77 Vt. 294 | Vt. | 1905
This is an action on the case brought by the plaintiff, a corporation, against the defendant, a partnership and unincorporated association consisting of 'more than five members and having a president, secretary, clerk and treasurer, to recover damages for the defendant’s alleged unlawful
It appeared that the plaintiff, prior to' the acts complained of, was a manufacturing corporation duly organized under the laws of this State, located and doing business in the city of Rutland; that its business was the manufacture of machinery for mills and stone work of all kinds, also of various other kinds of machinery and engines, and it carried supplies for steam fitters and mills in this and other countries; that it had erected an expensive and valuable plant with adequate power, and employed about one hundred skilled machinists, also moulders and other workmen; that it had a large amount of capital invested in its business which was carried on at a profit, and that at the time of the alleged wrongful acts of the defendant it had contracts on hand with customers to furnish them its goods at a profit when manufactured.
The defendant association was composed of machinists, many of whom were employed in the mills and shops of the plaintiff, and the plaintiff claimed that the defendant conspired with its members and with other labor organizations in Rutland and vicinity to force the plaintiff to adopt a schedule of hours of labor by which nine hours should constitute a day’s work, and to increase the wages of its workmen so that the plaintiff could not do business at a profit-nor complete its contracts except at a loss; that the plaintiff refused to comply with this demand, and that thereupon, on May 20, 1902, the machinists, at the order and direction of the defendant, quit their work and conspired and confederated together and wdth divers other persons unknown to the plaintiff, toi oppress the plaintiff and force it to accede to' their illegal demands, and by threats, intimidations, bribery and violence sought to intimidate and drive away the other workmen of the plaintiff, and detailed pickets, spies and watchmen to stand guard about
The defendant denied the conspiracy alleged and claimed that whatever was done by it and the other associations was, through a lawful combination among them, to1 effect by lawful means the lawful purpose of forcing the plaintiff to lessen the hours of labor and increase the wages of workmen.
No question was made in the court below in respect to the sufficiency of the declaration, therefore it cannot be considered here.
The plaintiff offered evidence tending to establish all the material allegations in the declaration, most of which was received under the defendant’s exception. The defendant relies upon seven exceptions to- the admission of evidence.
I. The testimony of Patch about the visit of a committee, and what they said to him; the admission of plaintiff’s exhibits 1 and 2 and all that Patch testified to upon the sub
2. To the testimony in respect to the threats and acts ■of McDonald:
3. About the distribution and posting of exhibits 4 and 3, called “stickers:”
4. The testimony of Alexander Sanchegrin on the ground that there was no proof that Page was a member of ■■defendant lodge, nor that E. A. U. Hall was used exclusively by that lodge:
5. As to all testimony in respect to' the acts of Pennington and others relating to a boycott:
6. To the testimony relating to the acts of Young and Hines:
7. To all testimony respecting the conduct of Martin for the same reason.
All these exceptions were upon the ground that if the various acts testified to were in fact committed, the plaintiff had failed to show that the defendant directed or sanctioned them, or was in any way responsible for them; that these acts, if committed, were upon the motion alone of the plaintiff’s striking employees for the purpose of shortening time and increasing wages, and that these acts did not emanate from the defendant lodge nor any of the other lodges mentioned, and were not evidence of the conspiracy alleged.
1. The plaintiff’s evidence tended to show that, being engaged in business as alleged, on May 11, 1902, it received a written communication which reads: [Plaintiff’s exhibit 2.] ‘“International Association of Machinists.
To the Patch Manufacturing Co.,
Gentlemen: — Representing the machinists employed in your shop, we respectfully request that you establish the 'following conditions in the Patch Manufacturing works:
1. Fifty-four hours to constitute a week’s work. Any time over this to be considered overtime and to be paid for at the rate of time and one-half:
2. That the company recognize the union and union principles.
In explanation we would say that we must be governed by the Grand Lodge I. A. M., and to' hold our charter and remain union men we are forced to ask recognition. We further call your attention toi the fact that only union work goes in many places and we have to endorse your product as fair. If we do so longer, we feel that we must receive the benefits.
If the capacity of shops is insufficient we suggest that our union men will always be glad to' help out any situation by working evenings or to help- out the same as at present.
We mean by recognition of the union the meeting of shop committee to settle any differences on the same plan as moulders. Will be pleased to receive your reply on or before Wednesday night, May 14, addressed to Protection Lodge No. 215, Rutland, Vt.
( Seal of Protection Lodge.) ”
The plaintiff’s evidence also tended to1 show that on May 20 a large number of the plaintiff’s machinists and other workmen struck and left its employment, and that a few hours later on that day F. R. Patch, who was the plaintiff’s president and general manager, found upon his desk a written communication stating that the committee of Protection Lodge No. 215, I. A. of M. would meet at the E. A. U. Hall at 3 P. M. that day, and that any communication would be re
The plaintiff’s evidence tended to show that the defendant and some or all of its members confederated together and with other lodges of other classes of workmen and the members thereof, and in like manner drove away from the plaintiff’s service workmen of the plaintiff who did not strike and leave the plaintiff’s service on May 20th and other workmen whom the plaintiff had since that time employed.
Among the specific acts that the plaintiff’s evidence tended to show were committed by the alleged conspirators were that they detailed pickets and special watchmen to. watch the railroad station for the arrival of men, to patrol the streets of Rutland, to stand guard about the plaintiff’s works to' prevent other workmen from taking employment therein; that they sent out spies and watchmen upon the roads and railroads leading ten Rutland and intercepted men who were on their way to enter the plaintiff’s service, and by threats, bribes and promises in many cases prevented such men from entering the plaintiff’s service; and that the defendant also combined and confederated with other persons unknown to the plaintiff to do and in doing the acts alleged.
That after the strike was on the defendant appointed Walter Newton and John E. Capeless, two> of its members, to.
The plaintiff’s evidence tended to show that M'ártin was active in intercepting men who were on the trains and public roads going- to Rutland to take the places of men who had left the plaintiff’s employment, and by promises, threats, intimidation and personal violence he tried to turn them back and prevent their engaging in its service, and in some cases he succeeded in so' doing.
There were other lodges of workmen in Rutland with numerous members, and some of .the members of some of these lodges were in the plaintiff’s employment.
The plaintiff’s testimony tended to show that by reason of - the wrongful acts of the defendant it was unable to complete its contracts and take others and was injured in its business.
Mr. Patch testified, under defendant’s objection and exception, that on Septenrber 23rd eight new employees arrived, when he heard a disturbance at the entrance to' the plaintiff’s works, went out and saw a large mob, and that one Vincent, who was then in the plaintiff’s employment, was being roughly handled by McDonald, a man who had been in the plaintiff’s employment until the strike; that the witness warned McDonald that he was violating the injunction and that the latter replied: “Hell with your injunction; do- your worst;” that McDonald made threats toi Vincent if he returned to work. The plaintiff did not show, nor did any testimony in the case tend to show that McDonald was a member of Dodge 215, or had any connection whatever with the strikes, or that any of the strikers or any of the members of the lodge, or anybody connected with the claimed conspiracy, approved of what he said or did, excepting so far as his acts
This incident was only one of many incidents introduced by the plaintiff tending to. show intimidation and interference with the plaintiffs workmen and with men brought to Rut-land by its agents for the purpose of filling the places of the strikers. The testimony in many of the other incidents tended to show that such intimidation and enticement of and interference with the plaintiff’s workmen and men seeking its employment, were done by members of the defendant lodge, its agents and co-conspirators; and much evidence of that class was admitted without objection.
The issuing of plaintiff’s exhibits 4 and 5 were.not shown to have been done directly by the defendant. Witnesses testified to having seen the circulars in the office of the machinists, which was the headquarters of that class of workmen when they were out of employment, and these circulars were sent to the different machinists’ offices throughout the country. They were admitted under defendant’s exception and are:
Plaintiff’s exhibit 4. ' “Rutland, Vt., May 20, 1902.
TROUBLE in RUTLAND.
We have been on strike since May 20th, and we are obliged to continue the fight to the end:
Therefore, This is to apprise all Machinists and Helpers, Metal Workers, Blacksmiths and others that their fellow toilers in Rutland, Vermont, are on a strike against the unreasonable refusal of the Lincoln Iron Works and F. R.
(Typographical Union label, Rutland, Vt.)”
Plaintiff’s exhibit 5.
“Rutland, Vermont, September 1, 1902.
Trouble in Rutland since May 20', 1902.
This is to notify Machinists, Molders, Metal Workers, Blacksmiths, and others, that
The strike is still on
at the F. R. Patch Mfg. Co., and Lincoln Iron Works, and will be kept on until we get a fair adjustment of our demands.
(Typographical Union label, Rutland, Vt.)”
The plaintiff claimed, and introduced testimony tending to show, that money was paid by the defendant and by its individual members to induce men to leave the employment of the plaintiff, during the strike, which continued several months, and to keep' men from' entering its employment, and introduced as a witness Alexander Sanchegrin who testified that he went out with the men on the strike and then went to the E. A. U. Hall in company with Howley, and under the defendant’s exception testified that Howley promised him six dollars a week and his board if he would go- out and that he received fifty cents; that Howley got the money from Page. There was no proof that Page wa§ a member of defendant lodge, nor of any other lodge, nor that he was connected with the strike, excepting that the plaintiff’s testimony tended to show that Page was then in said hall with Howley, and whatever presumption might arise that Page was a member of defendant lodge and a conspirator with the defendant from the failure of the defendant to produce its books, records and list of membership-. It appeared that this hall was not used exclusively by said lodge nor controlled by it, that it belonged to a third party, that this and various associations
The plaintiff’s evidence tended to show that after the strike was on, Walter Newton, who was a member of defendant lodge, and one Pennington, who was a member of the Retail Clerks’ Protective Association and at that time secretary of the Central Trades and Labor Council, interviewed a firm that was engaged in the plumbing business and was. then plumbing a boarding-house which the plaintiff was repairing for the purpose of boarding its workmen therein, and by threats and intimidations tried to induce said firm- not to do such plumbing, and that this was done to- prevent the plaintiff from providing a place for boarding and lodging its workmen and thus prevent it from obtaining them.
The testimony as to Pennington’s acts stands upon the same ground as Newton’s. He went with Newton to visit the plumbers, as before stated, but it was not shown that either went by the procurement- or knowledge of the defendant nor of any other lodge, but for anything that appeared, of their own motion, excepting that Newton was a member of defendant lodge, a member of the strike committee appointed by the defendant and a delegate to the Central Trades and Labor Council, and that Pennington was then a member of and secretary of that Council.
Pennington testified that during the summer of 1902 he was secretary of the Council which was composed of three delegates from each one of the several unions in Rutland and vicinity; that Protection Lodge No. 215 was one of these unions at the time he was secretary, and that Walter Newton was at one time a delegate to the Council. Pennington’s testimony tended to show that the rriatter of the strike was
The plaintiff’s evidence tended to show that Tilly C. Young was a member of the Carpenters’ Union, and until the 1st of Jutly, 1902, its secretary; that Hinés was in the plaintiff’s employment, and was also a member of that union, and
The testimony of Patch as tO' his interview with Young, a member and the secretary of the Carpenters’ Union, was properly admitted for the purpose for which it was offered. The plaintiff had introduced evidence tending to' show a conspiracy with the defendant on the part of the Carpenters’ Union. It is true that neither the defendant nor the Union could be affected by Young’s declarations, which were not in furtherance of the common design, or did not accompany and explain an act then being done by him in such furtherance; but mere words may be an act, as were the shouts of the mob in Lord Gordon’s case, 21 How. St. Tr. 535, and the conversation among conspirators in Lord Stafford’s case, 7 St. Tr. 1218, and in State v. Glidden, 55 Conn. 46, 82. So a letter may be an act, though never sent, as in Hardy’s case, 24 State Trials, 199, 475. But here was a physical act being done by Young which his declarations accompanied and tended to explain, namely, his striking work at the plaintiff’s plant. It is argued that the fact that he then arranged with Patch to come back as soon as his secretaryship expired, and he could legally withdraw from the Union, showed that his leaving w'as not in furtherance of the conspiracy but for his own benefit, and
It appeared that the defendant sent delegates to the Council, and the evidence tended to show that at different times these delegates brought up the subject of the strike in the Council and explained the situation; that the matter was talked over among the different delegates, but that it did not appear
That members of the Plumbers’ Union, of the Central Trades and Tabor Council, and of the Carpenters’ Union, who were claimed to be co-conspirators with the defendaht, visited the store and tried to induce its officers to refuse to sell goods to the plaintiff’s workmen who had refused to strike, and to other workmen who had been employed.
The plaintiff claimed that exhibit 3 tended to show the conspiracy between the defendant and its members, said Council and the Carpenters’ Union and their members, and that the books and records would have shown such conspiracy. Pennington testified that he had noi authority for signing exhibit 3; that there was no action of the Council authorizing him to sign it; that the Council never sanctioned it; that it was presented to him for signature; that he signed it without reading it, and that he thought it was a paper that should be signed. The plaintiff claimed that the books and records would have shown authority from the Council to Pennington to sign said exhibit which reads:
“Notice to Union Men.
Rutland, Vt., Oct. 10, 1902.
To Organized Tabor, Everywhere.
Greeting: The F. R. Patch Mfg. Co. and Tincoln Iron Works are on the unfair list, having been placed there by the General Executive Board of the International Association of Machinists, and also by the International Association of Marble Workers at their convention held in Detroit, Mich., June 23 and 24, 1902. The above named firms are members
Trusting that you will do what you can to help us and extending to you our heartfelt gratitude for anything you may do, we remain,
Fraternally Yours.”
To the above paper were appended, in type writing, the names of six local associations with the names of their respective presidents and secretaries, the defendant’s heading the list, and in like manner the “Central Trades and Labor Council, C. W. Pennington, secretary,” closing with the words; “Typographical Union Label, Rutland, Vt.”
A considerable amount of testimony was introduced by the plaintiff, under the defendant’s exception, tending to show various acts of intimidation by Martin to men who remained in the plaintiff’s employment, and to new men who had been employed, and that he was active in the distribution of exhibit 3. The testimony of Tait, the defendant’s secretary, tended to show that Martin was in Rutland in the summer of 1902 and was employed by, or at least acting for, the union in relation to the strike; that he was helping to keep men, from working at the shops; that he was employed by Capeless and Newton, who were a committee of defendant lodge, and
The rule of law that a person cannot prove his claimed, agency by his own declarations does not apply to this case. The question is whether the plaintiff’s evidence tended to show the conspiracy alleged.
To review the evidence briefly: The defendant was a local protection lodge of the International Association of Machinists, and it may be assumed that it was organized for the protection of the interests of its members who were machinists, a part of whom- were in the plaintiff’s employment.. A strike from the Lincoln Iron Works, a corporation engaged in the same business as the plaintiff’s, was made at the same time and by the same classes of workmen. The matter of the strike-was brought up more than once at the meetings of the Council in the summer of 1902 by delegates from defendant lodge, who-discussed and explained the situation. On May 11 the plaintiff received exhibit 2; on May 20 came the strike, and three hours later the plaintiff received exhibit 1. Both these papers-bore the impress of the seal of the defendant. It is of no importance that it was not a corporation and that the seal was-not a corporate seal. Its impress upon these papers was a circumstance proper to be considered with other evidence in the case tending to show that “The Committee” was a committee of the defendant, and that these papers emanated from it. The ten men who signed the second paper were all members of the lodge. Sheldon, who was one of the ten- signers, procured type written copies of it to be made. That five of
The printed “stickers” were widely circulated in and about Rutland and in New York City, and exhibits 4 and 5, if not exhibit 3, were sent to the different machinists’ lodges through the country for the obvious purpose of preventing .other workmen from entering the plaintiff’s employment while the strike was on.
It must have been common knowledge in Rutland that these great strikes were on, that the strikers were trying to prevent new men from entering the plaintiff’s works, and that these circulars were distributed for that purpose. It is not conceivable that the defendant’s officers could have been ignorant of these proceedings. The name of J. F. Tait, recording secretary, was appended to the circulars under that of C. F. Nourse as the defendant’s president, and the jury might have inferred that' the defendant directly or indirectly promoted the distribution of the circulars.
The evidence relative to the acts of Martin and McDonald tends as remotely as any evidence in the case to show that the defendant was a conspirator in the strike; yet secretary Tait testified that Martin, though not a union man, was employed by a committee and helping t-oi prevent men from coming to work at the shops. The witness said, “not employed by the lodge particularly,” but “by the committee.”
McDonald had been in the plaintiff’s employment until the strike. There was no evidence that he was a member of defendant lodge nor that he was employed by any one to
The testimony as to the doings of the mob on this occasion was received without objection, and this incident was only one of many introduced by the plaintiff tending to show intimidation of, and interference with, the plaintiff’s workmen and men brought to Rutland by its agents for the purpose of filling the places of the strikers.
The testimony as to many of the other incidents referred to tended to show that the acts of intimidation and interference were committed by members of the defendant lodge and its agents and co-conspirators. Since these various incidents were concurrent in point of time, within the meaning of the law, and alike in adaptation to accomplish the general design of the conspiracy, they were all admissible as evidence tending to show that the participators were co-conspirators. The acts and declarations of McDonald at the time show that he understood the purpose of the mob and participated therein; hence the evidence tended to. show that he was a co-conspirator, and there was no error in its admission. The authorities before referred to are full in support of this holding.
The following extract from the opinion in Spies v. People, 122 Ill., 1, 3 Am. St. Rep., 320, is in point:' “Nor is it necessary to prove that the conspiracy originated with the defendants, or that they met during the process of the concoction; for every person entering into a conspiracy or common design already formed is deemed in law a party to all acts done by any of the other parties, before or afterwards, in furtherance of the common design.” 3 Greenl. Ev. § 93.
One to be chargeable need not have been an original contriver of the mischief; for he may become a partaker in it by joining the others while it is being executed. If he actually concurs, no proof is required of an agreement to concur. 2 Bish. New Crim. Law, § 190, 3 Chit. Crim. Law, § 1141, 1143; People v. Mather, 4 Wend. 229.
Where there is a conspiracy to accomplish an unlawful purpose, and the means are not specifically agreed upon or understood, each conspirator becomes responsible for the
“The prosecutor may either prove the conspiracy which renders the acts of the conspirators admissible in evidence, or he may prove the acts of the different persons, and thus prove the conspiracy. Roscoe’s Crim. Ev., 7th Ed., 415.” See also Stewart v. Johnson, 18 N. J. Law, 87. Upon the same principle rest the Connecticut decisions, that any declaration made by one conspirator, pursuant to the common object and' in furtherance of it, is admissible against all of them when the combination is once established. Cowles v. Coe, 21 Conn. 235; Knower v. Clothing Co., 57 Id. 202; State v. Thompson, 69 Id. 720.
As we hold that there was some evidence tending to show the conspiracy alleged between the defendant and the Carpenters’ Union, the testimony in relation to the action of Sanchegrin was admissible, which was in substance that he went out under promises from Howley who was a member of defendant lodge; that he went to the hall used by the defendant as a lodge room, and that he was there paid fifty cents by Howley which the latter received from Page.
The same reason applies to the testimony of Pennington in respect to his conversation with Loveland, also fi> the testimony of Patch as to his conversation with Young and Hines.
The defendant contends that all the evidence tending to ■show boycotting was inadmissible for the reason that the plaintiff, could not recover damages for injuries thereby received by third persons. But we understand that the purpose ■of this evidence was to show that the plaintiff was directly injured to the extent to which the boycotting- was carried into effect; for instance, if plumbers were not permitted to finish their work upon the boarding-house, the building could not be used for lodging and boarding the plaintiff’s workmen; and
As all the testimony received under the defendant’s 'exception, in our judgment, had some tendency to show the conspiracy claimed and the results of it and efforts made by the conspirators to make the strike effectual by preventing the plaintiff from employing other workmen, it cannot be insisted that there was error in respect to the order in the admission of evidence, for as was said in Jenne v. Joslyn, 41 Vt. 478, in the end all the evidence became pertinent to the issue* Spies v. People. The defendant’s exceptions are not sustained.
' II. On the first day of the trial counsel for the plaintiff gave the counsel for the defendant a written notice requiring the defendant to' produce its charter, its constitution and by-laws, its books of records containing the rq>orts of meetings and records of resolutions and votes, the appointment of committees, a list of the members of defendant lodge from May 20, 1902, to the commencement of the suit, and a list of its charter members and the record book. On the following day the plaintiff’s counsel stated in open court that he had served such notice upon defendant’s counsel, and that the books and papers called for had not been produced. The defendant’s counsel then said that he had no authority to produce any such books and papers, that he knew nothing about them, and that the defendant was a secret organization. The court admonished him that notice to him was notice to defendant. A subpoena duces tecum was also served upon John P. Tait, the defendant’s recording secretary, who had charge of the books and records of the defendant, to bring into court all the records, record-books, paper accounts, charters, resolutions, votes and roll-books of the defendant. Tait appeared in court but brought with him none of the books, records or papers called
Similar efforts were made to obtain from T. C. Young, the recording secretary of Local No. 950 of the Brotherhood of Carpenters and Joiners, the production in court of all the books and records of resolutions, votes, appointment of committees and records of proceedings of that association, but Young produced only the record book of proceedings since January 1, 1903. Mr. Blue, who preceded Young as 'secretary, and in whose custody Young testified the books and records were left, was ordered to bring such books and records intoi court, but he testified that Young was the secretary and had the custody of the books and records of the Carpenters’ Union. Young was sent in the custody of an officer to the place where he said the books were, but he returned and said he had brought with him all the books and papers he had found in the drawer. He produced the record book from January to July, 1902, and plaintiffs counsel found among the papers a communication from the defendant dated May 31, 1902, announcing the strike and requesting the co-operation and assistance of the Carpenters’ Union. This is plaintiff’s exhibit 6. Young and Blue were afterwards directed to make further search, but reported that they were unsuccessful in finding the books and records demanded. ,
A like effort was made to have the books of record of the Central Trades and Labor Council produced. Pennington testified that the Council was composed of three delegates from
III. The court complied with twenty of the defendant’s twenty-five requests, and exceptions are insisted upon here only to the refusal to charge in accordance with two of the remaining five, which were:
1. “That the plaintiff cannot recover for any expense incurred by it in procuring other workmen to take the position of the men who left its service on May 20, 1902.”
2. “That any threat made by the defendant or anyone associated with it to boycott any boarding-house keeper who- entertained or any merchant who supplied with the necessities of life workmen in the employ of the plaintiff, if made directly and exclusively to such boarding-house keeper or merchant, was not an interference with or invasion of the rights of the plaintiff, and for such threats the plaintiff cannot recover.”
These requests were not sound in law. As to the first, the correct rule was given to the jury, — that soi far as the plaintiff and the men whom it sought to employ to take the places of the strikers were left to their free choice, the plaintiff could not recover though it suffered damage; but the court said that the request ignored one of the vital questions in the case; — “Whether the plaintiff was hindered or impeded in procuring men to take the places of the strikers, and was so hindered and impeded by the defendant lodge or by those
As to the other request the court properly remarked that it “could not say that it is not an invasion1 of the rights of a free man for others acting in combination to employ threats and intimidation (to use the language of the request); for one man not to supply him with one necessity of life, and another man not to supply him with another necessity of life. The court cannot lay down' that doctrine.”
IV. The defendant excepted to the compliance with the plaintiff’s ioth request to charge, which reads:
“If the jury find the conspiracy charged in the declaration, and that other labor unions in the conspiracy suppressed, concealed or destroyed their records h> prevent their being introduced in evidence, the same presumption of guilt may be drawn from such suppression of their records, and the jury may find the facts charged in the declaration established by the presumption arising from the suppression of the records of a co-conspirator.” The court evidently used the word “damages” inadvertently, for the word “facts” was used in the request, which was given to the jury verbatim, with the exception of the change of these words and the omission of the words “of guilt” which the court said should be omitted. It is apparent that the court intended to comply literally with the request, and the jury could not have understood that if they made a certain presumption they were to1 find the damages
The ioth request and instruction were correct. In 3 Greenl. Ev. § 94 the rule is laid down that: “The principle on which the acts and declarations of other conspirators, and acts done at different times, are admitted in evidence against the persons prosecuted, is, that, by the act of conspiring together, the conspirators have jointly assumed to themselves, as a body, the attribute of individuality, so far as 'regards the prosecution of the common design; thus rendering whatever is done or said by any one in furtherance of that design, a part of the res gestae, and therefore the act of all.” See State v. Thibeau, 30 Vt. 100; 2 Russ, on Cr., Metc, ed., 572.
The fact of a common design, of an individuality of purpose existing between the different associations, provided the conspiracy were established, made the records of the other associations the records of the defendant. • As the act of one co-conspirator was the act of all, so the records of one association were the records of all so far as they evidenced the unlawful combination. Indeed, no claim is made in the defendant’s brief or argument that the other associations stood differently from it in respect to the non-production of their books and papers.
V. The plaintiff’s evidence had tended to show that the defendant, having control of the books and papers called for by the plaintiff and ordered by the court to be produced, had refused to produce them in defiance of the order; that the. reasons given for their non-production were frivolous and derisive; that the defendant and its officers stood before the court in the attitude of men who had spoliated or suppressed
In charging upon this subject the court stated without, objection that it had been' shown that the defendant “had books, books of minutes,” and that was treated as a fact in the case. The court, however, did not assume as' a fact that the defendant might have produced the books, records etc., called for, but submitted that question to the jury. This language was used in the charge: “But you can easily see that if books are destroyed; if books are hidden; if books are carried away, the power of the court is limited in that respect; * * * But the arm of the law is long enough and strong enough to reach cases of that sort, and when the jury feel in a civil case, when they are satisfied by a fair balance of proof, fair balance of probabilities, that a party has suppressed books, has hidden books, has kept books away that have been called for and which it has had notice to produce, then the law says the jury may presume from the absence of those books and papers against the party called upon to produce them, and not producing them, and in favor of the other party.”' Further on the court said: “If you find that the defendant, after being notified to' produce books and papers, has failed to do so, you have a right to presume that it is because those books and papers would malee against its claim and in favor of the claim of the plaintiff” * * *. “You can give to that presumption such weight as you, think it ought to- have.. You may find or presume that the claim of the plaintiff is true and that the claim of the defendant is false, is untrue, if you find that the defendant has suppressed evidence which has been duly called for. In the view that the court takes of the matter, the weight of it rests with you.” To these instructions the defendant excepted. (We think that, in the connection in which
The defendant contends that this was a literal application of the doctrine of omnia praesumuntur in odium spoliatoris; that the remarks of the court above quoted amounted to an instruction that, if the jury found that the books had been destroyed or suppressed, they might presume, without other proof of the fact, that they contained evidence of the conspiracy. The jury could not have so- understood it, for immediately after the above instructions were given the court explained what the claims of the _ parties were, — 'the plaintiff’s, that there had been coercion and intimidation resulting in damages, — the defendant’s, that it had only advised but made no attempt to- interfere with the free choice and judgment of workmen. The court then remarked that the jury knew what the claims and evidence were on both sides and that he would not undertake to review the evidence in full. After thus stating the question to' the jury, he told them that they must “consider what had been produced in evidence; that they knew the history of the case.” He called attention to the fact that the defendant had not produced the books of the association after repeated notice to produce them — after it was shown that it had them; also to the “stickers” and circulars, and submitted to the jury to find whether they were signed by authority of the associations, whether the different associations were associated together, and, if these facts were found, whether these “stickers” and circulars fairly represented the ■circumstances and situation at Rutland. In calling- attention to different parts of the evidence the court repeatedly said to the jury: “It is for you to say.” In complying-with several ■of the defendant’s requests, he charged, as before stated, that to entitle the plaintiff to recover, he must prove that he was
Taken together this fairly shows that the court charged the jury that if they found the defendant had suppressed the books and papers, they might find or presume the plaintiff’s claim upon the evidence was true, and that the defendant’s claim was false. It cannot be fairly said that the jury must have understood it to mean otherwise. If this, is the fair meaning of the charge, and we think it is, the jury are presumed to have so understood it, and there was no error.
The rule of' law governing this question was substantially complied with, which is, that the presumption arising from the fact of spoliation of evidence does not relieve the other party from introducing evidence tending affirmatively to prove his case SO' far as he has the burden. It cannot supersede the necessity of other evidence. The presumption is regarded as merely matter of inference in weighing the effect of evidence in its nature applicable to the question in dispute. Arbuckle v. Templeton, 65 Vt. 205, 25 Atl. 1095.
VI. After verdict and before judgment the defendant filed a motion that the verdict be set aside and a new trial granted by reason of the misconduct of a juror during the trial. Testimony was taken on both sides and the motion was fully heard by the trial court upon the testimony submitted and the motion was denied. The court filed no1 statement of facts, and, therefore, under the decision in Mullin v. Rowell, 56 Vt. 301, the question is not before this court.
Judgment affirmed.
