
    Michael Healey vs. George E. Lothrop.
    Suffolk.
    January 8, 1901.
    March 1, 1901.
    Present: Holmes, C. J., Knowlton, Morton, Barker, & Loring, JJ.
    A special police officer appointed under St. 1878, c. 244, § 6, by the city of Boston on the application of the proprietor of a place of amusement to serve without pay from the city, is not the servant of such proprietor, and, if he commits an assault while in the discharge of his duties, the only remedy against the proprietor is on his bond to the city treasurer required by that section, making the proprietor liable to parties aggrieved by any official misconduct of such police officer. It is not necessary or possible to get any preliminary judgment against such proprietor before proceeding upon the bond. Whether it is necessary to get a judgment againsj the officer before so proceeding, qucere.
    
    Tobt against the proprietor of a place of amusement for an assault and battery committed by a special police officer appointed by the city of Boston under St. 1878, c. 244, § 6, on the application of the defendant, and alleged to be in his employ. Writ dated March 16,1895.
    The defendant was the proprietor of a place of amusement in Boston called the Grand Dime Museum. On his application the Board of Police Commissioners of the city of Boston had appointed one Mead, by whom the assault was alleged to have been committed, a special police officer under St. 1878, c. 244, § 6, to serve without pay from the city. The defendant had given to the city treasurer the bond required by the section named, to be liable to parties aggrieved by any official misconduct of such police officer to the same extent as for the torts of agents and servants in his employment. The section provides that “ proceedings may be had upon said bonds in the same manner as upon the bonds of constables.”
    At a previous stage of this case, in a decision reported in 171 Mass. 263, this court decided that Mead was not the servant of the defendant. After that decision the plaintiff amended his declaration by adding a second count setting forth the facts about the appointment of Mead as a special police officer and the giving of the bond by the defendant, and alleging that Mead under said appointment and while in the discharge of his.duties as such officer assaulted the plaintiff.
    
      At a new trial in the Superior Court, Maynard, J. ruled that on the evidence the action could not be maintained on either count. By his direction the jury returned a verdict for the defendant on both counts ; and the plaintiff alleged exceptions.
    In behalf of the plaintiff it was argued that a judgment against the defendant was a necessary preliminary to a suit on the bond, while an action against Mead would not be conclusive against either the defendant or the sureties on his bond.
    
      A. M. Pinkham & E. Lowe, for the plaintiff.
    
      C. F. Eldredge, for the defendant.
   Holmes, C. J.

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.  