112 Mich. 508 | Mich. | 1897
Lead Opinion
(after stating the facts). Counsel for the plaintiff argues (1) that the plaintiff, acting for the city, had the right to remove the track for the purpose of paving the street; and (2) that, if he had not, still the defendant had no right to use a shotgun to prevent its removal. Counsel for the defendant argue (1) that plaintiff was not acting for the city, nor under authority conferred by it; (2) that the defendant had the right to resist the plaintiff and the others with sufficient force to prevent the accomplishment of their purpose. The question of intentional shooting has been disposed of by the 'special finding of the jury that the discharge of the gun was accidental. This finding removes from the case the question whether defendant had the right to intentionally shoot at the plaintiff or others in order to protect the property of the company, and prevent its destruction. Neither need we discuss the question whether the city, acting'through its proper body,- the common council, could remove the track without taking legal proceedings, upon the ground, as claimed, that the failure to comply with the ordinance operated ipso facto as a forfeiture of the franchise granted. It is contended on the part of the defendant that the failure to construct the track along the entire line was the^ fault of the common councils and not of the railway company, in that the delay was requested by the city for the reason that the street was not in condition. The resolution of forfeiture was passed
Plaintiff was acting without any authority from the council. No record of any action by the council was shown directing him or the street committee to take up this taack. Even the street commissioner, who has general charge of the streets, can perform only such work as the council shall direct to be done. 1 How. Stat. § 2489. If it should be ftmnd upon judicial determination that the destruction of the property was illegal, would the city be liable in damages ? The answer to this question depends upon whether plaintiff was acting under the authority of the city. The common council can act only by resolution or ordinance duly passed, and found in its record. A municipality is not responsible for the acts of its officials unless they are acting within the scope of their authority. The common council had done no more than to declare the franchise forfeited upon the street in question, and had directed the company to remove its track upon being properly notified. No power is anywhere found in the statute authorizing the street committee to assume that the railway is a nuisance, and an obstruction, and to proceed to remove it by force without instruction. They have no more right to do it than would private citizens living along the street. The municipality had not authorized such action, and was not responsible therefor.
Plaintiff was the promoter of, and was engaged in, an unlawful assembly, and was acting in violation of 1 How. Stat. § 2015, prohibiting work on the first day of the week. His sole purpose in so doing was to prevent the railway company from appealing to the courts to protect its rights. No process can be issued or
This is not a proper case in which to determine the legal rights of these parties. The railway company was in possession of its property, and using it. He who claims the right to invade this possession must first have that right determined by the courts. He cannot resort to force. In Iron Mountain, etc., R. Co. v. Johnson, 119 U. S. 608, Johnson was in the actual and peaceable possession of 18 miles of railroad, which was built by him for the company, and was running his own locomotives over it. He claimed the right of possession. The company disputed it, and ejected him by force. The court used this language:
‘ ‘ The party so using force and acquiring possession may have the superior title, or may have the better right to the present possession, but the policy of the law in this class of cases is to prevent disturbances of the public peace, to _ forbid any person righting himself in a case of that kind by his own hand and by violence, and to require that the party who has in this manner obtained possession shall restore it to the party from whom it has been so obtained; and then, when the parties are in statu quo, or in the same position as they were before the use of violence, the party out of possession must resort to legal means to obtain his possession, as he should have done in the first instance.”
This doctrine was sustained by Denver, etc., R. Co. v. Harris, 122 U. S. 597, and the court in that case said:
*514 “ The courts of the territory were- open for the redress of any wrongs that had been, or were being, committed against the defendant by the other company. If an appeal to the law, for the determination of the dispute as to right of possession, would have involved some delay, that was no reason for the employment of force; least of all for the use of violent means under circumstances imperiling the peace of the community and the lives of citizens. To such delays all—whether individuals or corporations —must submit, whatever may be the teniporary inconvenience resulting therefrom.”
See, also, Appeal of Easton, etc., R. Co., (Pa. Sup.) 19 Atl. 486.
It follows that the plaintiff was engaged in an unlawful work, in an unlawful assemblage, and was a disturber of the peace. The police of the city) instead of being present to protect plaintiff in his unlawful acts, should have prevented them. The controversy is one which should have been disposed of in the usual and orderly manner by judicial proceedings. The jury has determined that the shooting was accidental, and that the defendant intended no injury to the plaintiff. If the plaintiff in such case was roughly handled and injured while engaged in an unlawful act, the law has no particular tenderness for him, and will not give him damages for the injury received. Galbraith v. Fleming, 60 Mich. 403; People v. Pearl, 76 Mich. 211 (15 Am. St. Rep. 304). The deputy sheriff was authorized by law to prevent the accomplishment of the illegal act, and plaintiff should have desisted when so warned by him.
Under this view of the case, I think there was no prejudicial error in the instruction of the court.
The judgment should be affirmed.
Concurrence Opinion
The facts are stated in the opinion of Mr. Justice Grant. I concur in the conclusion reached by him that the plaintiff and his associates were committing an unlawful act in attempting to pull up thé track of the street railway company in the manner in which they did; and, as the jury has found that the dis
1. In the case of Denver, etc., R. Co. v. Harris, 122 U. S. 597, the plaintiff recovered for injuries received while defending property of the Atchison, Topeka & Santa Fé Railway Company, in whose employ he was, and the court assumed that, notwithstanding the fact that he was armed with a gun, this did not preclude a recovery. This holding necessarily involved the proposition that the possession of firearms by one lawfully in possession of property, made use of for the purpose of intimidating trespassers, is not, of itself, unlawful. This being so, an accidental injury, caused while doing a lawful act, does not, generally, create a liability. See Brown v. Kendall, 6 Cush. 292.
2. The circuit judge charged the jury as follows:
“I have said to you that the defendant would not have been justified in shooting—that is, in killing—the plaintiff, or attempting to kill him, or any other person present, but,, if he had killed the plaintiff, he would have been guilty of manslaughter. But, of course, gentlemen, you will be cautious, and scrutinize the evidence in regard to this branch of the case. You cannot infer that the defendant intended to kill the plaintiff from the mere fact that a portion of the contents of the gun were found upon the person of the plaintiff, nor can you infer it from some general threat, not relating to the plaintiff, which he may have made some time before the shooting took place. It is just as necessary to prove the intent as it is to prove any other fact in the case. The question of intent is a question of fact, and, in order to find that the defendant intended to shoot the plaintiff, you must find that that intent has been proved by some credible witness in the case, and by a preponderance of testimony.”
The judgment should be reversed, and a new trial ordered.