Abraham v. City of Woburn
Abraham v. City of Woburn
Opinion of the Court
We granted the plaintiff s application for further appellate review to determine whether a verdict for the plaintiff was warranted and should be allowed to stand. The Appeals Court concluded that the evidence was insufficient, see Abraham v. Woburn, 10 Mass. App. Ct. 416 (1980), and ordered judgment for the defendant. We conclude that the evidence was sufficient to submit the case to the jury, that there was no reversible error in the admission of evidence, and that the instructions to the jury were correct. Therefore, we affirm the judgment of the Superior Court.
The complaint was brought under G. L. c. 269, § 8, as amended by St. 1965, c. 647, § 3, which imposes liability on a municipality for damage caused by five or more persons “riotously or tumultuously assembled.” The evidence, viewed in the light most favorable to the plaintiff, see Boyle v. Wenk, 378 Mass. 592, 593 (1979); Uloth v. City Tank Corp., 376 Mass. 874, 876 (1978), reveals that during the summer of 1970, youth gangs roamed throughout the city of Woburn vandalizing both public and private property, setting fires, and exploding firebombs. The “rebellious spirit” of the youths was well-known to public officials and had received considerable publicity in the local newspaper.
Abraham owned a bowling alley located 100 to 300 yards from a spot where youths regularly congregated. After the bowling leagues ended their season, the bowling alley closed for the summer. At that time Abraham chained and locked doors, and placed plywood over windows. He arranged to have the manager of the bowling alley inspect the building twice a day, and Abraham himself inspected it weekly. Even with these precautions, the bowling alley was the target of minor acts of vandalism on six to eight occasions that summer. The police, who regularly patrolled the area, notified Abraham whenever a problem was discovered.
On August 29, 1970, the Saturday prior to the incident, Abraham inspected the property, and found it in order.
On the morning of September 5, Abraham received a telephone call from local officials summoning him to the bowling alley. He arrived and found that the exterior glass was broken; the front door was smashed; two large roof signs were destroyed; ceiling tiles were torn down; the interior glass was almost entirely broken; the rugs in the lobby were soaked with water, paint, and syrup; heavy vending machines were tipped over; metal T-bars and grid work which supported the ceiling were torn down and twisted; wires and metal ducts were hanging loose from the ceiling; sinks, toilets, and other fixtures were twisted and cracked; all twenty-six bowling lanes were damaged, bowling equipment and electric control equipment for keeping score were heavily damaged; bowling shoes and other items of equipment were strewn about. In short, the bowling alley looked as if “a bomb [had] hit the place.” The evidence favorable to the plaintiff permitted the inference that the damage took place over a short period of time.
The mayor of the city in 1970, who as such was also the executive head of the police department, testified without objection that the damage had been caused by a “riotous act or a cyclone.” He defined “riotous act” in part as damage to property by a large group of people. The city editor of the Woburn Daily Times testified, again without objection, that the damage was caused by “the riotous gangs that hang around and hung around that section and other sections of the City.”
The city argues that the plaintiff failed to prove that the loss sustained was the result of a riotous or tumultuous assembly, as required by G. L. c. 269, § 8, and not the result of vandalism or malicious mischief. The statute does not define a riotous or tumultuous assembly;
Further, the statute does not require the plaintiff to prove that the public was put in fear by the rioters: “[Tjhere may be a riot without terrifying any one.” Commonwealth v. Runnels, 10 Mass. 518, 519 (1813). See Yalenezian, supra at 542-543; Note, Communal Liability for Mob Violence,
The city claims that the jury could not have found that Abraham’s property was damaged by a riotous or tumultuous assembly of five or more persons, since there was no direct testimony of such a gathering. However, we have long adhered to the rule that adequate proof in civil and criminal cases may come from either direct or circumstantial evidence, or both.
As we read the record, the facts and circumstances presented by the plaintiff, supra at 725-726, permitted the judge to submit the case to the jury, and permitted the jury reasonably to infer that the bowling alley had been damaged by five or more persons riotously or tumultuously assembled. A witness testified that the damage was caused by a riotous act which he defined as damage to property caused by “a large group of people.” Given this evidence, the evidence of the history of roving gangs in Woburn, and the near-total destruction of the bowling alley, the jury reasonably could have found that only a group of five or more could have inflicted the damage in the time available from the last inspection on Friday night to the discovery of the damage early Saturday morning. As long as the jury’s verdict is supported by reasonable inferences, we will not substitute our interpretation of the facts for theirs. “[W]e have no authority to take upon ourselves the duties of a tribunal of fact, and to determine what verdicts should have been rendered by the jury.” Electric Welding Co. v. Prince, 200 Mass. 386, 392 (1909).
Charge to the jury. There is no merit in the city’s arguments with respect to the charge to the jury. We need not decide challenges to jury instructions in the absence of a specific request or objection properly presented to the judge. Mass. R. Civ. P. 51 (b), 365 Mass. 816 (1974). See Ezekiel v. Jones Motor Co., 374 Mass. 382, 392-393 (1978); Kane v. Fields Corner Grille, Inc., 341 Mass. 640, 646 (1961). The only objection presented at trial was to the judge’s failure to instruct the jury that “those assembled must have intended to help one another by force if necessary against any person who should oppose them in the execution of their common purpose,” and “[tjhose assembled must have not only used force or violence in demolishing and destroying the plaintiffs property but must have displayed such force or violence in such a manner as to have alarmed at least one person of reasonable firmness and courage.” The propriety of identical requests was before the court in Yalenezian, 238 Mass, at 543, and those requests were held to be rightfully refused. On the authority of Yalenezian, supra, the judge below correctly denied the city’s request. The judgment of the Superior Court is affirmed.
So ordered.
The city argues that these statements are hearsay, and that without them the remaining evidence is insufficient to support the jury’s verdict. However, the city did not register an objection to the testimony at trial, and if no timely objection is lodged, any challenge to the admission of the testimony is not properly before us. See Mass. R. Civ. P. 46, 365 Mass. 811 (1974). See also Proposed Massachusetts Rules of Evidence 103 (a)
General Laws c. 269, § 8, limits the liability of a municipality to “the amount of three fourths of the value of the property destroyed or of the amount of such injury thereto.” Accordingly, the judge reduced the damage award to $110,802.50. There was apparently a clerical mistake, for the correct figure appears to be $110,812.50. See Mass. R. Civ. P. 60 (a), 365 Mass. 828 (1974).
The judge properly denied the motions for a directed verdict. “The better procedure ‘in a case in which it is a close question whether the standard for granting a directed verdict is met is to allow the matter to go to the jury. If the judge then decides that the jury’s verdict cannot stand, a motion for judgment notwithstanding the verdict may be allowed.’” Feltch v. General Rental Co., ante 603, 611-612 (1981), quoting from Smith v. Ariens Co., 375 Mass. 620, 627 (1978).
General Laws c. 269, § 8, as amended by St. 1965, c. 647, § 3, provides: “If property of the value of fifty dollars or more is destroyed or if property is injured to that amount by five or more persons who are riotously or tumultuously assembled, the town within which the property was situated shall, if the owner of such property uses all reasonable diligence to prevent its destruction or injury, and to procure the conviction of the offenders, be liable to indemnify the owner thereof in tort to the amount of three fourths of the value of the property destroyed or of the amount of such injury thereto, and may recover the same against any or all of the persons who destroyed or injured said property.”
Yalenezian v. Boston, 238 Mass. 538 (1921), was decided under R. L. c. 211, § 8 (1902), which is identical in substance to G. L. c. 269, § 8, with only one significant difference. Under the previous version, the riotous or tumultuous assembly had to include twelve or more persons; the number was reduced to five or more by St. 1965, c. 647, § 3.
We have affirmed convictions of murder in the first degree based solely on circumstantial evidence, see, e.g., Commonwealth v. Smith, 350 Mass. 600 (1966); Commonwealth v. Tucker, 189 Mass. 457 (1905); Commonwealth v. Webster, 5 Cush. 295, 310-320 (1850), and have similarly upheld convictions of other lesser offenses, see, e.g., Commonwealth v. Monahan, 349 Mass. 139 (1965) (larceny and conspiracy); Commonwealth v. Jeffries, 7 Allen 548 (1863) (fraud and false pretenses).
Statutes imposing liability for damage to property by riot first appeared in England in 1714, see 1 Geo. 1, st. 2, c. 5, and continue to the present time, although they have been modified by Parliament on several occasions, see 7 & 8 Geo. 4, c. 31 (1827); 2 & 3 Will. 4, c. 72 (1832); Riot (Damages) Act of 1886, 49 & 50 Viet. c. 38. See generally Note, Municipal Liability for Riot Damage, 16 Hastings L.J. 459, 460 (1965).
The Massachusetts statute was enacted in 1839 “partly . . . as a result of the anti-Catholic riots in Charlestown in 1834, when the Ursuline Convent was burned, and the Broad Street riot of 1837, when several buildings were burned.” Discussion of the Recent Opinion as to Municipal Liability for Looting by Rioters, 6 Mass. L.Q. (No. 5) 205, 211 (1921). See Abraham v. Woburn, 10 Mass. App. Ct. 416, 421-423 (1980).
Several States, including California, Illinois, and Louisiana, have repealed statutes imposing liability on municipalities for riot damage. See Cal. Gov’t Code §§ 50140-50145 (Deering 1949), repealed by Cal. Stats. 1963, c. 1681, § 17; 111. Rev. Stat. ch. 38, § 25-3 (1963), repealed by Laws 1967, at 2365, effective July 31, 1967; La. Rev. Stat. § 33:5065 (1950), repealed by Acts 1966, No. 458, § 1. It is not clear whether the repeal was predicated on the availability of insurance for this type of property damage. See generally Note, Riot Insurance, 77 Yale L.J. 541 (1968).
Dissenting Opinion
I dissent. The direct evidence here, considered with all inferences that could fairly be drawn, is not sufficient to warrant a verdict for the plaintiff under G. L. c. 269, § 8.
The evidence and the permissible inferences here establish no more than extensive vandalism performed in the interior of a building, and neither seen nor heard by any “persons in the neighborhood.” This is a far cry from a showing that the authorities knew or should have known of the occurrence. The legislative purpose of such a statute is obvious: the municipality, on notice of the danger, fails to protect the citizen’s property at the risk of civil liability. The construction which the majority reach here comes close to imposing an insurer’s obligation upon the municipality. I have in mind the frequent and clandestine acts of vandalism today in homes and buildings.
I emphasize that, perhaps contrary to the reasoning of the Appeals Court, I (like the majority of this court) would of course allow the plaintiff to prove his case by fair inferences as well as direct evidence. Even under that approach, the plaintiff fails, in my opinion; a verdict for the municipality should have been directed.
Reference
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- Nicholas Abraham vs. City of Woburn
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