Sloan v. Schomaker

136 Pa. 382 | Pennsylvania Court of Common Pleas, Philadelphia County | 1890

Opinion,

Me. Justice Mitchell:

On the evidence in this case it is entirely clear that plaintiff was not entitled to recover. He went to defendants’ store upon an errand that was likely to produce a breach of the peace. The charge, if true as he believed, would naturally and properly make him indignant, and that this was his frame of mind appears from the remark which he admits making, that he would like to thrash the man who insulted his mother. On the other hand, such a charge made persistently to the interruption of business, and especially if unfounded or erroneous, would naturally provoke a hostile spirit on the part of defendants. It did so, and Gray ordered plaintiff out of the store. Both plaintiff and his father admit that this order was given to them twice. It was their legal duty to go. In strict law, defendant might then have used sufficient force to put them out with his own hands. Instead of doing so, he adopted the prudent and commendable course of sending for an officer. Some effort was made by counsel to show that plaintiff and his father were going out, when the officer arrived and arrested them, and plaintiff did testify: “ When the officer came in we were moving to the door, and almost got there.” But the evidence on the part of plaintiff as a whole shows clearly that he had no intention of going out. He says: “ When the officer entered we were about ten or fifteen feet from the door; ” and yet, on cross-examination, he says Gray “ came over to us; when we came together, we were not far from the door, we were about ten or fifteen feet.” Evidently, what movement there was towards the front of the store was during the interview with Schomaker when they first went in, and not during or after the interview with Gray, in Avhich the orders to leave the store were given. And the spirit in which the plaintiff acted is shown by his father’s testimony, that Gray “ sent out for a police officer. I did not feel afraid of an officer.” It is thus apparent on plaintiff’s own evidence that he was in the wrong. It was his duty to leave when ordered to do so. Under the circumstances, as he vierved them, his indignation, as already said, was natural and proper, but the law is plain, and it cannot be too distinctfy understood that the public peace is above all considerations of private insult, and those who undertake to get satisfaction by their own acts, especially by going to the other party, after a lapse of time, must be careful to keep within the legal limits, or they will have only themselves to blame for the consequences. The learned judge in his answers to the points laid down the law correctly to the jury, but he took too lenient a view of plaintiff’s conduct, and the instructions that “if plaintiff’s story is to-be believed, he is entitled to recover,” and “ if plaintiff tells the truth, Gray was the aggressor,” cannot be sustained.

The count for malicious prosecution was not included in the original narr, but was added subsequently; but, even if it had been regularly joined at first, the plaintiff’s case under it would have been fatally defective. Passing by the question whether defendants ordered the prosecution, or took such part in it as would render them liable, the magistrate’s docket shows the charge to be “ breach of the peace in using threats and inciting to riot; ” and, though riot is rather a large word for the occurrence, yet there were enough persons concerned to have made it a technical riot, and the plaintiff’s own evidence shows that the substantial charge, breach of the peace, was not only not without probable cause, but was true in fact. Under no view of his own evidence should he have been allowed to recover.

As this view of the merits disposes finally of the whole case, it is not necessary to consider the question of the amendment, nor the effect of the procedure act of 1887 on the heretofore established rule that no amendment can be allowed Avhich introduces a new cause of action.

Judgment reversed.