352 Mass. 767

March 30, 1967

This petition in the county court seeks "to have . . . corrected" the rescript in a libel action by the petitioner against the respondent which was decided by the full court on February 25, 1965, and judgment for the defendant ordered. 348 Mass. 790. The single justice dismissed the petition for want of jurisdiction. The petitioner appealed. There was no error. After the case went to judgment in the Superior Court, the case is no longer subject to the jurisdiction of this court. See Crocker v. Crocker, 198 Mass. 401, 408-409; Boston v. Santosuosso, 308 Mass. 189, 194.

Order dismissing petition affirmed.


352 Mass. 767

March 30, 1967

This petition by a husband to revoke a decree for separate support was previously here on his appeal from a decree dismissing the petition, and that decree was reversed. 349 Mass. 29. The petition has now been heard anew and granted by another judge, and the wife has appealed. The evidence is not reported. There is a report of material facts. G. L. c. 215, Section 11 (as amended through St. 1947, c. 365, Section 3). The report contains much unnecessary verbiage and is not in a form suitable for consideration on appeal. We have discarded the useless rhetoric, and are able "properly to adjudicate the subject matter" on the balance of the report. Accordingly, we do not order a further report under G. L. c. 231, Section 125A, inserted by St. 1949, c. 171, Section 1, as amended by St. 1963, c. 74, Section 2. See Moutinho v. Moutinho, 342 Mass. 171, 173. No error of substance appears.

Decree affirmed.

Home BERTHA WING PRUDHOMME, administratrix, vs. CALVINE MILLS, INC. (and a companion case [Note 1]).

352 Mass. 767

March 31, 1967

The plaintiff, administratrix, sues in tort for the conscious suffering and death of Stephen Prudhomme

Page 768

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. Falardeau v. Malden & Melrose Gas Light Co. 275 Mass. 196, 199. Smith v. Eagle Cornice & Skylight Works, 341 Mass. 139, 143. 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. Siver v. Atlantic Union College, 338 Mass. 212, 216.

Exceptions overruled.


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