178 Mass. 151 | Mass. | 1901
This is an action of tort against the keeper of a place of amusement in Boston, seeking to make him liable for alleged official misconduct of a special police officer upon his premises. The first count is for an assault and battery on the plaintiff, treating the special policeman as the defendant’s servant. That- was disposed of when this case was here before. 171 Mass. 263. There was no evidence put in or offered which tended to show that the officer was acting as the defendant’s servant apart from the statute. After the decision by this court the plaintiff added another count setting forth the appointment of the special police officer on the defendant’s written application and bond, (under St. 1878, c. 244, § 6, now repealed, St. 1898, c. 282, § 4,) and alleging an assault and battery by the officer while in the discharge of his duties in the defendant’s theatre. In other words the plaintiff attempted to evade the former decision by a slight change in the words of his declaration, .and by suggesting that although the police officer was not the defendant’s servant the defendant was liable for his official misconduct to the same extent as if he were. The scope of our decision was wider, and disposes of the new count as well as of the old one. The only remedy against the defendant for the misconduct as such is on his bond. Whether or not it is necessary to get a judgment against the police officer before proceeding upon the bond, as in the case of a Boston constable, (St. 1814, c. 165; Calder v. Haynes, 7 Allen, 387,) there is no such necessity for a judgment against the defendant, and, as we once before have decided, there is no ground for a judgment against him in the act. St. 1878, c. 244, § 6.
Pxeeptions overruled.