Abraham v. City of Woburn

• Decision Date: 20 August 1980
• Citation: 408 N.E.2d 664,10 Mass.App.Ct. 416
• Parties: Nicholas ABRAHAM v. CITY OF WOBURN.
• Court: Appeals Court of Massachusetts

Page 664

408 N.E.2d 664

10 Mass.App.Ct. 416

Nicholas ABRAHAM v. CITY OF WOBURN.

Appeals Court of Massachusetts, Middlesex.

Argued April 22, 1980.

Decided Aug. 20, 1980.

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

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

Before GREANEY, PERRETTA and KASS, JJ.

KASS, Justice.

Some time late September 3, 1970, or early the next morning, the plaintiff Abraham's bowling alley in Woburn was atrociously vandalized. Acting under G.L. c. 269, § 8, as amended by St. 1965, c. 647, § 3, which imposes tort liability upon municipalities for damage to property by persons "who are riotously or tumultuously assembled," Abraham brought an action against Woburn, upon which a jury returned a verdict of $147,750. ¹

At the close of the plaintiff's evidence, and again after all the evidence was received, Woburn moved unsuccessfully for a directed verdict. See Mass.R.Civ.P. 50(a), 365 Mass. 814 (1974). ² After the jury returned its verdict, the city moved for judgment notwithstanding the verdict, Mass.R.Civ.P. 50(b), 365 Mass. 814 (1974); that motion was also denied. Whether the case should have gone to the jury is the principal question on appeal. In formulating our answer we consider whether the evidence, taken in the light most favorable to the plaintiff, if believed, would warrant a finding for the plaintiff on each essential element required by the statute under which liability is sought to be imposed. See, e. g., Alholm v. Wareham, 371 Mass. 621, 623-625, 358 N.E.2d 788 (1976); Smith & Zobel, Rules Practice § 50.6 at 202 (1977). See by analogy the standards for a directed verdict in a criminal case. Commonwealth v. Campbell, --- Mass. ---, --- ^a, 393 N.E.2d 820 (1979). This we do without weighing the credibility of witnesses or substituting our judgment of facts for that of the jury. O'Shaughnessy v. Besse, 7 Mass.App. ---, --- ^b, 389 N.E.2d 1049 (1979). Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir. 1970).

On the plaintiff's evidence, the jury might have found that when the damage occurred the bowling alley, which was located in the Four Corners area of Woburn, was closed for the summer. The building was secured, the bowling alley's manager, who lived nearby, checked the building regularly, and the plaintiff Abraham inspected it inside and out every Saturday.

During the summer of 1970 there was much unrest among the young people of the city, which manifested itself in acts of vandalism. Gangs of teenagers congregated regularly at the Four Corners, approximately 100 to 300 yards from the alley. On six to eight occasions during June, July and August, the bowling alley sustained minor damage from vandalism, and in each instance Abraham received notice from his manager or the Woburn police, who regularly patrolled the area.

Abraham inspected the property on August 29, 1970, the Saturday preceding the weekend on which the damage occurred, and found nothing untoward at the bowling alley, except for some broken windows. When he was summoned to his property by telephone on Saturday morning of the next week, what Abraham saw looked to him as if "a bomb hit the place." All of the exterior glass was broken; the front door was smashed; two large roof signs were destroyed; ceiling tiles were torn down; interior glass was almost entirely broken; the rugs in the lobby and pool room were soaked with water, paint and syrup; 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; bowling equipment and the electric control equipment for keeping score were heavily damaged; bowling shoes and other items of equipment were strewn about. This list does not exhaust the catalog of destruction.

How and when the devastation occurred went unobserved. Who the perpetrators of the outrages were is unknown. No contention is raised by the city that the plaintiff failed in his statutory obligation to use "all reasonable diligence to prevent" the destruction of his property and to procure the conviction of the offenders.

A newspaper report of the incident, received in evidence without objection, quoted Abraham as saying, "A total riot occurred inside the building." At trial, Abraham was permitted to testify, without objection, that the damage had been caused by a riot. The city editor of the Woburn Daily Times, a newspaper, was permitted to testify, without objection, on the basis of observing the damage at the bowling alley, that the destruction was the work of "riotous gangs that hang around and hung around that section and other sections of the City." Edward Gill, who had been mayor of Woburn at the time the damage in the bowling alley was discovered, testified, without objection, that the damage was attributable to "a riotous act or a cyclone."

We agree with the plaintiff that although the text of the newspaper article and the quoted testimony of the city editor and the mayor were excludable upon objection, in the absence of objection this otherwise incompetent evidence took on probative force. Eastern Paper & Box Co. v. Herz Mfg. Corp., 323 Mass. 138, 143, 80 N.E.2d 484 (1948). Freyermuth v. Lutfy, 376 Mass. ---, --- ^c, 382 N.E.2d 1059 (1978). Leach and Liacos, Handbook of Massachusetts Evidence 72 (4th ed. 1967). Testimony labelling the event a "riot" does not, however, relieve the judge of his obligation to ascertain whether the evidence is sufficient in law to support a verdict in the plaintiff's favor.

All who gave testimony conceded they saw no rioters, witnessed no assembly and heard no activity at the bowling alley. Their characterization of the damage to the bowling alley as the consequence of riotous conduct was, therefore, based entirely on inferences they drew from the nature of the destruction and their general awareness of gangs hanging around in the area. The question on which we must focus is whether, for purposes of G.L. c. 269, § 8, there can be a riotous or tumultuous assembly that is neither seen nor heard; i. e., can there be a quiet riot?

Only one decision, Yalenezian v. Boston, 238 Mass. 538, 131 N.E. 220 (1921), has construed the applicable riot statute. ³ That opinion defines the statutory phrase "riotously or tumultuously assembled" as 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 the peace in consequence of it." 238 Mass. at 542-543, 131 N.E.2d at 222. If firm and courageous persons are to be in the neighborhood of an assembly about which they develop apprehensions, it is a fair inference that they must see or hear the disturbance. That element was present in Yalenezian : witnesses testified that there was a large crowd of people in the street "shouting, shooting dice for money, singing, dancing and fighting" and that windows of a store "were crashed and broken, and fifteen or twenty men entered the store and came out with clothing on their arms." Id. at 542, 131 N.E.2d at 222. The Yalenezian case also decided that a claimant under the statute did not have to establish that the violence was such as to alarm at least one person of reasonable firmness and courage. Id. at 540-541, 543, 131 N.E.2d 220. In this the decision was faithful to Commonwealth v. Runnels, 10 Mass. 518, 519 (1813), which, dealing with the criminal riot statute (now found in G.L. c. 269, § 1), said "that there may be a riot without terrifying anyone." See also Legislation, 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"). It is, thus, sufficient if our hypothetical stouthearted person apprehends a breach of the peace; he need not sense personal danger.

We are of the opinion that the history of G.L. c. 269, § 8, and similar statutes reinforces the view that its target is damage resulting from open and observed conduct, and not unexplained malicious mischief or breaking and entering. See e. g., Duryea v. New York, 10 Daly 300, 305 (N.Y.C.P. 1882), aff'd, 100 N.Y. 625 (1885), in which the wrecking of a building by a group of boys was held not to be the consequence of riotous conduct, but rather malicious mischief, because they ran away at the approach of a single policeman. Statutes imposing civil liability on municipalities for damage due to riots have descended from the Statute of Winchester of 1285, 13 Edw. 1, st. 2, c. 2, 3 re-enacted 28 Edw. 3, c. 11 (1354) and 27 Eliz. 1, c. 13, § 2 (1585); and from the Riot Act of 1714, 1 Geo. 1, st. 2, c. 5, §§ 1-7. See Note, Riot Insurance, 77 Yale L.J. 541, 552-553 (1968). Anciently, these statutes imposed liability on local citizens for crimes (one imagines particularly against royal authority) committed in their neighborhoods. ⁴ These acts were repealed in 1827, and there occurred an immediate re-enactment providing remedies for riot damage only. 7 & 8 Geo. 4, c. 31 (1827) and 2 & 3 Will. 4, c. 72 (1832). The present English statute is the Riot (Damages) Act of 1886, 49 & 50 Vict., c. 38. See also 3 Blackstone, Commentaries 160-161 (Wendell ed. 1850); Darlington v. Mayor of New York, 31 N.Y. 164, 187-188 (1865); Legislation, Liability of the Municipality for Mob Violence, 6 Fordham L.Rev. 270, 272 n.15 (1937). What is now c. 269, § 8, was introduced into the Massachusetts statutory scheme in 1839, "partly, no doubt, . . . 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. 205, 211 (1921). Taken as a...