Scougale v. Sweet

Citation82 N.W. 1061,124 Mich. 311
CourtSupreme Court of Michigan
Decision Date29 May 1900
PartiesSCOUGALE SWEET.

Error to circuit court, Shiawassee county; Sherman B. Daboll Judge.

Action by Monroe L. Scougale against John Sweet. Judgment for plaintiff, and defendant bring error. Reversed.

Plaintiff was sheriff of Shiawassee county, and resided in the city of Corunna. Defendant was a clergyman of the Methodist Episcopal Church, and resided in the city of Owosso. These two cities are about 2 3/4 miles apart, and connected by a street railway. About midway between the two is Caledonia Park. The main street in Corunna is about 1 3/4 miles from the park and the principal street in Owosso is about 1 mile from it. In three local newspapers (two dailies and one a weekly), on Saturday, appeared the following notices: 'It is expected that the Owosso Grays and the Bay City team will play ball on the new grounds near Caledonia Park on Sunday.' 'There will be a game of baseball to-morrow at the new ball grounds, near Caledonia Park.' 'The baseball ground near the park is ready for the game Sunday. A grand stand has been erected, and the diamond put in first-class shape. A large crowd is expected to witness Owosso administer a defeat to Bay City.' Two of these papers were taken by plaintiff. The defendant on Saturday night, about 7 o'clock, called up the plaintiff by telephone, and conversed with him in regard to the game. The parties differ somewhat as to the conversation had between them. Defendant's version is as follows: 'On Saturday evening I called up the sheriff by 'phone, and asked him if the ball game, 'as advertised to be played to-morrow,' was going to be allowed to come off. He asked me, 'What baseball game?' I said, 'A baseball game is advertised to be played between this city and Corunna to-morrow,' and he asked me who was the manager of it. I told him I did not know, but would find out. I said, 'The people of Owosso--a large number of the citizens of Owosso--are indignant over such an outrage,' and I thought that we ought to have the protection that the law afforded us. And he said he would see the prosecuting attorney, and find out what he ought to do. I said: 'The law makes it very clear what you ought to do. You ought to prevent the commission of a crime, when it is advertised beforehand.' About five minutes later I called him up and informed him who the manager of the Owosso team was.' Plaintiff's version of the conversation is as follows 'I remember the circumstances of Mr. Sweet calling me up by 'phone to notify me that he understood there was to be a ball game on the following day, which was Sunday. He asked me if I was aware it was publicly announced that there was going to be a ball game Sunday. I told him I was not. He said, 'Such is the case,' and he thought it ought not to occur. I said I thought so, too. I said I did not uphold any such work, and asked him who the manager of the game was. He informed me he did not know, but would try and find out. In a short time he called me up again, and informed me Mr Parshall was manager of the game. I informed him I would call Mr. Parshall up at once. That was all the conversation between us.' The ball ground had been arranged, seats prepared, and canvas stretched around the park. One Van Houten called up the sheriff on Saturday night, and told him he understood they were going to play ball there Sunday, and that he saw the canvas was up all around the park. Two or three days before the Sunday in question, Mr. Parshall, the manager of the Owosso ball club, saw plaintiff and the prosecuting attorney, and asked them about playing games on Sunday. Chandler said to Mr. Parshall, 'You better be careful.' Mr. Parshall, who was called as a witness for the plaintiff, testified: 'I told the sheriff and Mr Chandler that we intended to play a game of ball the next Sunday, and that Mr. Chandler said, 'You had better be careful." Plaintiff testified that Parshall did not tell him that the game was to be played. After receiving the notification from defendant and from Van Houten, plaintiff testified that he went some time that evening to Mr. Chandler's office, and did not find him. He did not go to his house, or make any further effort to see him and ask his opinion and advice in the matter. Plaintiff testified that he had not seen these notices in the papers, and that, after Mr. Sweet had notified him, he called up Mr. Parshall and told him that he had been notified that he (Parshall) was manager of the ball game, and was going to play a game on Sunday; that Parshall said, 'There was no such thing advertised, and he didn't know as they were going to play;' that he told him if he did play he did it at his own risk,--that he (plaintiff) would have to do his duty in the matter; that Parshall said, 'If there is a game to be played, I will let you know;' and that he (plaintiff) relied on the information furnished him by Parshall. On cross-examination plaintiff testified: 'I did not know from what Mr. Sweet and Mr. Van Houten told me that there was a ball game advertised. I simply had their words for it. I did not prefer to take Mr. Parshall's word, in preference to Mr. Van Houten's and Mr. Sweet's, that there was not going to be a ball game; but I took Mr. Parshall's statement, and acted on it. I relied upon it. I relied more on his than upon Mr. Sweet's, because they said it was hearsay; they said they heard it was going to be played. Mr. Parshall did not tell me, when I called him up, that he expected to play a game there; but, when I asked him if a game was going to be played, he said there wasn't any such thing advertised, and he didn't know as they were going to play ball. That is the answer he gave me, and all that I know about it. He asked me what the consequences would be, from which I inferred that he wanted to know whether I was going to do my duty or not.' Plaintiff further testified: That he lived a mile and three-quarters from the park. Did not remember where he was on Sunday afternoon. Was not in Owosso. That he did not see the canvas fence before the game was played. Did not notify any of his deputies. That he had two in Corunna, and an undersheriff and a deputy in Owosso. That all the measures he took to prevent the game was 'calling up the manager, and notifying him not to play.' Parshall's version of the conversation between him and plaintiff is substantially as follows: 'Plaintiff asked me if there was going to be a game of ball played on Sunday. He said he understood there was. I asked him who was his authority. He wouldn't tell me. He said he understood there was going to be a game of ball played, and asked me if it was so, and I told him we had intended to play. Q. Detail the conversation as briefly as possible. A. I had to ask him some questions before I could answer him. I don't know how to answer your questions. Q. When he said he had been informed there was going to be a ball game played, he asked you, did he not, if you intended to play a game of ball on Sunday? A. He did. * * * After we talked a little, I told him there wouldn't be any game.' Parshall further testified, on cross-examination: 'I understood that the sheriff, as conservator of the peace, would be the man to prevent the violation of the law.' It was in view of this knowledge that Parshall asked the sheriff and Chandler what they thought about playing on Sunday. On redirect examination he gave the following testimony: 'I said the sheriff, when I talked with him by 'phone, gave me some information what would happen if the game was played. When I asked him what would be the trouble if we played, he said he would have to serve any warrants if any were issued. I asked him, if there were no warrants issued, if the game would be allowed to go on. He replied that would depend on what advice he had from Mr. Chandler. I think I told him, the last thing I said, that we would not play without letting him know. He said he would have to do his duty; that, if warrants were put into his hands, he would have to serve them, but, if no warrants were issued, it would depend on what the prosecuting attorney told him. He did not tell me he would interfere or not, but said, if he was in my place, he wouldn't play. He did not say he would do anything unless a warrant was placed in his hands to serve.' The game was played, and an admission fee charged; was attended by about 300 people; lasted 1 hour and 38 minutes; and was accompanied by the usual shouts and noise, which could be heard a long distance away. Parshall attended the game, and took charge of the proceeds. He did not notify the sheriff that the game would be played. The following week defendant published an open letter to the plaintiff in two local newspapers, reading as follows: 'When you assumed your present office, you took oath to enforce the laws of the state. To violate an oath is always shameful,--particularly so when it relates to official duties. Yet this thing you have done. In legal terms, the violation of an oath is called 'perjury.' You have allowed two gangs of criminals to commit crime after due notification had been given you of such intention, first by the criminals themselves, and subsequently by more than one law-abiding citizen. Your absence from the scene of this crime (the baseball game on Sunday last) is itself criminal, and you ought to have self-respect enough left to resign your office. When openly-avowed criminals have no fear of the sheriff before their own eyes, the sheriff is no good. It has not been left to you to determine who shall obey the law. The state has determined that all shall do so. In choosing to exempt certain lawless persons from the obligation which the law imposes on all citizens, you have arrogantly usurped the functions of the state. Yours, truly, John...

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