Webber v. Barry

• Decision Date: 09 June 1887
• Citation: 33 N.W. 289,66 Mich. 127
• Court: Michigan Supreme Court
• Parties: WEBBER v. BARRY and others.

33 N.W. 289

66 Mich. 127

WEBBER v. BARRY and others.

Supreme Court of Michigan

June 9, 1887

Error to Saginaw.

Plaintiff was the owner of a steam saw-mill, and his men were working 11 hours per day. Defendant was agitating the 10-hour system and addressed meetings of laborers on the subject. At the head of a body of men, he went upon the premises of the plaintiff, while the mill was in operation and the men were at work. He halted his men about 200 feet from the mill, and went to consult with the foreman as to whether the men wanted to join the movement for 10 hours. He had previously cautioned them against violence. He was gone 10 or 15 minutes, and in his absence the men got into the mill, and committed some violence. He did what he could to get them away, and to prevent further violence. Judgment was given in the circuit court against the defendant in an action of trespass, and an appeal was taken.

SHERWOOD J., dissenting.

Wisner & Draper, for plaintiff.

Frank L. Dodge and Jerome Turner, for defendants and appellants.

MORSE J.

Upon the argument of this case, I was inclined to think that error had been committed in some of the proceedings upon the trial. A subsequent careful examination of the record leads me to the conclusion that the verdict and the judgment of the court below should stand.

I shall only refer here to the points raised in the case that seemed to me, on the argument, to have been erroneously decided by the circuit judge.

It struck me quite forcibly, at first, that Davitt should not have been allowed to act as an attorney in the case against the defendants; and also that the witness James B. Walsh should have been permitted, on cross-examination, to answer the question, "Do you remember what he [Barry] said that day to the men about observing the law, if anything?" But on an examination of the record it does not appear that Davitt acted in the case at all after the objection was made, nor does it appear that when he commenced the suit he had then been engaged in the criminal cases. It would have been the most proper course, it seems to me, for the defense to have objected to Davitt's taking any part in the trial at the beginning. Instead of this, they sat by and allowed him to participate in selecting the jury without any demur or protest. They knew then as well as afterwards the part he had taken in the criminal prosecutions. But they wait until the panel is full, and accepted by them, and then raise an objection, not to Davitt's continuing to act further in the case, or that the panel selected be discharged and a new one obtained without his aid, but they object to the swearing of the jury, or the giving of any testimony in the case. They seek to stop the proceeding, and secure a discontinuance of the case, because of a participation therein by Davitt, to which they at the time made no objection. If, when they pleaded to Davitt's declaration, he had taken part in the criminal proceedings, their plea was a waiver of any objection they might have to his commencement of the suit; and, if they found it out later, it was their duty to move at once. In my opinion, they waived by their acts all legal objection, if there was any, to the commencement of suit by Davitt, or his participation in selecting the jury. In any event, I am not prepared to say that my Brother SHERWOOD is not correct in his view of this matter; but I prefer to reserve my opinion upon the question of Davitt's legal right to participate in the trial of this cause, had such right been questioned at a seasonable time, and in the proper manner.

In relation to the testimony of James B. Walsh, it appears that he was called by the plaintiff, and gave testimony upon his direct examination of what the defendant Barry said to a meeting of men on the evening of the tenth of July, the day before the occurrence at the mill of the plaintiff. The defendant's counsel, I find, were permitted to cross-examine the witness fully as to all that Barry said in his speech that night. But the counsel undertook to go further, and asked this question: "Question. Did you hear the speech delivered by Barry on the forenoon of the 10th? Answer. Yes." Then the following question was propounded: "Do you remember what he said to the men that day about observing the law, if anything?" This was objected to by plaintiff's counsel as calling for a statement of the defendant to be used as evidence in his own favor, and as being no part of the cross-examination, as plaintiff had introduced no testimony of this forenoon meeting, or what was said or done there. This appears, from the record, to be a good objection, and the question was properly ruled out. The plaintiff had given no evidence in relation to this meeting, and therefore what Barry said there was not admissible, at least at that stage of the proceedings. I am fully satisfied that the defendant Barry had no right to lead a gang or mob of men upon the premises of defendant, to interfere in any manner or to consult with the men who were in the employ of plaintiff. If he did so, he must be held responsible for their acts of violence, notwithstanding that he halted them 200 feet from the mill, and told them to remain there until he came back. The trouble with Barry's case is that he had no business himself upon the premises of plaintiff for the purpose that he admits he was there. It was none of his business whether the men working for plaintiff were satisfied to work 11 or 11 1/2 hours per day or not. The real animus of his visit was, as can plainly be seen, to induce the employes of plaintiff to join the men already gathered in a strike for 10 hours. Whatever right he may have had to influence these men to quit work, unless the 10-hour demand was acceded to by their employer, while they were not at work, he certainly had no right to enter upon the premises of such employer to influence these men while they were at work. He had no license, by custom or otherwise, to enter upon the premises of plaintiff, or into the mill, for any such purpose, and he was a trespasser the very moment he did so. He also well knew the character and intent of the crowd he took with him. He was its acknowledged leader, and, in taking them where he had no right to take them, he became responsible for their acts, whether done by his consent or against his protests.

It cannot be said that Barry, according to his own testimony, was there for any lawful purpose. No man has a right to enter upon the premises of another for the purpose of inducing persons in the employ of that other to leave their employment to the injury of the employer, for the purpose of getting higher wages, or working less hours for the same pay, or for any other reason. The man who so enters is a trespasser. No matter if, by the custom of this free country, license is impliedly given to all persons to enter our private grounds or places of business, that license is nevertheless considered revoked the moment the person so entering interferes unlawfully with our rights or our property. He then becomes a trespasser ab initio. Much less can he lead a crowd of 200 men upon my premises, and then excuse himself for their wrong-doing because he told them not to injure my property, when the avowed purpose of their entrance was to interfere between the men in my employ and myself. A crowd of this size is liable at any moment to become a mob, and an excited mob can seldom be controlled by any one. Even their leaders become powerless ofttimes to prevent, not only the destruction of property, but the shedding of blood. Mr. Barry must suffer the consequences of his ill-advised and unlawful entrance with this body of men upon the premises of plaintiff, who has a right to be protected in his property, and to be recompensed for the damages he has suffered.

It does not help the laborer to countenance such acts as these. The unlawful interference with the rights of others, and the destruction of property, cannot aid any one. The law cannot be taken in our own hands to remedy our wrongs by inflicting wrongs upon others. He who goes outside the law to obtain his rights, whether fancied or real, will find in the end that the law he has spurned or violated will yet, and in justice, compel him to respect it, by taking from him what he has gained in disregard of it, and forcing him to recompense those he has illegally damaged by his conduct.

The judgment should be and is affirmed, with costs.

CAMPBELL, C.J., and CHAMPLIN, J., concurred.

SHERWOOD, J., (dissenting.)

This suit is an action of trespass, brought by the plaintiff against four defendants in the circuit court for the county of Saginaw. The plaintiff in July, 1885, as trustee, was in possession of a steam saw-mill and salt-block on Saginaw river, known as "Wickes Mill and Block," and was at that time operating the same, and for that purpose had in his employment 60 or 70 men. The property was used for the manufacture of lumber and salt. It consisted of a saw-mill gang and circular saws, with a capacity of 100,000 feet per day, and the salt-block, with a capacity of 125 to 130 barrels per day. The mill is reached from First street, in East Saginaw, by a private road leading to it. Connected with the property is a planing-mill, located some distance from the saw-mill, and between which there is a private way crossing a bayou by a bridge about 800 feet long. On the eleventh day of July, 1885, the mills and salt-block of plaintiff were in full operation, and in good running order.

The plaintiff's declaration is in two counts.

The first count, after stating the kind and situation of the property injured, and that defendants entered unlawfully and with force, together with 200 other persons with whom they were acting in...