Abraham v. City of Woburn

• Decision Date: 05 June 1981
• Citation: 421 N.E.2d 1206,383 Mass. 724
• Parties: Nicholas ABRAHAM v. CITY OF WOBURN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1206

421 N.E.2d 1206

383 Mass. 724

Nicholas ABRAHAM v. CITY OF WOBURN.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Feb. 5, 1981.

Decided June 5, 1981.

Neal C. Tully, Boston (Edward I. Masterman, Boston, with him), for plaintiff.

Carol J. Muller, City Sol., for defendant.

Before HENNESSEY, C. J., and BRAUCHER, WILKINS, LIACOS and ABRAMS, JJ.

ABRAMS, Justice.

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, --- MASS.APP. ---, 408 N.E.2D 664 (1980)^A, 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, --- Mass. ---, ---, ^b 392 N.E.2d 1053 (1979), Uloth v. City Tank Corp., 378 Mass. 874, ---, ^c 384 N.E.2d 1188 (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. The property was last inspected in the late afternoon or early evening of September 4 by the manager, and Abraham was not notified of any problem. However, a gang was seen near there one and one-half days prior to the destruction of the property.

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 exception 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 exception, that the damage was caused by "the riotous gangs that hang around and hung around that section and other sections of the City." ¹

The motions for directed verdict or judgment notwithstanding the verdict. At the close of the plaintiff's evidence and again after all the evidence, the city moved unsuccessfully for a directed verdict. Mass.R.Civ.P. 50(a), 365 Mass. 814 (1974). Cf. Martin v. Hall, 369 Mass. 882, 343 N.E.2d 841 (1976). After the jury returned a verdict of $147,750 for Abraham, ² the city moved for judgment notwithstanding the verdict, or for a new trial. Mass.R.Civ.P. 50(b), 365 Mass. 814 (1974). That motion was likewise denied. In reviewing the denial of the city's motion for judgment notwithstanding the verdict, the same standard applies as would apply to a review of a motion for a directed verdict, ³ D'Annolfo v. Stoneham Hous. Auth., 375 Mass. 650, 657, 378 N.E.2d 971 (1978), J.W. Smith & H.B. Zobel, Rules Practice § 50.13, at 209 (1977), namely, whether "anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff." Poirier v. Plymouth, 374 Mass. 206, 212, 372 N.E.2d 212 (1978), quoting from Raunela v. Hertz Corp., 361 Mass. 341, 343, 280 N.E.2d 179 (1972).

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; ⁴ however, we have said that the phrase "riotously or tumultuously assembled" should be read "conjunctively to describe the offence of an unlawful assembly which has proceeded to execute an unlawful purpose in a way that has resulted in the destruction of property or of injury thereto, and in a manner to give firm and courageous persons in the neighborhood of such assembly reasonable grounds to apprehend a breach of peace in consequence of it." Yalenezian v. Boston, 238 Mass. 538, 542-543, 131 N.E. 220 (1921). ⁵ We have also stated that "(p)ersons having lawfully come together and being lawfully together, may, thereupon, become an unlawful assembly and commit a riot, although they had not that purpose when they assembled." Yalenezian, supra at 543, 131 N.E. 220.

Further, the statute does not require the plaintiff to prove that the public was put in fear by the rioters: "(T)here may be a riot without terrifying any one." Commonwealth v. Runnels, 10 Mass. 518, 519 (1813). See Yalenezian, supra at 542-543, 131 N.E. 220; Note, Communal Liability for Mob Violence, 49 Harv.L.Rev. 1362, 1364 (1936) (suggesting it is "doubtful whether the activities and character of the mob must be such as would put in fear a man of reasonable courage"). The issue is whether the evidence presented permitted the jury reasonably to infer that Abraham's property was destroyed "by five or more persons who (were) riotously or tumultuously assembled," as those words appear in G.L. c. 269, § 8.

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. ⁶ See, e. g., Commonwealth v. Montecalvo, 367 Mass. 46, 54, 323 N.E.2d 888 (1975); Sarkesian v. Cedric Chase Photographic Laboratories, Inc., 324 Mass. 620, 87 N.E.2d 745 (1949); Sargent v. Massachusetts Accident Co., 307 Mass. 246, 250-251, 29 N.E.2d 825 (1940); Murphy v. Bay State Wine & Spirit Co., 212 Mass. 285, 98 N.E. 1042 (1912); Commonwealth v. Kennedy, 170 Mass. 18, 25, 48 N.E. 770 (1897); Commonwealth v. Webster, 5 Cush. 295, 310-320 (1850). See generally 1 J. Wigmore, Evidence § 26 (3d ed. 1940). The probative value of circumstantial evidence "has never been seriously questioned," Commonwealth v. Montecalvo, supra, Commonwealth v. Medeiros, 354 Mass. 193, 197, 236 N.E.2d 642 (1968), cert. denied sub nom. Bernier v. Massachusetts, 393 U.S. 1058, 89 S.Ct. 699, 21 L.Ed.2d 699 (1969); Commonwealth v. Swartz, 343 Mass. 709, 711, 180 N.E.2d 685 (1962), and the persuasive value of circumstantial evidence may exceed that of direct evidence, W.B. Leach & P.J. Liacos, Massachusetts Evidence 293-294 (4th ed. 1967).

In this case, "(p)roof of the crucial facts depended on the inferences which could reasonably be drawn from the circumstances. 'When a material fact is not proved by direct testimony, but is left to be inferred from the facts directly sworn to, the inference need not be a necessary one. There is a case for the jury, unless the inference either is forbidden by some special rule of law, or is declared unwarranted because too remote, according to the ordinary course of events. If there is a case for the jury, they are at liberty to use their general knowledge in determining what inferences are established ... and the facts inferred by them are as properly proved as if directly testified to.' " Commonwealth v. Bonomi, 335 Mass. 327, 355-356, 140 N.E.2d 140 (1957), quoting from Commonwealth v. Doherty, 137 Mass. 245, 247 (1884). See Commonwealth v. Beckett, 373 Mass. 329, 341, 366 N.E.2d 1252 (1977); Commonwealth v. Medeiros, 354 Mass. 193, 197, 236 N.E.2d 642 (1968). A construction of G.L. c. 269, § 8, which limits the plaintiff's proof to direct evidence, would be a major departure from precedent, a departure which we decline to make.

As we read the record, the facts and circumstances presented by the plaintiff, supra --- Mass. at --- - ---, ^d 421 N.E.2d at 1208-1209, 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...