55 N.E.2d 902 (Mass. 1944)
The New Cocoanut Grove, Inc. operated a night club at 17 Piedmont Street in Boston on November 28, 1942, and had done so for approximately nine years prior.1 The business employed about eighty persons and offered food, drink, and entertainment to the public.2 Barnett Welansky dominated the corporation, holding all capital stock in his name or others', controlling the property, and receiving all profits.3 Welansky last had personal knowledge of the premises on November 16, 1942.4
On that date Welansky became ill and remained hospitalized until December 11, 1942.5 During his absence his brother James Welansky and employee Jacob Goldfine managed some operations without altering established practices.6 The premises featured a foyer with a revolving door, the Melody Lounge in the basement, the Caricature Bar, main dining room, and a Cocktail Lounge opened the previous day.7 Multiple exits led to Piedmont Street, Shawmut Street, and Broadway, though several were locked, obstructed by clothing racks or tables, or not visible to patrons.8
The night club was crowded that evening, with estimates of two hundred fifty to four hundred persons in the Melody Lounge, four hundred to five hundred in the main dining room and Caricature Bar, and two hundred fifty in the Cocktail Lounge.9 A fire ignited in the Melody Lounge shortly after ten o'clock.10 A sixteen-year-old bar boy lit a match to fix a light bulb near an artificial palm tree.11 The flame caused the tree and cloth ceiling to flame up rapidly.12 The fire spread quickly across the premises.13 The lights failed.14 Patrons panicked while attempting to flee.15 Many exits proved ineffective during the emergency: the door at the Melody Lounge stairway remained locked until forced by firemen, the revolving door jammed, and other doors to Shawmut Street stayed locked. Numerous patrons died from burns, smoke, or being crushed near the blocked exits, with bodies found piled inside several doorways.16 The defendant, his brother, and Goldfine were indicted on multiple counts of manslaughter for the deaths of patrons.17
Following trial in the Superior Court, the defendant was convicted on counts seven through sixteen of one indictment and counts seven through fifteen of the other.18 He received concurrent sentences of twelve to fifteen years in state prison.19 The defendant appealed the convictions to the Supreme Judicial Court of Massachusetts.20
Whether the indictments, read together with the specifications, sufficiently set out the crime of manslaughter?21
The judge was bound to require a bill of particulars only to the extent that without it the indictment would be deficient in that the offence charged would not be fully, plainly, substantially and formally set out, as required by art. 12 of the Declaration of Rights.22 For constitutional purposes all that is required is that the indictment, read with the bill of particulars, be sufficient fully, plainly, substantially and formally to give the defendant reasonable knowledge of the crime with which he is charged.23
Yes. The counts alleged in substance that the corporation maintained and operated the night club to which it invited the public, that the defendants were under a legal duty to use reasonable care to keep the premises safe for invitees, and that they wilfully, wantonly and recklessly neglected that duty by failing to provide proper means of egress and by permitting overcrowding, directly matching the established facts that the New Cocoanut Grove, Inc. operated the night club at 17 Piedmont Street with locked doors, obstructed exits, and hundreds of patrons present on November 28, 1942.24
The specifications furnished further detail on the absence of proper exits, the locked condition of the Melody Lounge stairway door, and the foreseeable harmful consequences of fire, supplying the defendant with reasonable knowledge of the manslaughter charges.25 The shorter counts alleging assault and battery by reckless maintenance of the premises likewise tracked the facts of the jammed revolving door and piled bodies at blocked exits.26
The motions to quash were properly denied because the indictments read with the specifications met constitutional requirements.27
Whether the defendant could be held criminally responsible for conditions at the night club on November 28, 1942, while he remained hospitalized?28
Criminal responsibility is generally personal, and personal fault must be shown.29 The defendant was in full control of the corporation, its officers and employees, its business and its premises, and could not escape criminal responsibility by using a corporate form.30 There is no evidence of any act, omission or condition at the night club on November 28, 1942, that was not within the usual and regular practice during the time before the defendant was taken ill.31
Yes. The established facts show that Welansky dominated the corporation, owned all stock, took all profits, and last inspected the premises on November 16, 1942, when the locked doors, obstructed panic exits, and inadequate emergency routes already existed as part of the regular practice.32 During his hospitalization the brother and Goldfine made no changes, so the same system continued without alteration.33
Because the defendant knew the usual practices would persist and had not delegated responsibility for safety exits, his personal fault in maintaining the dangerous conditions remained attributable to him even while he was absent from the premises.34
The defendant was properly held criminally responsible for the conditions that existed on the night of the fire.35
Whether the trial judge erred in ordering a view of the burned premises and admitting post-fire photographs?36
No. The walls, most of the partitions, and even some of the furniture remained after the fire, allowing the jury to comprehend the layout of the foyer, Melody Lounge stairway, Caricature Bar, main dining room, and Cocktail Lounge exits described in the established facts.40
Any alterations caused by the fire or subsequent actions could have been, and were permitted to be, explained by testimony, so the view and photographs introduced no unfair prejudice.41
The trial judge did not err in ordering the view or admitting the post-fire photographs.42
Whether evidence concerning the electrical system, uninstalled fire doors, and other physical conditions of the premises was properly admitted?43
The violation of such a statute is not negligence per se, but sometimes is evidence of negligence.44 Standing by itself, it would not warrant a finding of wanton or reckless conduct.45 But it might be considered with other evidence.46 When the evidence was introduced the judge could not foresee that knowledge on the part of the defendant and some causal relation would not be shown.47
Yes. The evidence that approved plans called for fire doors held by fusible plugs and an additional exit from the Cocktail Lounge, none of which were installed by the time Welansky last saw the premises on November 16, 1942, was admissible because it could be considered together with the facts of the locked Melody Lounge door, the clothing rack blocking the vestibule door, the hidden panic doors, and the tables placed within two feet of the Venetian doors.48 The electrical system evidence was properly received at the outset because the judge could not yet know whether a causal link to the deaths would appear, and the defendant never moved to strike it.49
These physical conditions bore directly on the claim of reckless disregard for patron safety in the event of fire from any cause, including the match that ignited the palm tree and cloth ceiling.50
The evidence was properly admitted as relevant to the issue of wanton or reckless conduct.51