Frost v. American Surety Co.

Braley, J. The defendant is the surety on a bond given under R. L. c. 108, § 36, by a licensed private detective, and, judgment having been obtained against the principal for trespass, assault and slander, the bond, has been put in suit for the benefit of the plaintiff, the judgment creditor. The first statutory reference to private detectives appears in the St. of 1879, c. 305, §§ 7, 8, entitled “An Act to constitute a district police, and to abolish the State detective force,” re-enacted without change in Pub. Sts. c. 103, §§ 7, 8, and in the R. L. c. 108, §§ 36, 37. See Commonwealth, v. Connolly, 97 Mass. 591. [296] It is made a misdemeanor punishable by fine or imprisonment or both, for any citizen to engage in the general business of a private detective without having obtained a license from the public authorities authorized to grant it. While the statute expressly provides that the licensee shall not be clothed with the power and authority of constables or police officers, the purpose for which the license is granted is to enable him “to act as a private detective for the detection, prevention and punishment of crime.” It is for the licensing board to pass upon the competency and integrity of the applicant and while by the proviso he is not ranked with public officials entrusted with the conservation of the public peace, yet, in the accepted meaning of the words, he is designated as a person unofficially engaged in obtaining secret information for the use and benefit of those who choose to employ him and to pay his compensation. State v. Bennett, 102 Mo. 356. The license enables him to engage in a business which, if unlicensed, is prohibited, and, as a precedent condition to granting the license, a bond with sureties to be approved by the licensing board is required, running to the treasurer of the municipality with a condition that the licensee will properly discharge “the services which he may perform by virtue of such license.” The “ services ” obviously are the services rendered in “the detection, prevention and punishment of crime” under his employment by private persons who generally desire to obtain evidence enabling them to support or defend civil actions or criminal prosecutions successfully. But a private detective, under the statute, is to be distinguished from a sheriff or constable, who is required to give bond conditioned for the faithful performance of their duties. B. L. c. 25, §§ 88, 90; c. 23, §§ 1, 8. These officers are charged with the performance of public, not servile, duties and for tortious acts done under color of their office the person aggrieved may put their official bond in suit. Skinner v. Phillips, 4 Mass. 68. Lowell v. Parker, 10 Met. 309. Cambridge v. Foster, 195 Mass. 411, 416, A private detective, however, performs no official service and he owes no duty except to the person who employs him. The relation is that of master and servant, and the bond is for the protection of the employer alone, who is responsible for the de [297] tective’s acts of malfeasance. If the condition of the bond is to be so enlarged as to be analogous to the condition of a constable’s bond and the benefit of the bond extended to all those who may suffer by a breach, it should be done by legislative enactment. In the opinion of a majority of the court, the statute, as it now stands, restricts the bond to the protection of the employer, and by the terms of the report, judgment is to be entered for the defendant. So ordered.