Fraser v. Freeman

By the Court, Brady, J. The'death of the deceased was the result of a determination on the part of the defendant to use the basement under the premises occupied by the former, and to approach and obtain access to it through such premises, which he had an apparent right to do. This determination, however, was formed and attempted, although the defendant was advised that the deceased disputed his right to do so, and would resist. In order to accomplish his design, he called to his assistance ¡Ryan and Mullady, and asked the latter to go in with him and fight it out. The three were armed. The defendant had a crowbar, Ryan a hammer, and Mullady a pistol. The defendant knew this. He led the expedition, which meant force, if force was necessary, regardless of the law, which required that he should desist from enforcing a right, if such a proceeding would lead to a breach of the peace. He nevertheless carried out his intention. He was advised by Ryan that the deceased had closed the door leading to the basement, and would not let him pass, before he entered, followed by Ryan and Mullady. He approached the deceased, who was seated, and engaged in making some preparation for his day’s business. He [247] wanted to go down to the basement. The deceased, acting upon the advice of his landlord, as the defendant knew, denied his right to do so, and remonstrated with him, telling him that he could not pass that way. He said he would, and raising the crowbar with both hands, struck with it at the head of the deceased, but the latter, by a movement of his head, averted the full effect of the blow. “It came down,” nevertheless, to use the language of one of the witnesses, and one entirely disinterested, “on the back of his head and on his shoulder, and made him stagger.” The deceased then started for the front door, and in a position indicating that he was injured, and when near it was shot by Mullady. Mullady was not in danger from the deceased, although he may have thought so, as appears from his own statement, and he surely was not at all in danger, as the evidence disclosed. What induced him to fire upon the deceased, unless it was in harmony with the general design of “ fighting it out,” for which he was invited to enter the deceased’s place of business, and which project the defendant initiated, it is difficult to conjecture. He said that he did it because the deceased was approaching him, having a knife, as he supposed, and also that he did it to protect the defendant and his property, and for no other purpose; that he never had anything against the deceased. -It is true that although what he said in exculpation of what seems to have been a wanton and unjustifiable act, may be justly regarded with great suspicion, yet as he was one of the defendant’s employees in a deliberate plan to accomplish his purpose by unlawful means, the latter cannot reasonably complain if the jury, as they seem to have done, placed confidence in the statement given by him. The theory of the defense, in reference to the killing of the deceased, seems to have been that the defendant, although he put Mullady in a position where he might use violence on his behalf, and where he was invited to [248] employ it, is nevertheless not responsible if Mullady did any willful act by which the life oí1 the deceased was taken ; and we are asked to entertain propositions in reference to the act of Mullady, in shooting the deceased, which are of the criminal law, and properly applicable to trials for murder or manslaughter. The plaintiff’s right to recover does not rest on such distinctions. The defendant and his servant were tort feasors. They unitedly engaged, and engaged deliberately, in a determination to obtain by force, what should have been accomplished through the tribunals of the State. When the defendant was advised by the deceased that h¿ could not be permitted to do what he designed to do, it was his duty to "retire at once. He did not do so. On ■the contrary, he undertook, against the will of the deceased, and by force, to carry out his design, and by that proceeding became a wrongdoer. He invited the ffght which he asked Mullady to see out, and initiated a disturbance, the consequences of which, as far as the law may allow, should be visited upon him. Accepting the statement of Mullady, one of the results of the defendant’s violence was an impression in his mind, arising from the conduct of the deceased after he was assailed by the defendant, that he was in danger of bodily harm, and if such was the fact, his act in firing upon the deceased was, even if willful, but one of the consequences of the enterprise in which he had engaged at the solicitation of the defendant. He went on to fight it out He went on with a pistol which the defendant knew he had, and violence by him, either by the use of the pistol or any other weapon, in the melee which the defendant created, was, in my judgment, so far as the defendant’s liability in this action is concerned, fully within the employment of Mullady when used against the deceased, whose vanquishment was the object of the defendant. "We cannot limit the responsibility of the master under circumstances such [249] as are disclosed by the evidence herein, to any more precise extent than will be defined by declaring that if the act complained of was the possible result of the employment, he must answer for the act done. (Althof v. Wolf 2 Hilt. 344, and cases cited. S. C., 22 N. Y. Rep. 355.) If a person, therefore, asks another, already in his service, to assist him, and to do it by fighting an adversary named or known, in order to accomplish some purpose, though lawful in itself and connected with the service, as in this case, he must respond for the act of the servant, because he has enlisted him to commit acts which otherwise might be held to be willful, and without the line of duty or the service for which he was employed. Whether the deceased was guilty of any negligence, by forcibly resisting the defendant’s ingress to the basement, or otherwise, was left to the jury, and found in favor of the plaintiffs. It was clearly not negligent in him to assert in a peaceable manner his rights, actual or presumed, in the absence of evidence showing his assertion to be a mere pretense made, or maliciously declared, with a design to provoke violence. Such elements do not appear in this case. These conclusions render it unnecessary to comment further upon the testimony in this remarkable case, and from which it appears that the defendant claimed to have “settled” the deceased with the crowbar before he was shot by Mullady, and also to have endeavored to provide for the safety of Mullady from criminal prosecution. The charge of the presiding justice covered the legal propositions involved in this case, and the requests to charge which were granted, gave the defendant the benefit of such distinctions and qualifications as he was entitled to. Those refused were properly denied, and the exceptions taken to such denials are unavailable. The charge was as favorable to the defendant as the facts and circumstances warranted, and one to which no exception has been taken that can enure to his benefit. [250] [New York General, Term, April 4, 1870. The action is brought under the statutes of 1847 and 1849, (Laws of 1847, p. 575; Laws of 1849, p. 388,) which provide that whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to -maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although such death shall have been caused under such circumstances as amount in law to felony. Is there any doubt that had not death ensued, an action could have been maintained against Ryan, Mullady and the defendant, fór the trespass committed by them ? They were certainly wrongdoers, and severally liable, if they attempted, by force, to obtain ingress to the basement, which was disputed territory, (Livingston v. Bishop, 1 John. 290; Rose v. Oliver, 2 id. 365; Bishop v. Ely, 9 id. 294; Low v. Mumford, 14 id. 426; Whart. Am. Crim. Law, §§ 2474, 2485;) and that they did so has been established by the verdict of the jury. If the defendant was not justified in entering as he did, with strong hand and by violence, the persons who assisted him could not have been. They had less right than their master or leader, and assumed the consequences of their unlawful enterprise. • In all the views thus taken of this action, it seems to be clear that the defendant was properly charged with the consequences of Mullady’s act, as a result of the improper proceeding which he set on foot, and in which he asked Mullady to assist. I think the judgment should be affirmed. Judgment affirmed. Ingraham, Geo. G. Barnard and Brady, Justices.]