Holden v. Carraher , 195 Mass. 392 ( 1907 )

Hammond, J.

One of the grounds of the defence was that the plaintiffs, in company with Daly, were conducting themselves improperly as guests of the hotel, and that the defendants properly refused to serve them further and ordered them to leave the hotel; that the plaintiffs after such order refused to leave, whereupon the defendants, after a proper time, using no more force than was reasonably necessary, ejected the plaintiffs. The evidence although conflicting would have justified a finding for the defendants upon this point. In' this state of the evidence the defendants requested a ruling in each case that “ if the plaintiffs wrongfully refused to leave the defendant’s premises when requested, the defendant and his servants then had a lawful right to remove them and their resistance to such removal was unlawful.” We do not understand this to be a statement that the plaintiffs did resist, but that the request simply means to say that resistance in such a case on their part would be unlawful. As so interpreted the request properly states the law, and was applicable to a reasonable view of the case upon the evidence. Upon this point the judge instructed the jury as follows: “ Now it is claimed here on the part of the defendants, that there was a justification, as I have said before. When you are dealing with the question of their justification, the burden of proof then rests upon the defendants. They come in with an affirmative proposition now, to satisfy you that they were justified in interfering with the personal liberty of the plaintiffs in interfering with their person. And they must satisfy you by a fair preponderance of the evidence that they had the right to remove these plaintiffs by force. That is, if the defendants saw fit to deny these plaintiffs any further accommodation as guests; if they acted as they saw fit in connection with a proper discretion to deny their remaining there any further, then it would be a duty imposed upon the defendants to give them proper notice and a reasonable 'time in which they should remove or retire from the hotel. They would not be entitled to lay their hands upon the plaintiffs until such notice was given and a reasonable time granted for them to retire. Then, if the plaintiffs saw fit to conduct themselves in a disorderly manner or in such a manner that they were no longer proper guests of the hotel, if you should find upon all the evidence in the case that these plaintiffs were then intoxicated, or in such a state of intoxication that it was not proper for them to remain there, and proper warning was given to them to retire and they failed to do so, then the defendants would have the right to use a reasonable degree of force to remove them from the hotel.” This language seems to imply that, even if the defendants had the right to order the plaintiffs out, still they could not proceed to expel them by a forcible laying on of hands- unless the plaintiffs were still conducting themselves in a disorderly manner, etc., as stated in the last sentence above quoted. And the jury may properly have so understood it. It is far short of the statement of the law contained in the seventh request. The manner in which this request was treated was prejudicial to the defendants. For this reason the order must be

Exceptions sustained.