Morley v. Chase

• Decision Date: 10 January 1887
• Citation: 9 N.E. 767,143 Mass. 396
• Parties: MORLEY v. CHASE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

143 Mass. 396

9 N.E. 767

MORLEY

v.CHASE.

Supreme Judicial Court of Massachusetts, Suffolk.

January 10, 1887.

Tort for assault. At the trial in the superior court, before THOMPSON, J., it appeared that on May 27, 1884, a constable duly attached, on civil process, certain personal property of the defendant in the defendant's bake-shop, and duly deputed the plaintiff as keeper thereof in said shop. The defendant's daughter, 16 years of age, was attending said shop at the time, and in half an hour another older girl, employed in said shop, came in, and remained there. The evidence was conflicting as to whether the girls, or either of them, were informed or knew that an attachment had been made, or as to the authority, object, or purpose of the constable or keeper; the girls denying having had any such information or knowledge, and the constable and plaintiff testifying that they duly and fully informed said girls of the attachment, and showed to them the deputation paper. It further appeared that the defendant came into his shop, and found there the plaintiff and said girls; and that, upon being told by his daughter that the plaintiff had pushed her, and “taken money from the drawer,” he seized the plaintiff, after telling him to restore the money, and held him against a partition until a policeman came, and took plaintiff away from the shop. The defendant also offered evidence tending to show that the plaintiff made no statement, and gave no information, as to the attachment, or his authority, and that the defendant neither knew or suspected either. The plaintiff offered evidence tending to prove that, immediately upon the defendant entering the shop, plaintiff fully informed him of the attachment, and his authority as keeper, and that the defendant fully understood that before making the assault complained of. The court, in substance, ruled and instructed the jury that the plaintiff, being rightfully in said shop, and his doings there being legal, the defendant, not being an officer, had no right to arrest or lay violent hands on him, even though the defendant had reasonable cause to believe that the plaintiff had committed a felony, unless, by some fault or improper omission on the plaintiff's part, the plaintiff contributed to induce such belief; and that the defendant, if he was led to believe that the plaintiff had wrongfully taken money from his drawer, by the conduct of the plaintiff, and his failure to notify the defendant of his business in his shop, would be justified in forcibly restraining the plaintiff, and endeavoring to obtain the money which he believed had been wrongfully taken from the drawer, although, in fact, no money had been wrongfully taken therefrom; and that, in determining whether or not, the defendant believed that the plaintiff had wrongfully taken money from the drawer, the jury were to take into consideration all the circumstances bearing upon the conduct of both the plaintiff and the defendant upon that occasion. At the close of the charge, the defendant requested the court further to rule and instruct the jury that if the Chase girl notified her father, as testified to by her in the hearing of the plaintiff, and the plaintiff with the opportunity so to do, neglected to explain to the defendant, such neglect may have justified the defendant in arresting him. The court declined to make this ruling. The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.W.S. Stearns and J.H. Butler, for defendant.

The instruction requested was appropriate and right, and...