Slattery v. American Surety Co.

• Decision Date: 20 May 1914
• Citation: 217 Mass. 507,105 N.E. 373
• Parties: SLATTERY v. AMERICAN SURETY CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

217 Mass. 507

105 N.E. 373

SLATTERY v. AMERICAN SURETY CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 20, 1914

COUNSEL

Edward E. Clark, Geo M. Poland, and Loring P. Jordan, all of Boston, for appellant.

Parker D. Morris, of Boston, and Daniel W. Flynn, of Dorchester, for appellee.

OPINION

RUGG C.J.

This case was tried first before a judge of the municipal court of the city of Boston, who overruled the demurrer and ordered judgment for the plaintiff. The action of the trial judge was irregular, for by R. L. c. 173, § 17, he should have made 'an order relative to the filing of an answer.' But in any event, upon the record of that court as it stood, the case then was ripe for judgment (St. 1912, c. 649, § 8), and rightly was reported to the appellate division for review of the ruling of law thus made. The plaintiff's appeal from the order of the appellate division that the demurrer ought to be sustained brings the case here properly. Cotter v. Nathan & Hurst Co., 211 Mass. 31, 97 N.E. 144; Loanes v. Gast, 216 Mass 197, 103 N.E. 473.

This is an action on a liquor license bond in the form prescribed by R. L. c. 100, § 42, conditioned that Frank Marotta and Edward Tedeschi, doing business as Marotta & Tedeschi, 'shall well and truly comply with all the provisions of law under which he had been so licensed, and shall also pay all costs damages and fines which may be incurred by a violation of the provisions of chapter 100 of the Revised Laws.' The declaration alleged that there had been a breach of the fifth clause of the bond (which was as follows: 'That there shall be no disorder, indecency, prostitution, lewdness or illegal gaming on the licensed premises'), in that disorder was permitted on the licensed premises by said Marotta committing an assault on one Silva, for which action was brought and judgment for a substantial sum recovered, which is unsatisfied. The question is whether this is a breach of the bond.

It was decided in Day v. Frank, 127 Mass. 497, and in O'Connell v. O'Leary, 145 Mass. 311, 14 N.E. 143, that such a bond was security for damages recovered under what is now R. L. c. 100, § 62, and in Howes v. Maxwell, 157 Mass. 333, 32 N.E. 152, that it was security for damages recovered under what is now R. L. c. 100, § 58. These are specific provisions for the recovery of civil damages against holders of liquor licenses. It is conceded by the defendant that such a bond is security for all damages arising out of causes of action set forth in the provisions of the act, such as its civil damage sections. It contends, however, that the bond does not extend to damages for torts occurring upon the licensed premises contrary to the conditions of the license.

The requirement for a bond with substantially the same general conditions as in the present statute was in the original license law. St. 1875, c. 99, § 9. That section also set out the form of the bond, the condition of which was that the licensee 'shall well and truly comply with all the provisions of the act under which said license is issued, and also shall pay all damages which shall be recovered from him under and pursuant to the provisions of said act. * * *' The...