1 Mass. App. Ct. 813

March 27, 1973

This is an action of tort brought by Bruce R. Desmarais, a minor, for personal injuries, and by his father, Robert R. Desmarais, for consequential damages against the defendants. David H. Byron, a teacher in the classroom where the minor Desmarais sustained his injuries, and the Wachusett Regional School District. Both defendants' demurrers were sustained and the plaintiffs' appeals from the orders bring this case before us. This is the second action by the plaintiffs against these defendants for the same injury arising out of the same accident. In the earlier action, an order sustaining the defendants' demurrers was affirmed by the Supreme Judicial Court. Desmarais v. Wachusett Regional School District, 360 Mass. 591 . Following that rescript, the plaintiffs commenced the instant action. A careful examination of the present counts of the declaration discloses no significant difference from those filed in the previous case. Therefore we hold that the court below was correct in sustaining the demurrers.

Orders sustaining demurrers affirmed.

Judgment for defendants.


1 Mass. App. Ct. 813

March 27, 1973

The defendant was convicted, after a trial by a jury of six in the District Court of Lowell on a complaint charging that the defendant ". . . did operate an automobile on a way (in a place) to which the public has a right of access . . . while under the influence of intoxicating liquor . . .." The defendant's bill of exceptions to the Supreme Judicial Court (see St. 1971, c. 659, and G. L. c. 218, Section 27A) was transferred to this court pursuant to the provisions of G. L. c. 211A, Sections 10 and 12. The defendant was arrested while operating his automobile in the parking lot of a shopping center. The defendant duly excepted to the denial of his motion for a directed verdict. It was not shown that the defendant operated upon any way or in any place to which the public has a right of access within the meaning of G. L. c. 90, Section 24 (1)(a). Private property to which the public has access only by virtue of being invitees is not a place to which the public has a right of access within the meaning of that section. Commonwealth v. Paccia, 338 Mass. 4 , 6. We are not called upon to decide the effect of the amendment to G. L. c. 90, Section 24, which was

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effected by St. 1961, c. 347, as the defendant was not charged under that amendment. A criminal offence must be proved as charged. Commonwealth v. Ancillo, 350 Mass. 427 , 430. The defendant's motion for a directed verdict should have been allowed.

Exceptions sustained.

Judgment for the defendant.