26 Del. 379 | Del. Super. Ct. | 1912
charging the jury:
Gentlemen of the jury:—This is an action of trespass upon the case, instituted by the plaintiff to recover from the defendant damages for injuries to his person, alleged by him to have been sustained as a consequence of being unlawfully ejected from the property of the defendant by one of the defendant’s servants.
It is admitted that on the fourteenth day of December, A. D. 1910, the defendant was the proprietress of the Farmers’ Hotel, situate in the City of Wilmington and State of Delaware, which she conducted as an inn or tavern under a license to sell and dispense intoxicating liquors, and that upon that date the plaintiff was ejected from the barroom of the defendant by one of her servants acting within the scope of the authority conferred upon him as her bartender.
The plaintiff charges that he was upon the premises of the defendant by her permission and at her invitation, and while there conducting himself in a lawful and peaceable manner was violently; wantonly, forcibly, wilfully, and maliciously pushed and ejected therefrom by the defendant’s, servant, with a force and violence far in excess of the necessity of the situation or of his condition, causing his hip to be broken, and thereby causing him to sustain injuries from which he suffered great bodily pain, an impairment of his capacity to earn a living and was compelled to lay out and expend diverse sums of money in his endeavor to be cured and healed.
The defendant has filed pleas of the staute of limitations, not guilty and son assault demesne. Upon the former two issue was joined, while to the latter the plaintiff filed a replication de injuria.
The substance of the defense, as stated by this technical pleading, is, first, that the defendant, by the acts and conduct of her servant, did not commit the assault as declared by the plaintiff or inflict the injury of which he complains; and, second, that the defendant’s servant exercised a lawful right and performed'a duty in removing the plaintiff from the premises of his employer, that in doing this he employed only such means as were lawful and only such force as was necessary, and that in the progress of his lawful acts the plaintiff actually committed upon him the
[1] In support of these conflicting contentions there is much conflicting testimony, of which, under our system of jurisprudence, you are the sole and exclusive judges and with respect to which the court can enter into no discussion. We will therefore state to you the law, as it bears upon the subject of the controversy.
[2, 3] A licensed inn or tavern is a public place to which the public has a right to go, and going has a right to remain as long as is consistent with the lawful purposes with which the right is employed. If a person enters and is received in an inn or tavern as a gtiest, he has a right to remain there a reasonable time, if he behaves himself peaceably and properly and pays the amount charged for his entertainment (State v. Whitby, 5 Harr. 494); if he enters the barroom of an inn or tavern for the purpose of drink or refreshment, being in a physical condition to receive the same and conducting himself in an orderly and peaceable manner, he has a right to enter the barroom and remain long enough to satisfy the lawful purpose for which he entered. He may, by his conduct convert neither place into a place - different in character from that for which it was intended by its license., He cannot make of the barroom a loafing place or a place for the display of his temper, appetites or passions. Therefore, when a person enters a barroom wrongfully, that is, with force and disorder in the first instance, or returns thereto in a disorderly manner after having but shortly before been requested to leave or been lawfully expelled, he may be put out in a proper manner, or having entered peaceably and rightfully by virtue of the license extended to him as one of the public, and he thereafter becomes profane or disorderly, and if, upon request he refuses to leave, he forfeits his right to remain for any purpose and becomes a trespasser, and like any trespasser may be put out by resort to so much force as is necessary. State v. Whitby, 5 Harr. 495; McDermott v. Kennedy, 1 Harr. 143; Watson v. Hastings, 1 Penn. 47, 39 Atl. 587.
When a person for such reasons is in such a manner ejected from a tavern, and injury results to him, the law considers the injury to be the result of his own misconduct rather than the
[4] If a person, in being lawfully ejected from a tavern, resists, so much additional force may be employed as may be necessary to overcome the resistance, and if the person being ejected turns his resistance into an attack, he becomes the assailant and the one so attacked may thereafter defend himself by the use of sufficient force to repel the attack and protect himself from injury and bodily harm; and if, in the exercise of this right, he does not resort to force greater than is required to protect himself, and injury results to the person thus become the assailant, the law affords him no remedy and withholds from him a right of recovery. 1
If you should conclude from the evidence that the alleged personal injuries of the plaintiff were not occasioned by an unlawful assault of the defendant’s servant, but were occasioned either by the act of the defendant’s servant in a proper defense of himself, as a result of the plaintiff’s resistance to a proper degree of force-applied in lawfully expelling him from the room, or otherwise by the carelessness or misadventure of the plaintiff himself, your verdict should be for the defendant.
[5] In order to warrant the forcible removal of a person from a barroom by the proprietor or his servant, there must first be some lawful reason or excuse to prompt and justify the removal. Being present by invitation or permission extended to the public by reason of the character of the place for which a license is granted, a person must have done something or threatened to do» something by which the invitation or permission is withdrawn. and by his unlawful presence, he becomes a trespasser. If he-becomes disorderly, or threatens a breach of the peace, he is in= law a trespasser and the proprietor or his servant may lawfully put him out. But in removing a disorderly person from a tavern, being a public place, it is the duty of the proprietor or his servant first to order the person to go out, and, if he refuses, he may then remove him, but in doing so he may use only such force as is necessary for the purpose.
Therefore if you find that the plaintiff was forcibly removed.
[6] In considering the conduct of the plaintiff and of the defendant’s servant, the testimony extends to acts and words of each preceding the act of ejecting the plaintiff, which testimony should be considered by you in determining whether the plaintiff was properly requested to get out and warned to stay out before he was finally put out. If you find the plaintiff’s conduct was such, ■as to justify his removal, and that he was forcibly ejected without •first being requested to leave, or without such previous requests having a timely relation to the final act of putting him out, your verdict should be for the plaintiff.
• [7] If you find the plaintiff’s conduct was such as to make his removal lawful, and after being requested to leave he refused and resisted, and he was violently or maliciously ejected from the room by the defendant’s servant with a force greater than was necessary to accomplish his removal, regard being had to the situation and to his condition of soberness or intoxication, or if in the midst of being ejected, he promised and made an effort to go peaceably, and promised to cease and did in fact cease all resistance, and force was thereafter continued in removing him, your •verdict should be for the plaintiff.
[8] In this case, as in all civil cases, the law requires that the plaintiff should establish his case by a preponderance, that is, "•by the greater weight of the testimony, and unless he has done 4hat to your satisfaction, he cannot have your verdict.
If you find from such a preponderance of the evidence that the defendant’s servant committed an assault or trespass upon the plaintiff in any one of the unlawful ways indicated to you, you should find a verdict of damages for the plaintiff.
[9, 10] If you find for the plaintiff, you may find for him in such a sum as will reasonably compensate him for the injuries which alone may be found to have been inflicted by the defendant’s servant, and not for any aggravation thereof that may be found to have been made by the plaintiff himself, having regard
[11] We will add, to what we have already said to you, that there is one rule which we give to you in aid of the solution of the problems of these cases, which is that when you find the testimony to be conflicting, as it is in this case, it is your duty first to reconcile it if you can. If you cannot reconcile it, you should then accept that which in your judgment is most worthy of credit and reject that which is least worthy of credit, having regard to the intelligence, the bias, the interest of the witnesses and their opportunity to have seen and understood and remembered that to which they have here testified.
Verdict for plaintiff.
(Motion for new trial made and refused.)
