Home JOSEPH MAZZUCHELLI vs. SIDNEY NISSENBAUM.

355 Mass. 788

January 29, 1969

This is an action of tort for personal injuries sustained by the plaintiff when he was struck in the eye by a golf ball as the result of the alleged negligence of the defendant. The judge directed a verdict for the defendant and the plaintiff excepted. There was no error. At the time of his injury the plaintiff was playing golf on the 16th fairway of the Ponkapoag Golf Course with which he was very familiar. He was an experienced golf player who knew that a golf ball when hit by a club constitutes a peril to anyone within its range in any direction and that golf balls do not travel straight from the tee but on occasion will slice in one direction or "cut" in another. He knew that players were active on the 15th fairway which runs roughly parallel to the 16th, although the ball is played in the opposite direction. The plaintiff was standing near his ball which was in the rough between the two fairways and about 225 yards from the 16th tee, and about 150 yards from the 15th tee where the defendant's foursome had teed off. The defendant also was an experienced golfer. His tee shot went forty to fifty yards to his left and into the same rough where the plaintiff was. The defendant approached his ball and hit it with his number 2 wood without first calling "fore". The ball hit the plaintiff who had remained standing near his ball in the rough. On these facts the judge correctly concluded that as matter of law the plaintiff had assumed the risk of his injury. Pouliot v. Black, 341 Mass. 531 . Salamoff v. Godfrey, 344 Mass. 750 . Reardon v. Country Club at Coonamessett, Inc. 353 Mass. 702 , 705. The result is not changed by the failure of the defendant to shout a warning. There was no evidence that the plaintiff was in or near the intended line of the defendant's second shot. See Strand v. Conner, 207 Cal. App. 2d 473, 475, 476.

Exceptions overruled.

Home HERBERT LORD vs. TOWN OF WINCHESTER.

355 Mass. 788

January 29, 1969

This is an action of contract in which the plaintiff seeks to recover for services and expenses he incurred in his efforts to prevent the defendant from selling certain land. The plaintiff appeals from the order of the Appellate Division dismissing a report from the District Court judge who found for the defendant.

Page 789

The Appellate Division was correct in stating that "[f]or a municipality to be bound . . . there must be a contract and not only must there be an underlying authority in the municipality to make the contract, but . . . [it] must be made on its behalf by a duly authorized agent. If any of these elements is missing, there is no liability on the municipality to perform even in quantum meruit." Lowell v. Massachusetts Bonding & Ins. Co. 313 Mass. 257 , 272. The plaintiff admits he was a volunteer. There was no error.

Order dismissing report affirmed.