219 Mass. 15 | Mass. | 1914
There was testimony tending to establish the following facts: John B. Grenier, the plaintiff’s intestate, was addicted to the excessive use of intoxicating liquors. On November 14, 1911, he spent a large portion of the day in the liquor saloon of the defendants, and there drank several glasses of ale. At eleven o’clock, p. m., the hour for closing, he was under the influence of liquor and in a dull and “dopey” or stupid condition. The defendant O’Neill and another man carried or supported him into the entry, and urged him to go home or to the ICeough Hotel; but he objected and wanted to remain in the saloon. Thereupon he was assisted into a room adjoining the saloon, ■ and was allowed by the defendant O’Gara to remain there. This side room was about six by eight feet in size, without windows; and it contained a table, some chairs and beer cases. The door
The plaintiff’s declaration originally contained two counts, but three others were added later. It is to be noted that none of them is based on a claim for imprisonment. Further, no reference to the civil damage statute, R. L. c. 100, § 58, is made in the declaration or in the plaintiff’s brief, and presumably it was not relied on. See Barrett v. Dolan, 130 Mass. 366.
As to the first count, alleging that one “John Doe,” while under the influence of liquor furnished by the defendants, assaulted Grenier, it is enough to say that there was no evidence in support of it. It is equally clear that a verdict for the plaintiff on the fifth count would not be warranted. This is based on the death statute, R. L. c. 171, § 2; and there was no evidence that Grenier was in the exercise of due care within the meaning of that statute. See Hudson v. Lynn & Boston Railroad, 185 Mass. 510.
As a general verdict for the defendants was ordered, however, it must be set aside if the plaintiff was entitled to go to the jury on any of the counts. In the third count there is an averment that the defendants “did assault and beat the said Grenier.” It is true that the count as a whole proceeds on other grounds; and it is doubtful whether the attention of the presiding judge was directed to the fact that an assault was therein alleged. But no demurrer was filed, and there is here a sufficient allegation of an assault. We are of opinion that there was evidence of unpermitted violence to the person of Grenier, by one or both of the defendants, in removing him without his consent to a place of danger and leaving him unprotected there, while he was virtually in a stupor and incapable of looking out for himself. It could be found that this constituted an assault for which they would be liable. Hudson v. Lynn & Boston Railroad, 178 Mass. 64.
As the exceptions must be sustained for this reason, it is unnecessary to determine whether there was any evidence to entitle the plaintiff to go to the jury under the 'second or fourth counts, which seem to be based on alleged negligence of the
Exceptions sustained.
