Deggett v. Hooper

• Decision Date: 29 May 1940
• Citation: 306 Mass. 129,27 N.E.2d 737
• Parties: DEGGETT v. HOOPER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

306 Mass. 129

27 N.E.2d 737

DEGGETT

v.HOOPER.

Supreme Judicial Court of Massachusetts, Norfolk.

May 29, 1940.

Exceptions from Superior Court, Norfolk County; Good, Judge.

Action in tort for false imprisonment by Thomas T. Doggett, Sr., against James R. Hooper. Verdict for the defendant, and plaintiff brings exceptions to certain portions of the instructions given to the jury.

Exceptions overruled.Edward M. Dangel and L. E. Sherry, both of Boston, and C. Van Arsdale, of Rochester, N. Y., for plaintiff.

J. G. Palfrey, G. B. Rowell, and J. E. Rogerson, all of Boston, for defendant.

RONAN, Justice.

The plaintiff sues in tort for false imprisonment, because, by order of the deffendant that he withdraw from a town meeting in Dedham on April 4, 1934, he was confined in a separate room for an hour and until the meeting had adjourned, as the result of the action of the defendant, the town moderator at said meeting. The case was referred to an auditor, and was later tried upon the auditor's report together with other evidence before a jury, which returned a verdict for the defendant. The case is here on the plaintiff's exceptions to certain portions of the instructions given to the jury.

The record contains certain testimony of the plaintiff, and the parties instead of setting forth the testimony of the defendant and his witnesses agreed that the case was properly submitted to the jury. There was evidence that upon the opening of the meeting the plaintiff rose from his chair, addressed the defendant seeking permission to speak upon a question of personal privilege, and came to the front of the hall. He complained that the defendant at the preceding meeting had prevented him from completing his remarks on three occasions by allowing the previous question to be raised. He asked the defendant under what rules he was conducting the meeting. The defendant referred to a by-law. The plaintiff continued to talk concerning parliamentary rules and wished to read from a book which he held in his hand. The defendant ruled him out of order and requested him to be seated. The plaintiff kept on talking. The defendant again told him to be seated but the plaintiff continued to talk. The defendant then told him to be seated or leave the hall. The plaintiff stated that if he could not have his rights he might as well leave and went back to his chair and picked up his hat and some papers. He kept on talking. The defendant told him that if he said another word he would have him removed and confined. Thereupon the plaintiff in a sharp, irritating tone said ‘Thank you, sir.’ The defendant then ordered an officer to remove the plaintiff from the hall. The plaintiff followed the officer out of the hall and went with him to a room in the school department, where he stayed for an hour. The officer refused to let him go any sooner. The auditor found that the plaintiff addressed the meeting without leave; that he was not silent at the request of the moderator; that he did not withdraw from the meeting after having been ordered to do so by the moderator; and that he was guilty of disorderly behavior in the sense that his conduct did not comply with the rules established by the moderator for conducting the meeting. He found for the defendant.

The judge instructed the jury, in substance, that mistakes of judgment made by a moderator that do not result from wilful, wanton, malicious or dishonest conduct are not reversible by a court; that it is the duty of the moderator to determine all questions of order; that a person is disorderly at a town meeting if he fails to observe the rules or refuses to comply with constituted authority or if he takes exception to the order of the moderator; and that the plaintiff was disorderly as he had been ruled out of order. He left to the jury the question whether the plaintiff failed to withdraw from the meeting after he had been ordered to do so by the moderator, and instructed them that it was only in that event that the moderator had a right to order the plaintiff to be removed and confined.

The powers and duties of a moderator have been fixed by law for more than two conturies. The statutes in their present form are set forth in G.L. (Ter.Ed.) c. 39, §§ 15 and 17. Section 15, in so far as material, provides that the ‘moderator shall preside and regulate the proceedings, decide all questions of order, and make public declaration of all votes.’ Section 17 reads as follows: ‘No person shall address a town meeting without leave of the moderator, and all persons shall, at the request of the moderator, be silent. If a person, after warning from the moderator, persists in disorderly behavior, the moderator may order him to withdraw from the meeting, and, if he does not withdraw, may order a constable or any other person to remove him and confine him in some convenient place until the meeting is adjourned.’ The original statute, St.1715, c. 22, provided for the imposition of a penalty upon one who spoke without leave or when another was properly addressing the meeting or who refused to be silent upon the request of the moderator, and persistence in such conduct empowered the moderator to order him to leave the meeting and disobedience of the order was punished by a forfeiture of a certain sum. The disobedience of such an order was, by St.1785, c. 75, § 6, made punishable by confinement for three hours unless the meeting was sooner adjourned. Both these statutes and their successors specially enjoined one from speaking without permission and from interfering with another who had the right to speak, and required him to be silent at the request of the moderator. A breach of the statute in the respects last mentioned has not carried any penalty since Rev.Sts. (1836) c. 15, § 29, but persistence in such conduct has since the original enactment subjected one to expulsion and, since 1785, to the danger of being confined until the meeting was finished. The various codifications and amendments in these statutes have wrought no...