the defendant being allegedly negligent in failing to take proper precautions to prevent the occurrence. The jury returned a verdict for the plaintiff, but the judge entered a verdict for the defendant under leave reserved, the plaintiff excepting.

The question is the application of a well settled principle of law. The defendant theatre owner and operator, in common with other possessors of real estate open to the public for business purposes, owed a duty to a paying patron to use reasonable care to prevent injury to him by third persons whether their acts were accidental, negligent, or intentional. Restatement: Torts, § 348.

The jury could have found these facts. The plaintiff, thirty-three years of age, accompanied by his wife, took a seat a little below the center on the right side of the theatre about 7:45 p. m. when the program started. There were first a motion picture, next vaudeville acts, and then another motion picture. During the first picture the plaintiff noticed 'an awful lot of fuss and noise among the patrons' in the section where he was seated, especially in the row in front of him where there was a group of six or seven boys nineteen or twenty years of age, one of whom was DeFino, the assailant. For about forty-five minutes, all through the first picture, they were fooling and laughing, but 'it was not too bad until they put on the acts.' Then they became more boisterous. They were talking loudly enough to be heard 'within a range of some rows.' Four or five times patrons in back of the plaintiff yelled to them to be quiet. The vaudeville acts lasted about half an hour, during which the boys, including DeFino, were talking, laughing, yelling, and throwing popcorn toward the stage. 'It was rowdyism.' When the theatre was darkened for the second picture, the boys other than DeFino arose to leave. DeFino pulled down the nearest boy to make him stay. 'He still wanted to go home and this fellow still hung onto him. They struggled all over the place up and down the seats. It was terrific. This went on for a good two or three minutes.' The plaintiff leaned over, touched DeFino on the shoulder, and said, 'Why don't you go home with the rest of them and let us enjoy the picture?' DeFino answered, 'Who are you calling a kid to?' and struck the plaintiff in the face with his fist, breaking the plaintiff's glasses and causing two facial cuts, one of which required six stitches and the other one. Both the plaintiff and his wife were surprised. Neither had any apprehension before he was struck that he was apt to be in a fight or hit by any one. The first time that there was any show of...