14 Pa. Super. 309 | Pa. Super. Ct. | 1900
Opinion by
The plaintiff was, in the year 1897, the sheriff of Washington county, and the defendants were engaged in the coal mining business, their mines being located some distance from the town of Washington. In July of that year there were widely spread labor disturbances and the miners throughout the country were engaged in a general strike, but the employees of the defendants still continued at work and the mines were in operation. On Sunday, July 11, 1897, the defendants telephoned to the plaintiff that they expected a visit of a delegation of striking miners, coming with a view to induce the employees of the defendants to join in the strike, and requested the plaintiff to send them three special deputies for the purpose of protecting their property and employees. The sheriff, on the afternoon of that day, procured two special deputies and sent them to the premises of the defendants, where they reported for duty to those who represented the defendant firm. A third special deputy was sent to the defendants the next day, and from time to time thereafter special deputies were supplied to them, as they
That the furnishing of these special deputies to the defendants was not, under the circumstances, unlawful, but that the sheriff was not legally required so to do and that it was outside of his official duty is well settled. A contract upon the part of the defendants to pay these special deputies, or to reimburse the sheriff for his expenditures in that behalf, would be enforceable at law. The burden is upon the sheriff to establish by evidence that the defendants had promised to pay: McCandless v. Steel Company, 152 Pa. 189. The only way of suppressing riots which the sheriff could be legally required to use was the posse comitatus, the armed power of the county: Curtis v. The County of Allegheny, 1 Phila. 237. While the defendants, therefore, could not compel the sheriff to furnish special deputies, to be by the sheriff paid a reasonable compensation, the furnishing of such deputies and their employment by the defendants in the protection- of their property was not unlawful, and an agreement upon the part of the defendants to pay such deputies at a rate agreed upon would be binding. The soundness of this position is conceded by the defendants. The plaintiff alleges that these special deputies were furnished to the defendants under an express agreement that they should pay the men $2.50 per day, and that they were to be kept by the defendants during the term of their employment. The defendants deny liability upon two grounds, first, that they never made any agreement to pay; second, that in failing to prevent the delegation of striking miners from marching back and forth upon the public highways in the neighborhood of defendants’ works, headed by a brass band and singing songs and using opprobrious epithets towards the miners employed by the defendants, while passing the premises of the defendants, and so interfering with defendant’s business, the sheriff violated his duty as the highest peace officer of the county, representing the commonwealth, and also violated his duty in said contract relation with the defendants.
The third assignment, in so far as it specifies the overruling of the objection to the admission of evidence as to a custom or practice of the sheriff’s office of Washington county, would have been fatal to the plaintiff’s case upon this appeal if the answer of the witness had been what plaintiff’s counsel manifestly expected. It was the defendant who -was asked to testify as to the existence of this custom, and he flatly denied the existence of any such custom. Under the offer to prove the custom no evidence of its existence was produced, and the plaintiff was thus saved from the consequences of his persistency in attempting to force such evidence upon the consideration of the jury. The third assignment of error is overruled.
The question asked of the defendant in his cross-examination as to what was his understanding during the first week and before the actual trouble, in view of what he had said to the sheriff and the course of dealing between them in former years, as to whether what he had done did not involve an obligation on his part to pay, was eminently proper, considering the absolute contradiction between the parties as to what had actually occurred with regard to an express promise to pay. It was asking the defendant to say what had been his understanding of the agreement before there was any trouble with regard to it. The answer of the witness was that he did not then understand the employment of these special deputies, under the circumstances in anticipation, as outside the legal duties of the sheriff, and that, therefore, he did not consider that there was any obligation on him to pay. Even if the question had been objectionable, the answer to it did no harm, and the fourth assignment is dismissed.
The language of the court which is assigned for error in the fifth specification was not objectionable in itself. The language which almost immediately followed, taken in connection with the evidence complained of, presented the case to the jury in a manner of which the defendants certainly had no right to qomplain,’ for the learned judge said: “ You mqst not only ay-
The seventh and eighth specifications of error relate to the refusal of the court below to admit evidence as to what was said by certain parties at a public meeting held at Canonsburg. This meeting was held at a point distant from the mines. There was no offer to show that the sheriff had any control over the persons who made the speeches, nor was there any offer to show that any of the speakers had been connected with the camp of the strikers, near the mine of the defendants. ■That the irresponsible vaporings of a man and woman who made speeches to a crowd of people at a point distant from the locus in quo, could not, under the circumstances of this case, affect the right of the parties under this contract is manifest.
All of the remaining assignments of error have reference to the rejection of evidence in support of, and the rulings of the court upon the principles governing the second ground upon which the defendants sought to avoid liability. This inner line of defense was that the sheriff, even if the defendants had made a contract to pay the special deputies, having failed to stop the marching and countermarching of the striking miners upon the public highways in the vicinity of the defendants’ works, and the business of the defendants having been interrupted as a consequence, there could be no recovery in this action. There was no allegation that the special deputies had failed to faithfully perform every duty required of them by either the sheriff or the defendants. The sole reliance of the defendants upon this branch of the case was, first, that the sheriff had violated the duty which he had undertaken to perform under his contract relation with the defendants; second, that he had .failed to perform his official duty as the highest peace officer of the county, representing the commonwealth. The defendants undertook to show that because of such failure of the sheriff to
The claim of the defendants that they have a right in this action “ to set off damages suffered by them because of a violation by the sheriff of his official duty as the highest peace officer of the county, representing the commonwealth,” cannot be sustained. It is not necessary to put this upon the narrow ground that the defendants have not pleaded payment, and, for that reason, have not brought themselves within the terms of the defalcation act of 1705, 1 Sm. L. 49: Coulter v. Repplier, 15 Pa. 208; McQuaide v. Stewart, 48 Pa. 198. The ofcial duty of the sheriff did not grow out of this contract and was in no sense dependent upon it. The defendants entered into this contract because they deemed the means to which they resorted for the protection of their property more satisfactory than those which the law required the sheriff to employ for that purpose. The official duty of the sheriff is not founded in contract relation, and it is against public policy that any private contract should be made with regard to the manner in which he, as sheriff, shall discharge the duty imposed upon him by law to preserve the public peace. This last defense, therefore, was not an attempt to set off unliquidated damages resulting from an independent contract. It was an attempt to set off damages resulting from a neglect of official duty and founded upon a technical tort. That such damages are not the subject of set-off under our defalcation act is well settled : Ahl v. Rhoads, 84 Pa. 319. The amount which the. sheriff sought to. recover in his action was due to him personally. The unliquidated damages which it was sought to set off against this claim were recoverable, if at all, against the sheriff in his official capacity, and, therefore, could not be defalked: Tagg v. Bowman, 99 Pa. 376; 108 Pa. 273. All the assignments of error are dismissed.
Judgment affirmed.