3 Mass. App. Ct. 700

January 23, 1975

There was no error in denying the motion to suppress the victim's in-court identification of the defendant. There was "clear and convincing evidence" (United States v. Wade, 388 U.S. 218, 240 [1967]) at the voir dire which supported (if it did not compel) the judge's findings that such identification would be based "solely" on the victim's actual observations of the defendant over a period of at least two hours during the night in question and that "[i]n no way was the [suppressed] police-station episode so impermissibly suggestive as to lead inevitably to irreparable mistaken in-court identification." Compare Commonwealth v. Hands, 2 Mass. App. Ct. 890 (1974).

Judgment affirmed.


3 Mass. App. Ct. 700

January 30, 1975

In this action of tort for negligence, the defendant excepted to the denial of its motion for a finding in its favor. The plaintiff, a customer in the defendant's bar, was injured when struck by another customer. It was the duty of the defendant to exercise reasonable care to prevent injury to the plaintiff by the acts of third persons whether accidental, negligent or intentional. Carey v. New Yorker of Worcester, Inc. 355 Mass. 450, 452 (1969). Sweenor v. 162 State St. Inc. 361 Mass. 524, 526 (1972). There was evidence from which the judge could have found a breach of that duty. The defendant's bartender should have reasonably anticipated the likelihood of injury to the plaintiff from the observable behavior of his assailant prior to the striking and taken appropriate steps to forestall that occurrence. McFadden v. Bancroft Hotel Corp. 313 Mass. 56, 60 (1943). Greco v. Sumner Tavern Inc. 333 Mass. 144, 145 (1955). Quigley v. Wilson Line of Mass. Inc. 338 Mass. 125, 128, 129 (1958). Wood v. Ray-Al Cafe, Inc. 349 Mass. 766 (1965). Sweenor v. 162 State St. Inc., supra.

Exceptions overruled.


3 Mass. App. Ct. 700

January 30, 1975

In his appeal from the order denying his petition for a writ of mandamus, brought for the purpose of challenging the validity of an amendment to the zoning by-law of the town of Dennis, the petitioner's sole contention is that the selectmen of the town had no power to call the special

Page 701

town meeting at which the amendment was adopted or to include an article concerning the proposed amendment in the warrant for any town meeting because of the absence of a request therefor by the number of registered voters prescribed by the sixth or by the seventh sentence of G. L. c. 39, Section 10 (as amended through St. 1964, c. 1, Section 1), and that the action of the town meeting was therefore invalid. We do not pause to consider the propriety of the remedy sought by the petitioner, as we think it clear from the first sentence of Section 10 that a board of selectmen has the power to call a special town meeting and to insert articles in its warrant on their own initiative and that the sixth and seventh sentences of that section do no more than require selectmen to exercise those powers when requested to do so by the specified numbers of voters. See Walsworth v. Casassa, 219 Mass. 200, 204-205 (1914); Tilden, Town Government, 38 B. U. L. Rev. 347, 349 (1958); Johnson & others, Town Meeting Time, Section 4, at 12-13 (1962).

Order denying petition affirmed.