Gillespie v. Beecher

• Decision Date: 24 April 1891
• Citation: 48 N.W. 561,85 Mich. 347
• Court: Michigan Supreme Court
• Parties: GILLESPIE v. BEECHER.

48 N.W. 561

85 Mich. 347

GILLESPIE v. BEECHER.

Supreme Court of Michigan

April 24, 1891

Error to circuit court, Wayne county; GARTNER, Judge.

Henry M. Cheever and Luther S. Trowbridge for appellant.

D A. Straker, (James H. Pound, of counsel,) for appellee.

CHAMPLIN C.J.

This is an action for assault and battery, in which the plaintiff recovered damages in the court below to the amount of $2,500. The declaration, which contains a single count, alleges "That said defendant heretofore, to-wit, on the 30th day of August, 1888, with force and arms made an assault upon said plaintiff, and did beat and otherwise ill-treat said plaintiff, to-wit, did attempt to strike said plaintiff with a large stick in his hand, and did unlawfully take hold of said plaintiff, and did with great force and violence push said plaintiff away from him, while said plaintiff was endeavoring to rescue her husband from said defendant, who was about at said time to strike her (plaintiff's) husband with a stick, and other wrongs to the plaintiff did, against the peace and dignity of the people of the state of Michigan." The testimony introduced upon the trial showed that defendant was the owner of the Globe Hotel, situated at the corner of Jefferson avenue and Brush street in the city of Detroit, with an entrance upon Brush street. There were 35 rooms in the hotel; and on or about the 8th day of March, 1888, under an arrangement entered into between plaintiff and her husband and Mr. Beecher, they entered into possession, and kept a hotel and boarding-house. The plaintiff's evidence tended to prove that on the 28th day of August, 1888, Mr. Gillespie paid Mr. Beecher in full for the rent due, and at about 9 o'clock on the morning of August 29th Mr. Beecher entered the office of the hotel, and told them he wanted possession of the place, and had brought men with him to put their things out; that they declined to yield possession, and plaintiff told him that the men must leave; that she went into the kitchen, and when she returned the men were gone, and Mr. Beecher sat in a chair in the office; that Mr. Gillespie told him if they had to move they would, but wanted until the next Monday to get a house to move into; that he went out to look for a house, and was gone until nearly noon; that when he re turned Mr. Beecher was still there, and still insisted upon having possession and closing the house, and wanted to separate the furniture. It appeared from the testimony of plaintiff that the 35 rooms were furnished, and all of the furniture and carpets belonged to Mr. Beecher, except two loads. Plaintiff's testimony further tended to prove that in the afternoon her husband went again in search of a house, and returned about 4 o'clock unsuccessful. In the mean time Mr. Beecher had removed his chair, and placed it against the double door of the front entrance, and sat down in it so as to prevent ingress or egress through such entrance; that at one time during the forenoon the plaintiff threw a wet dish-cloth in Mr. Beecher's face; that in the afternoon, while Mr. Beecher was barricading the doors, she approached him, but he raised his cane in a threatening manner, and told her to keep away at the peril of her life, or at her peril; that after that her child, then three months old, was taken sick, and she went to Mr. Beecher, and requested to be let out of the door, so she could go to the drugstore and get some medicine for her child, and informed him that it was sick, but he refused, and pushed her away violently. She then made her exit by another way, and, returning to the front entrance, was prevented by Mr. Beecher from entering there. Mr. Beecher occupied his position at the door, preventing ingress and egress by that entrance until about 9 o'clock in the evening. At this time two members of the Metropolitan police force had entered the office at the hotel through a vacant store leading from Jefferson avenue. Mr. and Mrs. Gillespie and others were present. Another member of the police force was stationed at the door, and a number of persons had collected about it. Mr. Demler, one of the policemen, testifies that Mr. Gillespie said "that Mr. Beecher had blockaded the door; that they had boarders who wanted to get in, and some wanted to go out, and could not get out. I said: 'Have you possession of this building?' He said: 'Yes.' I said: 'If I were in possession of the building I should remove him."'

It appears from the testimony of plaintiff's witnesses that Mr. and Mrs. Gillespie acted upon this advice. Mr. Gillespie narrates what ensued as follows: "I went and grabbed him like this, and said: 'You are here long enough, and you will obstruct this door no longer.' As I approached him he just rose up, and to the best of my knowledge I grabbed him under the arms. leaving his hands free. I just raised him up with all my might with the chair; that was all I could do. Mrs. Gillespie pulled the chair away, and in a moment Mr. Ormerod pulled the chair from her, and she received the blow that was intended for me, possibly, or rather for her head, on her hand. It was all done quickly and simultaneously, and the door was pushed right in. Question. At the time the door was pushed in, tell us what became of you and Mr. Beecher. A. Well, I might say it was over, for just as soon as I got him on his feet-of course he had to stand on his feet-she had the chair away from him, and he was on his feet with the cane up in this manner, and coming right down on her head, and she got her two hands on it, and with the crook part she pushed like this; and he wrestled her around; jammed her up against the case. Q. After your wife took hold of the cane, you say he wrestled? A. He tried to free the cane from her to use it. Q. Will you tell us what followed after that? A. Well, the officers interposed immediately. and quieted every thing, and dispersed the crowd." Mrs. Gillespie, the plaintiff, was asked to tell what took place when the officers were there, and she testified as follows: "They told us they could not remove him; we would have to remove him ourselves; to coax him away. Mr. Gillespie went to remove him. As soon as he raised him a little off the chair I saw he was not able to take him. There was a little scuffle between them, and I went over and took the chair from under him, and in a moment it was taken out of my hand, and I kind of fell back against the door. The door was forced in, and it kept me from falling. As it was, he was shoved over against the cigar-case, and 1 was also. I was shoved with my back against the door. He was close up beside me, and instantly he drew up his cane,-slipped it through his hand, and drew up his cane. I caught the hook end of it as it was coming down. I threw up my hands, and he shook me violently to get the cane away from me. Question. What did you do with the cane? Answer. I don't know anything more that happened, only just Mr. Demler giving a step towards me. I remember that, but I don't remember anything more. Q. Before that what, if anything, did he do with the cane? Did he have it down this way, or was it lying on the floor, or what was he doing with it? A. He never let it out of his hands at all while he sat there. Q. What did you catch it for,-why did you try to catch it? A. I would have got struck with it on the head if I had not. Q. Who was striking at you? A. Mr. Beecher." The testimony shows without any doubt that both plaintiff and her husband requested Mr. Beecher to leave the premises before they attempted to remove him, but he declined to leave, asserting that their lease had expired, and that he was in possession, and intended to keep it.

It was the claim of Mr. Beecher, and he introduced testimony tending to substantiate it, that he had leased the hotel, and by far the largest part of the furniture, to Mr. and Mrs. Gillespie which lease had expired on the day previous to the day on which the assault was alleged to have been committed, and that he then had an interview with Mr. and Mrs. Gillespie, which resulted in Mr. Gillespie's surrendering to him the premises; and that he then took possession, and put his watchman in possession. That it was agreed that on the next day at noon they should close the house, and they should separate out the furniture belonging to Mr. Gillespie; and he had agreed to give him full possession on the next day; and that Gillespie might occupy the rooms they were in temporarily, and also store their furniture until they obtained a house to remove to. That he went there the next morning and took along some men to assist the Gillespies in removing their furniture. That he went into the office, where he saw Mr. Gillespie, and told him he had come to separate the furniture. That Mr. Gillespie requested him to wait a short time for him to go down town and collect a board-bill. That he consented, and took a seat in the office. That Mr. Gillespie returned about 11 o'clock, and requested a further delay until after dinner, to which he consented. After dinner he asked Mr. Gillespie if he was ready to commence and carry out the agreement they had made the night before, and then Mr. Gillespie said he had seen his lawyer, and he had advised him that he could stay there a month or more. That he told Gillespie that he was badly advised; that they could not do that; and he said to them that the agreement they had made about closing the house must be carried out, and their things separated from his. That then Mr. and Mrs. Gillespie started to go up-stairs, and Mrs. Gillespie came rapidly down stairs and went behind the counter, and took all the keys off from the board, and went back up stairs. He then took his station at the door, sitting in a chair with his back to the door. He states what occurred...