Abraham v. City of Woburn

Hennessey, C.J.

I dissent. The direct evidence here, considered with all inferences that could fairly be drawn, is not sufficient to warrant a verdict for the plaintiff under G. L. c. 269, § 8.

*733We have stated in Yalenezian v. Boston, 238 Mass. 538, 542-543 (1921), that the statutory words “riotously or tumultuously assembled” are to be read “conjunctively,” to describe “an unlawful assembly which has proceeded ... in a manner to give firm and courageous persons in the neighborhood of such assembly reasonable grounds to apprehend a breach of peace.” This definition accords with a legislative intent that the municipality should be liable only when the destructive event was so open and notorious that responsible authorities knew or should have known of the event.

The evidence and the permissible inferences here establish no more than extensive vandalism performed in the interior of a building, and neither seen nor heard by any “persons in the neighborhood.” This is a far cry from a showing that the authorities knew or should have known of the occurrence. The legislative purpose of such a statute is obvious: the municipality, on notice of the danger, fails to protect the citizen’s property at the risk of civil liability. The construction which the majority reach here comes close to imposing an insurer’s obligation upon the municipality. I have in mind the frequent and clandestine acts of vandalism today in homes and buildings.

I emphasize that, perhaps contrary to the reasoning of the Appeals Court, I (like the majority of this court) would of course allow the plaintiff to prove his case by fair inferences as well as direct evidence. Even under that approach, the plaintiff fails, in my opinion; a verdict for the municipality should have been directed.