Orasz v. Colonial Tavern, Inc.

• Citation: 365 Mass. 131,310 N.E.2d 311
• Parties: Michael ORASZ v. COLONIAL TAVERN, INC. (and two companion cases 1 ).
• Decision Date: 19 April 1974
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 311

310 N.E.2d 311

365 Mass. 131

Michael ORASZ v. COLONIAL TAVERN, INC. (and two companion cases ¹).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Sept. 21, 1973.

Decided April 19, 1974.

John M. Mullen, Boston, for Michael Orasz.

Thomas C. Cameron, Boston, for Colonial Tavern, Inc.

Robert H. Quinn, Atty. Gen., Lawrence T. Bench, Asst. Atty. Gen., for The Justices of the Municipal Court of the City of Boston and another.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER, and HENNESSEY, JJ.

QUIRICO, Justice.

The first of these three cases is an action of tort for assault and battery in which Michael Orasz (plaintiff) alleges that while he was a patron in the tavern owned by Colonial Tavern, Inc. (defendant), he was beaten with a blackjack and kicked by a bartender employed by the defendant to maintain order and decorum. The question presented for our decision by all three cases now before us is whether the defendant is entitled to remove the tort action to the Superior Court for trial de novo under G.L. c. 231, § 104, as amended by St.1965, c. 377. ² The proper consideration of this question requires a review of the now prolonged and somewhat complicated procedural developments in the tort action.

The tort action was started by a writ returnable to the Municipal Court of the City of Boston on April 6, 1970, and bearing an ad damnum of $2,000. Since the ad damnum did not exceed $2,000, the third paragraph of G.L. c. 231, § 104, required that 'the case shall be tried in the district court and (that) the defendant shall, if . . . (it) desires trial by the superior court . . . (take the required action to remove it thereto) within ten days after notice of the decision or finding.' ³

The case was tried before a judge of the Municipal Court on October 19, 1971, and he reserved decision thereon. On October 20, 1971, the plaintiff filed and the court allowed a motion to increase the ad damnum to $10,000. On October 26, 1971, the judge found for the plaintiff in the sum of $3,660. The defendant did not then take action to remove the case to the Superior Court as permitted by G.L. c. 231, § 104, but instead perfected a report to the Appellate Division, pursuant to G.L. c. 231, § 108 (as amended through St.1967, c. 852, § 2), contending that as a matter of law its bartender was not acting within the scope of his employment when he assaulted and beat the plaintiff. The case was heard by the Appellate Division which, on December 9, 1971, ordered that the report be dismissed. The defendant did not then take action to remove the case to the Superior Court, but instead filed a claim of appeal to this court pursuant to G.L. c. 231, § 109, as amended. On November 6, 1972, we affirmed the order of the Appellate Division dismissing the report. ORASZ V. COLONIAL TAVERN, INC., --- MASS. ---, 289 N.E.2D 841 (1972)^A. The rescript from this court on that decision was filed in the Municipal Court on November 8, 1972. The question whether the appeal was premature was neither raised by the parties nor considered or discussed by this court in its rescript opinion.

On November 13, 1972, the defendant for the first time filed in the Municipal Court the documents required for the removal of the case to the Superior Court under G.L. c. 231, § 104, as amended, and when the clerk refused to act thereon the defendant filed a motion to compel the clerk to do so. The motion was heard and denied by a judge of that court on the same date. The defendant perfected a report to the Appellate Division, contending that the denial of the motion was error. The case was heard by the Appellate Division which, on April 24, 1973, directed the clerk of the Municipal Court to remove the case to the Superior Court. On April 25, 1973, the defendant again filed in the Municipal Court the documents required for the removal of the case. On the same date the plaintiff appealed to this court from the order of the Appellate Division. ⁴ This is the appeal now before us.

The sole issue presented by the appeal is whether, in a case entered in the District Court with an ad damnum not exceeding $2,000 which is tried in the District Court and then reported to the Appellate Division, a party loses his right to transfer the case thereafter to the Superior Court by appealing to the Supreme Judicial Court from an adverse decision of the Appellate Division without filing a request for such transfer within the statutory time limit. We hold that a party does lose his right of transfer in these circumstances.

It is clear that at the outset the defendant was entitled to a trial by jury in the tort action brought against it by the plaintiff, and that such a trial was available only in the Superior Court. However, while '(i)t familiar law that the right of trial by jury secured by article 15 of the Declaration of Rights is sacred and must be sedulously guarded against every encroachment, yet it may be regulated as to the mode in which the right shall be exercised so long as such regulation does not impair the substance of the right.' H. K. Webster Co. v. Mann, 269 Mass. 381, 385, 169 N.E. 151, 153 (1929). General Laws c. 231, § 104, as an example of such regulation. Under it sprovisions the defendant was not permitted to remove the case to the Superior Court until after it was first tried in the Municipal Court, and it was thereafter required to exercise the right of removal 'within ten days after notice of the decision or finding' in the Municipal Court. The defendant did not comply with the ten day filing requirement; it elected instead to carry questions of law to the Appellate Division of the District Court, thus claiming a right recognized with respect to a statute similar to § 104 by our decision in Lubell v. First Natl. Stores, Inc., 342 Mass. 161, 172 N.E.2d 689 (1961).

In the Lubell case, supra, the court was concerned with the construction of G.L. c. 231, § 102C, inserted by St.1958, c. 369, § 3, and amended thereafter. This statute permits the Superior Court to transfer for trial in a District Court any action of tort or contract in which it determines that there is no 'reasonable likelihood' that, if the plaintiff were to prevail, recovery would exceed $2,000; ⁵ and it further provides that a party aggrieved by the finding or decision of the District Court may of right have the case retransferred to the Superior Court for trial by filing a request to do so within ten days after notice of such finding. We stated that § 102C required that for any case tried in the District Court under its provisions, 'there must be a report of questions of law to the Appellate Division,' and concluded that it was only '(a)fter final disposition in the District Court, including review of all questions of law by the Appellate Division if a report or reports be sought, (that) the case would be ready for retransfer by the District Court to the Superior Court.' 342 Mass. at 164--165, 172 N.E.2d at 692. Thereafter, in McGloin v. Nilson, 348 Mass. 716, 718--719, 205 N.E.2d 703 (1965), we held that in a case transferred to the District Court under § 102C, the statutory ten day period for requesting retransfer of the case to the Superior Court began to run on the final disposition by the Appellate Division of any review sought of the District Court's finding.

The defendant argues that the reasoning and holding of the Lubell case, supra, and the McGloin case, supra, and the appellate procedure suggested therein for cases governed by G.L. c. 231, § 102C, are equally applicable to cases governed by G.L. c. 231, § 104. We agree. The similar provisions of the latter section for a trial in the District Court and for a subsequent transfer to the Superior Court and its requirement that a case so transferred be treated in the same manner as a retransferred case under § 102C convinces us that we should also apply the language and the time schedule of the Lubell and McGloin cases to those arising under G.L. c. 231, § 104. The result is that in this proceeding the defendant had a second opportunity to exercise its right to remove its case to the Superior Court, provided, however, it did so within ten days after notice of the decision of the Appellate Division dismissing its first report. As noted, the defendant failed, within that ten day period, to take any of the steps necessary to remove the case to the Superior Court. 'Failure in the performance of any one of these essential prerequisites deprives the defendant of . . . (its) right to removal of the case.' H. K. Webster Co. v. Mann, 269 Mass. 381, 384, 169 N.E. 151, 153 (1929). The defendant thus lost its right of removal by reason of its failure to comply with the reasonable statutory limitations on the exercise of the right.

The defendant seeks to avoid the conclusion just stated by pointing out that in several cases governed by G.L. c. 231, § 102C, this court has departed 'as a matter of discretion, from the procedure established in Lubell, supra, by hearing direct appeals from the decision of the appellate division prior to removal to the Superior Court,' and cites HEIL V. MCCANN, --- MASS. ---, 275 N.E.2D 889 (1971)^B. It then argues that we have equal discretion to hear a similar direct appeal in a case governed by § 104, and that we did so in this case when we first considered it. Finally, the defendant appears to suggest that what this court did as a matter of discretion in the Heil case has somehow become a precedent entitling it to the same treatment. It attempts to support this argument by the statement that '(t)he Appeals Court, relying on footnote 1 in Heil, . . . recognized the practice in HALL V. OPACKI, . . . (MASS.APP.CT. (1973) 294 N.E.2D 489),^C and . . . in Consolo v. Massachusetts Bay Transp. Authy. . . . (Mass.App.Ct. (1973) ^d, 296 N.E.2d 718).' ⁶

We stated in the Lubell case, supra, that 'a case under § 102C is not subject to appeal under c. 231, § 109, and can be brought to this court only (1...