Botkin v. Miller , 190 Mass. 411 ( 1906 )

Loring, J.

[After the foregoing statement of the case.] The bill of exceptions is very meagre, and there is no statement in it that it contains all the material evidence. Under these circumstances it is proper to have recourse to the charge of the presiding judge, which is made part of the bill of exceptions, in order to understand the case before the court.

In his charge the presiding judge, after telling the jury that the loss of business was too remote,proceeded as follows: “Now, so far as the disturbance of that evening is concerned, the plaintiff is quite right in saying that if the defendants took part in that disturbance, if there was a disturbance and the defendants took part in it, it is immaterial what their motive was, whether it was a religious motive or what it was ; that no body of men have a right by force to impose their views upon any other body of men, by compelling them to close their shops. And if these defendants, or any of them, took part in acts of violence and acts of trespass upon that night, they are responsible. And that is the question for you to consider, whether they did or whether they did not.

“ It is contended on the part of the plaintiff that there is evidence tending, if believed, to show that the defendants, or some of them, made use of incendiary language on that night, and that various missiles were thrown into the open door of that shop, such as banana skins and lumps of mud, and I think a brickbat; that various people went into the shop and jostled the barbers while engaged in their business. It is not contended, and I do not understand that there is any evidence that there was any very great material damage done to the furniture, fittings of the shop. I do not understand that it is claimed that any glass, for instance, was broken or that any furniture was broken ; and it appears that the shop did, in fact, keep open that night until the usual hour, and that it was opened on succeeding days. There is no evidence that if any threats of violence were made against the proprietor of that shop he was so far intimidated by them as to abandon his shop and refuse because of fear to keep it open on subsequent dates. The evidence offered on the part of the policemen who were called there is that they found a gathering of women and children upon the sidewalk nearest the shop ; that they found a gathering of men upon the opposite sidewalk or in the street; that they saw no evidence of a disturbance inside of the shop, and I think they say they saw no evidence of violent acts or violent speech outside the shop; that they ordered the group to disperse and it dispersed, and then the officers went home. The evidence offered upon the part of the defendants is that they were returning from their place of worship, through that street, one of them lived across the street; that they saw this gathering; that they saw no violence and that they took part in no disturbance. Now, gentlemen, it is obvious in this case that there is a considerable conflict in the testimony, and it is for you to resolve that conflict.”

1. In our opinion, the evidence admitted against the objection and under the exception of the plaintiff was competent (first) on the question of liability, and (second) on the question of damage. It was competent in connection with the defendants’ story that they found the crowd opposite the plaintiff’s shop as they were returning to their homes from worship, and that they took no part in any disturbance. The evidence explained the crowd’s being around the plaintiff’s shop, if the defendants’ story was true. We think it competent also on the question of damages, as an explanation of the plaintiff’s loss of business.

2. The ruling of the judge as to loss of business was in our opinion correct. The plaintiff did not go far enough to show that this disturbance was the cause of his loss of business. It lasted not more than an hour; it did not in fact cause the shop to be closed that night, and “ there is no evidence from any customer that he ceased to trade or to do business in this shop, because of fear that this disturbance of that night would be repeated.” See in this connection Zinn v. Rice, 161 Mass. 571. On the evidence in the case it is at least as likely that the loss of business came from his customers of the Jewish faith leaving him for keeping open shop on a day when no business is done by Orthodox Jews. See Crowell v. Moley, 188 Mass. 116.

We find nothing in the other cases cited by the plaintiff to the contrary. Marsh v. Billings, 7 Cush. 322. Carew v. Rutherford, 106 Mass. 1. Morasse v. Brochu, 151 Mass. 567.

Exceptions overruled.