Dickson v. Waldron

• Citation: 34 N.E. 506,135 Ind. 507
• Decision Date: 07 June 1893
• Docket Number: 15,934
• Parties: Dickson et al. v. Waldron
• Court: Supreme Court of Indiana

34 N.E. 506

135 Ind. 507

Dickson et al. v. Waldron

No. 15,934

Supreme Court of Indiana

June 7, 1893

Reported at: 135 Ind. 507 at 524.

From the Marion Superior Court.

The judgment is affirmed.

W. H H. Miller, F. Winter, J. B. Elam, B. K. Elliott, W. F Elliott, P. Norton, R. O. Hawkins and H. C. Smith, for appellants.

O Gresham, J. B. Kealing and M. M. Hugg, for appellee.

OPINION

Howard, J.

On October 1, 1887, and at the time of the bringing of this suit, appellants were the lessees and managers of the Park Theater, in the city of Indianapolis. At the entrance to the theater, about three feet from the sidewalk, a flight of stairs ran up to a landing, at the rear of which was the box office for the sale of tickets. At either side of the landing a flight of stairs led up to the east and west entrance doors to the theater. At the top of the first flight of stairs, at the edge of the landing, gates were placed, four feet high, to keep the crowd back. Between these gates was an opening, where the chief officer of the theater, named Klingensmith, an employe of appellants, stood while the crowd was coming up, after which the gates were opened, and this officer went to keep order in the gallery.

Appellants also managed and controlled other theaters in Indianapolis and elsewhere, and, in their absence, John Dickson, brother of the appellant George A. Dickson, was the general manager of Park Theater, acting for appellants. He also assisted in selling tickets.

John M. Kiley was the head janitor of the theater, and lived, with his family, in the theater building. He was also doorkeeper, and stood at the west door, but could leave in case of emergency. At the request of appellants, he was granted special police powers by the metropolitan board of police of the city of Indianapolis, such powers to be exercised at the Park Theater. He received his pay from appellants. He had been in the employment of appellants at the theater before receiving his police powers, and his pay was not increased after receiving such powers. Appellants requested his appointment at the suggestion of the chief police officer, Klingensmith, for the purpose of assisting him in preserving order in the theater. He was not relieved of any of his duties in the theater after being appointed special policeman. His instructions from appellants were not to make any arrests, except to assist Klingensmith, unless otherwise ordered by appellants, or by John Dickson. In Klingensmith's absence, Kiley acted for him.

Joseph Gordon was treasurer and ticket seller for the theater.

On the evening of October 1, 1887, Joseph Gordon was in the box-office selling tickets. John Dickson was also in the box-office assisting in the sale of tickets.

On that evening appellee, who was a conductor on the Indianapolis, Decatur and Western Railroad, came with four friends to attend an entertainment at the theater. Appellee testifies that he went up stairs to the ticket office and called for a ten cent ticket; that he gave the ticket seller, Joseph Gordon, a silver dollar, and received from him his ticket and only seventy cents in change; and that another of the party, named Doran, also had some misunderstanding as to the purchase of his ticket.

The testimony of appellee then proceeds: "I do not remember just exactly whether Doran had purchased his ticket before me or after I did. He wanted a ticket to go up stairs, too, and they gave him a ticket to go down stairs, and I says to the ticket seller like this, I said, 'Here is five of us in a party, and want to go together; you have made a mistake in our tickets.' He said, 'What is the matter with you? Get away from that window and give others a chance.' I said, 'I am not going until I get my right change. You have made a mistake in my change, too,' and held out my hand--I had not taken my hand down from the shelf in front of the window--and he reached through the window and grabbed my change and ticket and slapped me in the face at the same time, and said, 'Damn you, get away from that window;' and reached for my brakeman and grabbed his ticket, and said, 'Police,' or 'Johnny,' I do not know which, 'Police,' or 'Johnny, arrest that man for a vag.' A man named Kiley, there, a private policeman for the theater company, stepped up at the side of me, or behind me, and knocked me down."

He testifies that the first blow was on the left forehead, which knocked him partly down on his left elbow; that when he attempted to rise Kiley struck him again; that altogether he was struck six times on the head, three times on the left shoulder, and twice on the left forearm; that during this time Kiley said nothing to him, but that he asked Kiley what he was beating him for, "and I said if he had anything to arrest me for, to arrest me, and for God's sake not to beat my brains out."

Somebody then interfered, and Kiley for the time withdrew, and then Gordon came out of the ticket office and grabbed appellee about the neck with his left arm, and began pounding him in the face with his fist, then knocked him down and kicked him two or three times; that Kiley then arrested him, and sent him to the police station.

The testimony of appellants' witnesses as to the transaction differs in almost all the details from that given by appellee, but not in the main facts; that is, the beating of appellee in front of the ticket office by Gordon and Kiley; that the quarrel resulted from disputes as to the purchase of tickets; that both assaults were made upon appellee before his arrest by Kiley, and that appellee did not strike either of his assailants.

The testimony of Joseph Gordon and John Kiley shows their treatment of appellee to have been most brutal. Gordon testifies that he and John Dickson were in the ticket office when appellee came up and threw down a silver dollar and asked for a ticket, not specifying what priced ticket; that he gave him his ticket and the proper change. His testimony then proceeds: "He," Waldron (appellee), "said, 'You did not give me my right change.' I said, 'Yes, sir.' He said, 'No, sir.' I said, 'I gave you just the exact change with your ticket, and if you did not get your change somebody else got it.' He said, 'You did not.' I said, 'I did.' * * * I sold two or three tickets while he stood there arguing." That appellee then called him a vile name. "I said, 'Be careful, I won't take that off of anybody; you or anybody else.' He said, 'I want my change.' I said, 'Your change was right, and if it is not, when we make up the house our cash will show it, and if there is any over we will make it good to you.'" That thereupon appellee repeated the vile name, and Gordon went out of the ticket office and attacked appellee. "He was standing up pretty near the office, and I hit him, and he turned around and squared and I hit him again. * * * I could not say how hard I hit him; I hit him pretty hard; I tried to. * * * In the face." That there was nothing said between them after Gordon came out of the office. "Then we got on over to the stairway, and I hit him again, and got my arm around his neck, and we were about three or four steps down from the top. * * * I caught him around the neck with my arm and pulled him down. * * * I got him down on the stairway and hit him two or three times more, and I kicked him a couple of times. * * * I hit him in the face. * * * I hit him three or four times there, and kicked him, and then he said, 'I have enough.' * * * Mr. Kiley was down stairs at the time, out on the sidewalk. * * * I had quit when he halloed, 'I have enough.' * * * Kiley was coming up when he said that, and I said, 'Kiley, arrest this man.' When Kiley came up "I started to let go when (some) fellow said, 'Give it to him.' Kiley hit him with the mace." That when Kiley hit Waldron (appellee) the latter was "partially down; just about half way up. * * * I was very near up on my feet. * * * When Kiley came up and hit him, I let go of him, and went up stairs and went into the office and sold tickets."

The witness Adkins, who was ticket-holder at the east door, testified: "I thought I would go down and see and stop that fussing if I could. * * * They had hold of each other when I got there. * * * I just stooped down and put my hand under their shoulders and assisted them. * * * Just as I was in the act of raising them up I threw my eyes down the stairway and saw Mr. Kiley coming up, and just about the time they got straightened on their feet Mr. Gordon said to Mr. Kiley, 'Arrest that man.' Mr. Kiley came up to him and I saw Mr. Kiley throw up his left hand * * * and the next I saw he struck him * * * with his mace."

Kiley himself testified that the appellant Henry M. Talbott, had instructed him that his "duties were to take tickets at the door and supervise the cleaning of the house and assist Mr. Klingensmith in making arrests, or preserving order." That sometimes, when employes would come to him and tell him that there was a disturbance in some part of the house, he would go there.

As to the disturbance, he testified: "I was walking up the stairway and happened to glance up, and I saw Mr. Gordon having a fight, fighting with a man on the stairway. * * * The man's head was up against the casing on the west side of the stairway. * * * He was sitting facing me as I came up. * * * He (Gordon) was on the step above him, and had hold of of him * * * I did not hear the man say anything; Gordon only said, 'Arrest this man.'"

"What did you do after striking Mr. Waldron?" "I arrested him."

John Dickson had remained, during the whole time, in the ticket office, and had seen the greater part of the conflict, as detailed by Gordon and Kiley, and, in his testimony, corroborates most of their statements.

He says: "I went on...