Healey v. Lathrop

• Decision Date: 20 May 1898
• Citation: 50 N.E. 540,171 Mass. 263
• Parties: HEALEY v. LATHROP.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

171 Mass. 263

50 N.E. 540

HEALEY v. LATHROP.

Supreme Judicial Court of Massachusetts, Suffolk.

May 20, 1898

COUNSEL

W.H. Baker, for plaintiff.

C.F Eldredge, for defendant.

OPINION

HOLMES J.

This is an action of tort against the keeper of a place of amusement in Boston, seeking to make him liable for an assault and battery alleged to have been committed by one Mead, a special police officer, while on his premises. Whatever the officer did, he did as such police officer, and without direction or knowledge on the part of the defendant. The officer was appointed, in pursuance of St.1878, c. 244, § 6, upon the application of the defendant, to serve without pay from the city, under such rules and regulations as the police commissioners deemed expedient. He was paid by the defendant and the defendant gave the bond required by statute. At the trial the defendant asked the judge to direct a verdict for him; but the judge refused, and instructed the jury that the defendant, under the statute, and the arrangement which he had made, became liable for the official misconduct of Mead in his employment, just as for the torts of any servant. The case is here on exceptions. The only question is whether Mead was the defendant's servant. That was the ground of liability alleged in the declaration, and laid down in the charge. So much of the argument for the plaintiff as turns on the supposed duty of the defendant to take reasonable care to protect the plaintiff from abuse by strangers has no bearing upon the case.

The case depends upon the construction of St.1878, c. 244, § 6. That section required the defendant to give bond to the city treasurer "to be liable to parties aggrieved by any official misconduct of such police officer to the same extent as for the torts of agents and servants in their employment." It continues, "And proceedings may be had upon said bonds in the same manner as upon the bonds of constables." If the statute had meant to make the officer the servant of the person who applies for his appointment and gives bond for his conduct, presumably it would have said so. But, if it had said so, it would have insisted upon a fiction being treated as a fact. It is true that the defendant asked to have an officer appointed,--perhaps, asked to have Mead appointed,--and that he paid him. But he did not appoint him, could not remove him, and could not control his official conduct, which was governed by...