Wall v. . Lee , 34 N.Y. 141 ( 1865 )

The defendants were sued for a trespass and assault and battery, in attempting to remove the plaintiff from a Catholic church in East Bloomfield, of which the defendant Lee was the pastor or minister. The facts appearing on the trial were, that the defendant Lee, in his sermon, had commented upon a dance which had been held in the vicinity of the church. He had made no allusion to the plaintiff or any other person. Before the services were closed, and while a collection was being taken up, the plaintiff rose in his pew, which he had hired of the defendant Lee, as priest (the title of the church being in the bishop of the diocese), and in a loud voice demanded of the defendant Lee an explanation of his remarks about the dance, and wished to know his author. Lee told him to sit down, to which plaintiff replied he did not think he ought to. Lee then told him to sit down or go out. The plaintiff said he would not sit down or go out. The defendants then took hold of him and endeavored to pull him out, but the plaintiff resisted, and the effort to remove him was abandoned.

A motion for nonsuit was made and denied, and the defendants excepted. The jury, under the charge of the judge, found a verdict for plaintiff of $200, and judgment thereon was affirmed on appeal. The judge, among other things, charged the jury, that in order to justify the removal, or attempt at removal, it must be made to appear that the person so forcibly removed, or attempted to be removed, was guilty of willfully disturbing such meeting. This portion of the charge was excepted to by the defendants' counsel, and also several other portions of the charge, not now necessary to advert to.

The learned justice, before whom the action was tried, commenced his charge to the jury by a reference to the provisions of the Revised Statutes of this State (1 R.S., 174), and correctly stated to the jury that the statute had made willful disturbance of any assemblage of people for religious worship, by profane discourse, by rude and indecent behavior, or by making a noise within the place of worship, or so near as to disturb the order and solemnity of the meeting, an offense punishable by fine, upon conviction thereof before a magistrate. He also informed the jury, that in every congregation assembled for religious worship, or any other meeting assembled for a lawful purpose, there must necessarily exist the power to preserve order, and to expel and to remove by necessary force any person guilty of a willful disturbance of such meeting, who should persist in such disturbance so that it could not be conducted in an orderly and proper manner. This latter proposition was undoubtedly sound, and fully sustained by authority, if the qualification of willful had been omitted. That would have been eminently proper if the plaintiff had been on trial for the offense, as declared by the statute; but a careful examination of the authorities, from which the principle enunciated in the charge is derived, furnishes no warrant for the remark that the disturbance must be willful to justify those who seek to remove the offender. If the person is guilty of disturbing the meeting and interrupting its order and decorum, then the application of such force as may be necessary to remove him may be justified. These principles are abundantly sustained by authority. (Holmes v. Bugge, 18 Law and Eq., 406; Thomas v. Marsh, 5 Carr. P., 596; Hanna v. Rust, 21 Wend., 149; Collier v. Hicks, 2 B. Ad., 663; Brown v.Gerdue, 1 Gray, 182; Moriarty v. Brooks, 6 C. P., 684;Howell v. Jackson, id., 723; Hibbard v. N.Y. and Erie R.R.Co., 15 N.Y., 455.)

In the case of Howell v. Jackson, PARKE, J., told the jury that if a man comes into a public house and conducts himself in a disorderly manner, and the landlord requests him to go out, and he will not, the landlord may turn him out. There was no doubt that a landlord may turn out a person who is making a disturbance in a public house, though such disturbance does not amount to a breach of the peace. To do this the landlord may lay hands on him, and in so doing the landlord is not guilty of any breach of the peace. The ground of justification for the removal of a person who seeks to interrupt or disturb the order and proceedings of others, is that they have the right to the quiet and orderly enjoyment of any lawful business, pleasure or occupation. An intruder has no right to disturb or interrupt, and if he does, it is lawful to remove him and thus restore quiet. In the case of Holmes v. Bugge (supra), Lord CAMPBELL held this right to rest in eleven cricketers who were lawfully playing at cricket, and that when it appeared that a space was tabooed, that no person could properly come there, and that as the plaintiff did come within the tabooed part, and was requested to withdraw and did not, he might lawfully be removed. In the case of Thomas v. Marsh (supra), it was held that the stewards of a musical festival had such possession of the hall where the festival was held, as would justify them in removing an intruder. The plaintiff was making a great noise and disturbance, and Mr. Justice PARKE ruled that the stewards having possession of the hall for the purpose of the festival, must be taken not only to have the use of the rooms but the avenues, for, said he, if they had not a right to keep out improper persons, it would be no use for them to have the hall. The only question, therefore, was, whether the defendants used unnecessary violence in removing the plaintiff, as they had authority to use such force as was necessary to turn him out. Hanna v. Rust (supra), was an action of trespass, and assault and battery, and the defendant justified the assault on the ground that the plaintiff was making a noise and disturbance in his house, that he was requested to depart, and on his refusal so to do, the defendant laid hands on him gently to remove him.

Collier v. Hicks (supra) was trespass for assaulting the plaintiff, and turning him out of a police office. Two of the defendants were justices of the peace, assembled at the police office, in the transaction of business, and the plaintiff was present, and insisted upon his right to take part in the proceedings as an advocate, and to take notes. The justices directed the other defendants to remove the plaintiff; and for this assault the action was brought. The defendants plead that the plaintiff, in contempt of the justices, and to the disturbance and violation of due order and decency in the administration of justice, and to the hindrance thereof, maintained his right to be present, and to take part in such proceedings; whereupon the defendants, the justices, ordered the other defendants to turn the plaintiff out of the police office, and they, in pursuance of such order, did expel him therefrom into the public street, as they lawfully might. To this plea, there was a general demurrer. The demurrer was overruled, and the defendants were justified in committing the alleged trespass.

In Brown v. Gordon (supra), the judge charged the jury that, if they believed the plaintiff was wrongfully in the passage-way mentioned, and that he refused to leave, after being requested to by the defendant, the latter had a right to remove him, using no more force than was necessary for that purpose.

In Moriarty v. Brooks (supra), it was held that, in an action for an assault, if the defendant plead that he was possessed of a public house, in which the plaintiff was making a disturbance, and that, upon the plaintiff refusing to depart, the defendant was justified in laying hands on him and turning him out.

Howard v. Jackson (supra), held, that if a person conducts himself in a disorderly manner in a public house, and the landlord requests him to depart, and he refuses to do so, the landlord is justified in laying hands on him to put him out; and if, while the landlord has hold of him to put him out, the person lays hands on the landlord, this is an assault.

In Hibbard v. New York and Erie Railroad Company (supra), this court held, that a railroad corporation was justified in ejecting a passenger from its cars, who refused to conform to a regulation of the company, requiring every passenger to exhibit his ticket to the conductor, when demanded.

It is thus seen, that, in this numerous class of cases, the nonconformity with the rules and regulations prescribed by those who had lawful authority and the right to make them, was held a justification for the removal of the person refusing compliance, and thus creating a disturbance. The fact of disturbance, and refusing to depart upon request, were the essential and only elements necessary to a justification of the trespass and assault. There is not an intimation, in any of these cases, that the disturbance must be willful; and no such qualification of the offense has ever been deemed requisite to justify the removal, or attempted removal, of the offender. The precedents of pleas contain no countenance of the idea, that the noise or disturbance, which justifies the molliter manus imposerit to turn the offender out, must be willful. (3 Chitty on Pl., 1073-1075.) There was no warrant, therefore, in that part of the charge of the learned justice to the jury, that, to justify the removal, or attempted removal, of the plaintiff, they must be satisfied that he was guilty of a willful disturbance of the meeting. If it had been a proceeding to convict the plaintiff under the statute, then this rule of evidence would have been appropriate; and the error of the learned justice consists in the position that the same evidence was requisite to justify a removal, or attempted removal, as would have been required for a conviction under the statute. I think there was, also, error in that part of the charge which instructed the jury that the minister, or priest, had no greater right to use force than any other member of the congregation. In one sense, perhaps, this may be correct, namely, that any other member of the congregation had an equal right with the minister, or priest, to use force in removing a disturber of the peace and order of the meeting. But usage and custom have made it peculiarly the duty of the minister, or priest, to conduct the services of religious meetings, to preside over them, to preserve order therein, and act as the organ or spokesman of the congregation.

The guaranty of the Constitution of the United States of the free exercise of religious opinion, and the rights of the people peaceably to assemble and petition for a redress of grievances, would be but an idle mockery if meetings convened for such purposes can be invaded and disturbed with impunity. Religious meetings would lose all solemnity and usefulness if turned into halls of disputation, and any and every one could call upon the minister for explanation of his sermons, or be permitted to engage in controversy with him pending the services. Such exhibitions would be most unseemly, and convert our churches into arenas for controversy and ill-feeling. It is most appropriate that the minister or priest should preserve order and rebuke all violations of it. As the acknowledged presiding officer of the meeting, it is his duty to check all attempts to interrupt its order, quietness and solemnity, and for this purpose he unquestionably has full power and authority to call upon others to aid him or direct them to remove the offender. In this sense, therefore, he has a greater right to enforce order and use force for that purpose, than any other member of the congregation.

The motion for nonsuit was properly denied, as it was a question of fact for the jury whether any unnecessary violence was used. Force sufficient to remove the plaintiff would have been justifiable, but any excess of force or unnecessary violence could not be justified.

Judgment must be reversed and a new trial ordered, costs to abide the event.