Porter v. Ritch, 70 Conn. 235

Porter v. Ritch

70 Conn. 235 | Conn. | 1898

Andrews, C. J.

There is quite a long list of reasons of appeal, but it will not be necessary to consider them in detail. They are only an expansion of the claims made by the plaintiff at the trial, and these may all be disposed of by considering a few general propositions.

If the Act of 1889 was constitutional, especially that part of it which is relied on to support the order made by the judge of probate in Stamford on the 18th day of December, 1893, and if the law is so that the proceeding was pending, at the time that order was made, and the order was not void on its face, and if there was no error in the rulings on the evidence, or if the causes of action were discharged by the “ family agreement,” then there is no material error on which the appellant is entitled to have a new trial. Everything else is included in the finding of facts.

At its January session, 1889, the legislature passed “An *252Act concerning Insane Persons ’’(Public Acts of 1889, p. 88), which enacted that “any judge of a probate court, within his probate district, shall have power to commit any insane person, residing in said district to an asylum in this State, in the manner hereinafter provided;” and that “except when otherwise specially provided by law, no person shall be committed or admitted to an asylum without an order signed by a judge of probate, as hereinafter provided.” The Act then proceeded to details, and enacted that “ whenever any person in this State shall be insane, or shall be supposed to be insane, any person may make complaint in writing to any judge of probate, within whose district the person complained of shall reside, alleging that such person is insane and is a fit subject to be confined in an asylum, and when any insane person, who ought to be confined, shall go at large in any town, any person may, and the selectmen thereof shall, make a like complaint to the judge of probate, within whose district such town is included. After receiving said complaint, the judge of probate to whom it is made shall forthwith appoint a time, not later than ten days after the receipt of said complaint, and a place within said district, for a hearing upon said complaint, and shall cause reasonable notice thereof to be given,” etc. The Act also specifies many other details to be observed by the judge of probate in respect to such hearing: for adjournments, for the certificate of physicians, and what shall be done in case the person complained of is found to be insane; and in its sixth section says: “ Pending the proceedings for a hearing and examination, said judge may make and enforce such reasonable orders for the care and custody of the person complained of, as said judge shall deem suitable and proper.”

The complaint made to the judge of probate for the district of Stamford concerning the plaintiff, was made under this legislation and the proceedings were pursuant to its provisions. There is a general claim by the plaintiff’s comisel that the whole Act is unconstitutional. It is, however, so obviously within the power of the legislature to make provisions for insane persons, and for their commitment to and *253confinement in an asylum for treatment and care, that we suppose counsel intend to attack this Act only so far as the provision respecting the care and custody of the person complained of, pending the proceedings, is an essential feature of it. It is strenuously insisted that so much of the Act as is relied on to justify the order given to Bolster and Schock, is unconstitutional, for the reason that it may, as in this case it is claimed that it did, deprive a person of his liberty without due course of law. That constitutional provision is invoked, which says that no person shall be deprived of his life, his liberty or his property, without due course of law. Nothing can well be dearer to the law than the right of each person to his life, his liberty and his property. For more than six hundred years the law has been zealous and astute to protect these rights. The words of Magna Charta, which declare that every person shall be protected in the enjoyment of his life, his liberty and his property, except as they might be declared to be forfeited by the judgment of his peers or the law of the land, furnish the rule. In some form of words this principle is now found in every one of the American constitutions. No one does or can deny its binding force. But constitutional provisions, however often repeated, do not give to any one an absolute estate in even these high privileges, which he can enjoy to the exclusion of others. These privileges must be enjoyed with just limitations,—with such limitations as are necessary to make their enjoyment by each consistent with the like enjoyment by all. The right of all is superior to the right of any one. These limitations are not deprivations of the right. They are regulations; so that no one person can insist on a right to the enjoyment of any one of these privileges, to the exclusion or the infringement of the right of any other person to the like enjoyment. The taking of life itself by a private person and without warrant may sometimes be justified. One may lawfully kill an assailant if necessary to save his own life or the life of his wife or children. Morris v. Platt, 32 Conn. 75. A burglar who in the night season is attempting to break into a dwelling, may be killed if his attempt can be frustrated in no *254other way. A husband or father who finds one attempting to commit rape on his wife or daughter may lawfully kill him to prevent the crime. 4 Bla. Comm. 179, 180. Examples of this sort of regulation are more often found in the laws and ordinances which apply to property, than elsewhere. Among them are the very many statutes and regulations which concern the use of property. The constitutional provision just stated has never been regarded as incompatible with the principle, equally vital—being essential to the permanent safety of society—that all property is held subject to the power of the State to regulate the use by the owner, when that use is found to be injurious to the community. Mugler v. Kansas, 123 U. S. 623, 665; Beer Company v. Massachusetts, 97 id. 25, 32 ; Commonwealth v. Alger, 7 Cush. 53. There are many cases in which the rights to the use of property must be exercised subservient to the public welfare. The maxim of the law is that a private mischief is to be endured rather than a public inconvenience. On this ground rest the rights of public necessity. Thus, if a common highway be out of repair, a passenger may lawfully go through an adjoining private enclosure. So it is lawful to raze houses to the ground to prevent the spreading of a conflagration, without being responsible in trespass or otherwise. Russell v. Mayor, 2 Denio, 461. There are many other like conditions. See 12 Coke, 13, 63; Maleverer v. Spinke, 1 Dyer, 36 b; Vin. Abr., Title “ Necessity”; 2 Kent’s Comm. 338; Governor v. Meredith, 4 Term Rep. 794, 797; Respublica v. Spar hawk, 1 Dal. 357, 363; Vanderbilt v. Adams, 7 Cowen, 349; Cooley on Const. Lim. 739. So, too, public nuisances may be abated by anyone who is injured thereby. Van Wormer v. Mayor, 15 Wend. 262; Wood, Nuis. 768. To the same rule the vindication of our law that the prop-, erty of a defendant in a civil suit may be attached on mesne process and held till final judgment, must be referred. The various rules and statutes authorizing these limitations to the rights of property owners have always been regarded as police regulations, although they curtail the owner’s use in some degree, and not unconstitutionally.

*255The right to personal liberty ought, perhaps, to be regarded as on a higher plane than the right of property; but the constitutional protection to the one is precisely the same as to the other. The right to enjoy liberty is always limited by the duty which requires every one to use his liberty in such a way as not to be detrimental to the public. There are many cases in which a man may be restrained of his liberty by any one, and without warrant. “It is justifiable if a man hold another to restrain him from mischief.” Com. Dig., “ Battery ” A. In Glever v. Hynde, 1 Mod. Rep. 168, a private person without a warrant removed one who was disturbing a funeral service. His action was justified. In Hall v. Flanner, 1 Levinz, 196, the church warden removed the hat from the head of one who refused to uncover his head during divine service hi a church on a Sunday. This was held to be justifiable. In Handcock v. Baker, 2 B. & P. 260, the defendant broke and entered into the house of the plaintiff to prevent him from murdering his wife. This was justified. A person dwelling in a house infected by any contagious disease may be required by a constable to keep within his house. And if he disregard such command it may be enforced by a watchman; and if any hurt ensue by such enforcement the watchmen are thereby indemnified. 4 Bla. Comm. 161. The health officer of a city may confine one who has been exposed to the small pox, to prevent the spread of that disease. Harrison v. Mayor, 1 Gill, 264. “ A private person may, without an express warrant, confine a person disordered in his mind, who seems disposed to do mischief to himself, or any other person.” Bac. Abr., “ Trespass ” D, *578. “It is universally conceded that every man may for his own protection restrain the violence of a lunatic; and any person may, at least temporarily, place any lunatic under personal restraint whose going at large is dangerous to himself, or others.” Tiedeman on Police Powers, 108. Clearly this may be done as preliminary to the institution of judicial proceedings by which a judgment for a permanent confinement may be obtained. 6 South. L. Rev. N. S. 568; 3 Amer. Law Rev. 193; Colby v. Jackson, 12 N. H. 526; *256Davis v. Merrill, 47 id. 208; Keleher v. Putnam, 60 id. 30; Williams v. Williams, 4 Thomp. & C. (N. Y.) 251; Look v. Dean, 108 Mass. 116, 120; Doyle, Petitioner, 16 R. I. 537, 538; Law. Ri. & Rem., § 1066; 11 Amer. & Eng. Ency. of Law, 112; Cooley on Torts, 179; Commonwealth ex rel. Draper v. Kirkbride, 3 Brew. (Pa.) 393; Van Deusen v. Newcomer, 40 Mich. 90.

“ The right to restrain an insane person of his liberty, is found in that great law of humanity, which makes it necessary to confine those whose going at large would be dangerous to themselves or others. In the delirium of fever, or in the case of a person seized with a fit, unless this was the law, no one could be restrained against his will. And the necessity which creates the law, creates the limitation of the law. In the case of an application to have a guardian appointed over the person and estate of an insane person, under the statute, some time must necessarily elapse before the appointment can be made, and during that time restraint may be necessary. If there is no right to exercise that restraint for a fortnight, there is no right to exercise it for an hour. And if a man may be restrained, in his own home, he may be restrained in a suitable asylum, under the same limitations and rules. Private institutions for the insane have been in use, and sanctioned by the courts; not established by any positive law, but by the great law of necessity and humanity. Their existence was known and acknowledged at the time the Constitution was adopted. The provisions of the Constitution in relation to this subject must be taken with such limitations, and must bear such construction, as arise out of the circumstances of the case.” Chief Justice Shaw, in the case of In re Josiah Oakes, 8 Law Reporter, 122, 124.

Limitations to the use of property, or to the personal liberty of another, in the different classes of cases to which the instances we have cited may be referred, have always been holden not to infringe the constitutional provision now invoked. In none of them is there any deprivation of the right, but only its just regulation. These limitations serve to pre*257vent such a use by one of his property, or of his liberty, as takes-away from others their equal right to the use of their own. One who is prevented from injuring another cannot justly assert that he has himself been deprived of any right. An insane person whose going at large is dangerous to others, or to himself, and who is restrained, cannot maintain that he has been deprived of any right, or that he has suffered any injury. In most of the cases cited, the act placing a restriction upon the liberty of another was by a private person, and the act was held to be justified. But a private person can act only in an emergency, and then only at his peril: the peril of being unable to prove the existence of the emergency which is his justification. Restrictive conditions of this kind upon personal liberty, or upon the use of property, are sometimes absolutely necessary to the safety of all. A wise administration of government does not leave it to private persons to decide when these restrictions shall be exercised. Private persons may not be willing to take the hazard. And so statutes are passed which directly name or authorize a municipal board to appoint some one to judge of the emergency and direct the performance of those acts which any individual might do at his peril without any statute. Such an one is the agent of the law and incurs no personal liability. Statutes of this kind exist in many States and have been upheld, so far as we know, without exception. Raymond v. Fish, 51 Conn. 80; Dunham v. New Britain, 55 id. 378; Russell v. Mayor, 2 Denio, 461; Van Wormer v. Mayor, 15 Wend. 262; Coe v. Schultz, 47 Barb. 64; Taunton v. Taylor, 116 Mass. 254; Train v. Boston Disinfecting Co., 144 id. 523; Ex parte Shrader, 33 Cal. 279; Harrison v. Mayor, 1 Gill, 264; Cooley, Const. Lim. 720, 721.

That part of the sixth section of the Act of 1889 under which the judge of probate acted, is a statute of this kind. It named the judge of probate in each district as the agent of the law, to decide whether such conditions existed as made it necessary to confine a person supposed to be insane, for a temporary period. It does not violate any constitu*258tional provision. It is clearly within the police power of the State.

The statute authorizes the judge to mate reasonable orders for the custody of the person complained of, “ pending the proceedings for a hearing and examination.” If we should assume that this language did not authorize the order made on the 18th of December, upon the mere presentation of the complaint, it clearly did authorize the order as modified and confirmed on the 22d of that month, after a full hearing of all parties; the action of the judge upon the hearing was, at least, equivalent, so far as concerns the defendants Bolster and Schock, to the order of that day. We might, therefore, deem it immaterial to pass upon the validity of the order when first issued; not because it could only affect the claim for damages for the unlawful custody from the 18th to the 21st, but because. the statute under which it arises has since been altered, and the claim for damages, if valid, has been discharged by the family agreement.

It is further claimed that the order to Bolster and Schock was void, for the reason that no proceeding for a hearing was pending at the time it was made. The “ proceeding ” was the application to the Court of Probate to have Mr. Porter declared insane and a fit person to be confined in some suitable asylum. This application was made to the court on the 18th day of December, 1893. With this application there was also presented to the court the affidavit of Dr. Geib, that in his opinion Mr. Porter was insane and liable at any time to do injury to himself or others. The Court of Probate thereupon made an order fixing the time for a hearing on the application, together with an order of notice to be given to Mr. Porter; and immediately thereafter, and before the same was served on Mr. Porter, issued the said order to Bolster and Schock. It appears, that Bolster and Schock did not attempt to enter upon their duties under the said order to them, until after service of the said application and order of notice had. been made on Mr. Porter; so that the “proceeding for a hearing” was pending at all times while they were exercising any care or control *259of the plaintiff. But the argument is that the said order for care and control was void, for the reason that the proceeding was not pending at the moment that order was made-; service on Mr. Porter not then having been made. The argument depends on the case of Jencks v. Phelps, 4 Conn. 149, and the several cases in later reports which follow that one: It was held in that case that an “ action” was not commenced till service had been made on the defendant. It was said by Chief Justice Marshall in Cohens v. Virginia, 6 Wheat. 264, 407, that an action or suit is the prosecution of some demand in a court of justice. An “ action,” then, requires two parties: one who prosecutes the demand, and the other against whom the demand is prosecuted, and something sought to be obtained by the former of the latter. In this sense it is no more than just that an action shall not be deemed to be commenced so as to affect the defendant, until service has been made upon him. This is what was done in Jencks v. Phelps. It seems to us that the proceeding before the Court of Probate in the district of Stamford on the 18th day of December, 1898, was not an action in the sense in which that word was there used, and that the rule of Jencks v. Phelps does not apply. There were no parties ; there was no demand; nothing sought to be recovered by one against another. It is obvious that the definition of an action given by Chief Justice Marshall does not include, and was not intended to include, proceedings or actions in rem, nor proceedings in the nature of an inquest of office, and other like proceedings. By the said Act of 1889 the judge of probate was made an agent of the law to decide whether or not a person complained of was insane and ought to be committed to an asylum. The judge was to act on the complaint in writing of any person; but the person complaining did not thereby become a party to the proceeding. The statute requires the judge of probate to give notice of the time and place of hearing to the person complaining, as much as it does to the party complained of. At no time in the progress of the inquiry is there an “ action ” pending in the court, nor are there any “ parties,” in the sense that these words are *260used in the case of Jencks v. Phelps. The proceeding was the inquiry by the court as to the sanity or insanity of the person complained of. It was an inquest of insanity. It was in the nature of a police regulation for the care and restraint of a person insane, or supposed to be insane. The proceeding was commenced when the court received the written complaint. So far as the Court of Probate was concerned, the proceeding was then pending. Any proceeding once commenced in any court in the regular way is pending in the court until it is in some way terminated. Webster’s Diet. Until it is terminated, the proceeding is in suspense, it is depending. Wentworth v. Farmington, 48 N. H. 207; Littlefield v. Delaware & H. C. Co., 3 Cliff. 371. Our own case of Huntington v. McMahon, 48 Conn. 174, shows clearly what the term “ pending ” means when applied to a court. Complaint had been made to a justice of the peace in the town of Winchester, for the condemnation of certain liquors. The liquors had been seized, notice was given, and a hearing was had before the justice, at which certain parties appeared who claimed to be the owners of the liquors. The justice condemned the liquors to be destroyed. The owners took an appeal to the District Court, and the liquors were committed to the keeping of a person named by the justice. The next day, or within a day or two, the owners brought replevin for the liquors and took them out of the possession of the person so named as the keeper. The case cited was an application to the said District Court by the State’s Attorney, that all the persons concerned in the action for replevin be punished for contempt of that court. On the hearing of the contempt proceedings, one claim made by the parties was that there could-be no contempt of the District Court, for the reason that the appeal was not pending in that court at the time the replevin was served. This court held that the appeal was pending in the District Court as soon as the appeal was regularly taken from and allowed by the justice court, although it was long before the return day to the District Court, and although it appeared that the appeal papers had not been filed with the clerk of that court, and that they had not even *261been made out by tbe justice; and that the bringing and serving of replevin was a contempt of the District Court. We are of the opinion that the proceeding for a hearing was pending at the time the order to Bolster and Schock was issued.

The plaintiff argues that the order given by the judge of probate to Bolster and Schock was void on its face, and cites largely from authorities to sustain his claims. We are not able to agree with the plaintiff. It seems to us that he misjudges the character of that order. It is not a judgment. It is a temporary order, provisional, issued only as a precaution to provide against an emergency deemed liable to arise; an order in its nature interlocutory, rather than final. It is a part of the procedure and does not enter into the judgment or decree. It is not an adjudication. It is true that this order does not recite the affidavit of Dr. Geib, nor does it recite the fact that proceedings for a hearing as to the sanity of Mr. Porter were then pending. But the Superior Court could not shut from its eyes, nor can this court, the fact, which the record of the Probate Court discloses, that that court had that affidavit before it at the time this order was issued, and acted on it; nor that the proceedings for the hearing were at that time actually pending. To be sure, the order committed the plaintiff to the care and custody of the persons named. But it was not an order of commitment in execution, and therefore was not to be construed with the same strictness as are final orders. The King v. Gourlay, 7 Barn. & Cress. 669. It was not void. In the case of Van Wormer v. Mayor, 15 Wend. 262, an order was made by the board of health of the city of Albany declaring certain premises to be a nuisance and ordering the same to be abated, because of the Asiatic cholera then prevailing in the city; and thereupon the mayor pulled the house down. The order was sustained, although it did not appear that it had ever been reduced to writing, or recorded, except by way of recital in an ordinance by the board.

During the trial the plaintiff offered evidence of certain acts done by one Thoms, on the ground that Thoms had *262been deputed by Bolster to do those acts. The defendant objected to this evidence, for the reason that the complaint did not charge the defendants with doing anything by their agent. The court sustained the objection. This ruling was in accordance with the rules established under the Practice Act. Practice Book, p. 14, Rule III, § 1.

The Rev. Mr. Scoville testified that the plaintiff, within a year next before he was placed in custody, read a paper on John Calvin before a literary club in the city of Stamford, and that the paper “ was considered by the members of the club as one of the strongest papers they had had.” The defendants asked that this evidence be stricken out; and the court so ordered. We think the evidence was rightly stricken out. It was hearsay.

Mr. Merritt testified concerning his action in making the complaint to the Court of Probate, and in reply to a question by Mr. Fessenden, who was his counsel in this action, said: “ I laid the facts before you, as my counsel, and before Dr. Greib, at your suggestion, as a competent medical man, and as the family physician. Since that time I have done absolutely nothing except as you directed me. I have been a mere instrument since that. In fact, I was a mere instrument before.” Mr. Fessenden then asked this question : “ Did you, in any way, directly or indirectly, instruct me as to the course of procedure, or any step I have taken in it, or as to any advice of counsel I have given in the matter ? ” The plaintiff objected to this question, but the court admitted it, and the witness answered: “I never did.” This evidence was admissible. As Mr. Merritt was charged with acting maliciously in making this complaint to the Court of Probate, he had the right to show that he acted on the advice of counsel.

Counsel for the plaintiff asked of an expert witness, one Dr. Cowles, a hypothetical question. It was conceded, and the fact was so, that it involved assumptions concerning which no evidence whatever had been offered. The court excluded the question, for the reason that a foundation for it had not been laid; and, upon the offer of counsel to sub*263sequently present such, evidence, decided not to admit the question until the basis for it had been laid. This ruling was no more than an exercise by the court of its discretion as to the order in which evidence should be put in. It is not a ground of error.

One part of the defendants’ answer is a discharge of all the causes of action alleged in the complaint, by the agreement of the parties. This defense sets up the agreement called the “family agreement.” After stating the purpose for which that agreement was entered into, its execution and delivery, and setting it forth in full as a part of the defense, by making it an exhibit, and alleging that the defendants had fully kept and performed all their part of said agreement, this defense concludes in this way: “ And the defendants say, upon the facts aforesaid, that by said agreements and the proceedings thereunder, and by the performance by the defendants of the provisions and conditions thereof on their part to be performed, and by said acts of the defendants, the subject-matter of the present suit, and the plaintiff’s claims or alleged rights of action described in plaintiff’s complaint, and all of the controversies, questions and claims between the plaintiff and the defendants, were fully and finally adjusted, settled, satisfied and ended.”

The plaintiff in his reply admits the execution and delivery of the said agreement, and substantially admits the performance by the defendants of their part thereof; but asserts that “ the execution of the said paper, by the plaintiff, was procured, induced and compelled under the circumstances, and by the false imprisonment and duress (set forth in the various paragraphs of the complaint), and by the conspiracy, malicious arrest, fraud and duress ” therein stated. To this replication the defendants rejoined by a denial.

The issue so formed, as were all the other issues in the case, was found in favor of the defendants. The finding of facts on this part of the case is as explicit and clear as language can make it. The court says: “ It was understood, intended and agreed by all the parties to said negotiation and settlement, and to the said family agreement, that the same should accomplish a full and final settlement and ad*264justment of all the existing claims, questions and differences between the parties thereto, and of all the legal proceedings then pending, and the subject-matter thereof, and of all the matters arising out of the proceedings instituted by Mr. Merritt—the said complaint and application made to the judge of probate on the 18th day of December, 1893,—in favor of, or against, whatever party, and including all the matters covered by the plantiff’s complaint, all of which antedated the said settlement.”

We are not able to see why this finding of the issue and of the facts is not a complete and absolute bar to the plaintiff’s entire action. Had he desired to make the claim that the “ family agreement ” did not of itself operate to bar his action, because its terms do not warrant such a construction, and that the alleged intention that it should so operate was unavailing because not so. expressed in it, he should have demurred.

So far as the plea of duress is concerned the plaintiff was never in such a situation that it was legally impossible for him to make an agreement which would be binding on him. All those circumstances with which he was surrounded, so graphically and impressively set forth by his counsel in their brief—-which constitute the duress and imprisonment complained of, and which would be likely to affect his freedom of action—were for the consideration of the trial court. From the finding of facts we know that the trial court did consider them, and having so considered them has found that “said family agreement was executed by the plaintiff freely and voluntarily, and under the advice of Ms friends and counsel, and without any influence having been brought to bear upon him by any person or persons save only his friends and counsel, who, acting solely in his interests, advised and urged Mm to its execution.”

It seems to us that the plaintiff is bound by the family agreement; that he ought to keep it, and that he has no right of action for anything alleged in the present complaint,

There is no error.

In this opinion the other judges concurred.