Wall v. . Lee ( 1865 )

When the evidence given upon the trial of this action, on both sides, was closed, there was no fact for the jury to pass upon, except, it might be, to assess the plaintiff's damages, if he was entitled to recover; for the evidence left no fact in controversy between the parties. The witnesses, as well for the defendants as the plaintiff, substantially concurred in their statements; so that the sole question upon the issue formed by the pleadings was presented to the court upon the defendants' motion that the plaintiff be nonsuited. It was the privilege of the defendants to make this motion, and take the judgment of the court upon the right of the plaintiff to a verdict, as well in this form as in any other. The motion distinctly presented the question of the plaintiff's right to maintain the action; and, when it was denied, its effect was, to declare to the jury that, upon the facts sworn to by the witnesses, the plaintiff was entitled to his verdict. His right to such a verdict, I now propose to examine.

The place where the alleged assault and battery was committed, was within a Roman Catholic church edifice, in East Bloomfield, in the county of Ontario. The plaintiff is a member of the congregation worshiping there, and also a pewholder. The defendant, John Gorman, is also a member of the same congregation. The defendant, Patrick Lee, is a Roman Catholic clergyman, and pastor of the church. He rents out the pews, conducts the religious services, and has the exclusive charge of the church edifice, the title to or right of property in which is in the Roman Catholic Bishop, John Timon, of Buffalo. The proof does not show the existence of trustees, vestrymen, or wardens, having a right to control the church and preserve order; and I therefore infer that such officers are unknown to the Roman Catholic organization. On Sunday, the 30th day of August, 1857, there was divine service in the church, conducted, as usual, by the defendant, Patrick Lee. In the course of his sermon he alluded, without naming him, to some member of the congregation, who had young ladies at his house, and drinking and dancing, on Saturday night, which lasted until some time into the morning of Sunday, and that some of the party became intoxicated. These revels and practices the preacher reprehended and condemned, as unworthy practices and pastimes. When the sermon was closed, and before the congregation was dismissed, the defendant, Patrick Lee, came down from the pulpit, or altar, to take up a collection for an addition to the church edifice. The practice seemed to be, for the pastor to call upon each member of the church in his seat and personally solicit his subscription or contribution. At this time the congregation were seated. The pastor came to the plaintiff's pew, and solicited his contribution. The plaintiff immediately rose from his seat, and, in a voice louder than usual, began to interrogate the defendant in regard to what he had said about the dancing, and that what had been said was false, and demanded the name of the defendant's informer. The defendant requested him to sit down or go out of the church; to which the plaintiff replied, he would not go out for him or any other man, until he got an explanation. The defendant again told him to sit down, and he said he would not. Grogan, one of the witnesses, says that the occurrence attracted the attention of the whole congregation, and he told the plaintiff he would be put out, as he was annoying the congregation. The defendant Lee then took him by the collar of the coat, and attempted to put him out, and failed. He then called for aid to remove the plaintiff from the church, and the defendant Gorman came to his assistance. Both of them took hold of the plaintiff's coat collar and endeavored, by pulling him from the pew, to remove him from the church. The plaintiff resisted, and they were unable to effect their purpose, and so desisted. There was no striking, and the force employed was inadequate to remove him.

This is the whole case upon the evidence. Was the plaintiff's conduct disorderly, and his behavior rude and indecent? "No person shall willfully disturb, interrupt or disquiet any assemblage of people met for religious worship, by profane discourse, by rude and indecent behavior, or by making a noise either within the place of worship, or so near as to disturb the order and solemnity of the meeting." 1 R.S., 673, § 64. One would think there could be no difference of opinion upon the character and tendency of the plaintiff's conduct. That he was the lessee of the pew cannot avail him as a defense, if he violated the decency and order due to the occasion. The grant of a pew in perpetuity does not give the owner an absolute right of property. He has only a qualified interest; the use of the pew for the purpose of sitting therein to hear divine service, and also at meetings of the society held for temporal purposes. (Baptist Church in Hartford v.Witherell, 3 Paige, 296.) He cannot use his pew as a place from which to interrogate the clergyman and fix a quarrel upon him, or in any way interrupt the services, or to impede or interfere with charitable or other collections taken up from the congregation assembled for religious worship. He is as much bound at these times to preserve order and decorum as a mere stranger or casual hearer. In the present case the plaintiff claimed and insisted upon his right to rise up from his place, while all others were silent and seated, and interrogate the pastor in a loud voice as to a portion of his sermon, saying what had been said was false or based on information which was false. When requested to resume his seat or leave the church, he defiantly refused to do either. I submit that this act was disorderly and subversive of the solemnity and decorum due to the occasion and the place, and that it brought the plaintiff plainly within the meaning of the provision of the statute which I have quoted. What the plaintiff might lawfully do others might do also, and had others claimed and exercised the same privilege as the plaintiff, the assemblage would have resembled anything else rather than a meeting for religious worship. But more than all this, there is a certain degree of respect and consideration due to the office, if not to the person of a clergyman, essential to his usefulness, which all good men are willing to accord, however widely they may differ with him in opinion upon subjects of religious belief. This mark of consideration is more especially due to him upon the Sabbath, and within the walls of his own church edifice. Were such a man exposed to interrogation upon the subject of his teachings, or the words he had uttered as he descends from his pulpit, he would soon lose the consideration due to his office as well as to his person, and his usefulness as a public teacher would be gone forever. It has been suggested in justification of the plaintiff that at the time of the occurrence the religious services in the church were closed. This suggestion is not sustained by the evidence. The sermon had ended and the collection was being taken up, but the congregation had not been dismissed. The proof did not show what was the custom in this particular church, but we may venture to take notice, that some of the Protestant churches take up their collection in the middle of the services, some towards the close, but none of them before the benediction or final invocation for the divine blessing. I do not, however, regard the suggestion, if it were true in fact, of any value. The act of disturbance is within the statute, if the assemblage has met for the purposes of religious worship. The religious services need not have been actually in progress. No question was made upon the trial as to the right of the defendants to use sufficient force to remove the plaintiff, provided he was in the act of creating a disturbance. It was peculiarly the province of the defendant, Patrick Lee, to cause his removal, and to claim the aid of other members of the congregation in his effort, for there were no trustees, wardens, vestrymen or other officers to do it, and he opened and closed the church edifice, conducted the religious exercises, and had exclusive control of all that was done. Nor can the degree of force used be open to any dispute. So much as was necessary to remove the plaintiff the defendants undoubtedly had a right to use. The force employed was wholly inadequate to effect that object, for the attempt was abandoned and the plaintiff remained where he was at the time he rose from his seat and commenced the controversy.

The judgment should be reversed and a new trial granted, with costs to abide the event.

All the judges concurring,

Judgment reversed.