Arcade Co. v. Boxwell, No. 2564

No. 2564 | D.C. Cir. | Dec 1, 1913

Mr. Chief Justice Shepabd

delivered the opinion of the Court t

1. We are of opinion that the court erred in excluding the evidence of Dr. Tteichelderfer relating to the conditions of temperature and moisture in the corridor when he inspected the same. There had been evidence on the part of defendants that, there had been no changes, whatever, in the construction of the compartment or the pipes therein since the original construction; and they offered to present evidence, which they subsequently did, of additional witnesses, to the maintenance of the same conditions continuously thereafter.

Plaintiff had testified to conditions of moisture, darkness, and excessive cold in the corridor in which he had been confined for fifteen or twenty minutes; and the issue was a material one.

Other Avitnesses to those conditions Avere employees of the defendant corporation, and, AA'hile the evidence of this witness Avas cumulative, it Avas of materiality for that reason if none other. Assuming that, because the witness’s inspection had occurred more than a year after June 1, 1011, it was entitled to but little weight, nevertheless that Aveight was for the determination of the jury.

2. It was also error to exclude the opinion of the same witness, Avho qualified as a medical expert, as to the nature of plaintiff’s illness based upon plaintiff’s statement of his symptoms and the witness’ examination of him.

3. The next error assigned is on the exception taken to the refusal of the court to direct a verdict for defendants.

The grounds upon Avhich this direction was asked are, in substance, that the undisputed testimony shoAA’S that plaintiff’s lease of the market stall had been legally terminated, and that he had no longer a right to occupy it; and that plaintiff’s imprisonment was reasonable under the circumstances for the. protection of person and property.

We are of the opinion that the instruction should have been gÍAren.

The change of stalls and consequent reduction of the monthly rent had not affected the other covenants of the lease. Having failed to pay his rent, as covenanted, on May 31, the defendant market company exercised its option to terminate the lease in strict pursuance of the covenant.

On Juno 1 plaintiff had no legal right to occupy or do business at tlio stall. Ills only legal right was to the possession of his meat for removal from the building. lie was offered possession of.it for that pmpiose. This he refused to do, and declared his intention to bring the meat to the stall and carry on his business there. Seizing his cleaver he started to the corridor entrance with the avowed intention to break the lock, remove his meat to the stall, and carry on business there, notwithstanding the termination of his lease.

Assuming that lie had the legal right to the possession of h'is meat, he had no right to repossess himself of it hv an act of violence; much less to reoccupy his former stall. That he was angry there is no doubt. He said in giving his own testimony that he was not “so angry that he was going to hurt anybody without they' hurt him.” In other words, he intended to use unlawful violence in breaking the lock and taking his meat to the stall, and to hurt anyone who interfered. Defendant Averill wanted the special officer in defendant’s service to apprehend or stop plaintiff, hut that officer, apprehending personal injury, declined the job. Plaintiff says that when he “took up his cleaver and started, Averill called to him to wait a moment, but he did not stop or turn around, but went on to the cold storage with his cleaver in his hand to break the lock off, and was followed by Averill and the market master, who shoved the door to and fastened it on the outside after he entered the corridor.” Defendants had the right to protect their property. Plaintiff was between them and the corridor entrance, so that they' could not close the door in it. They apprehended, and apparently had good (anise to apprehend, violence if they should use force upon him. " Instead of attempting force, they closed the corridor after ho entered it, and immediately telephoned for a regular police officer. Plaintiff made no,complaint of the cold, di,d not offer to desist, or ask release. As soon as the police officer came, he was released and was persuaded by the officer to leave the premises.

Was the conduct of the defendants reasonable under all :tbe circumstances related? ' .....-

, 3 ir view of plaintiffs •angeNálfid'pdskéssiom of-a deadly'wbapon, and his own statement of his conduct and intentions, we are of opinion that defendants’ conduct in closing the door was reasonable. Instead of using force and running the risk of personal injury to plaintiff or themselves, they closed the door upon him and effectually prevented it.

A peaceable person desiring to protect his person as well as his property could not reasonably be expected to do less.

Upon the evidence the court should have directed a verdict for the defendants.

After what has been said, it is unnecessary 'to. discuss the error assigned in the instruction relating to exemplary damages.

The judgment is reversed, with costs, and the cause remanded for a new trial. Reversed.