Wagner v. Haak , 37 W.N.C. 173 ( 1895 )

Opinion by

Mr. Justice Dean,

On the 9th of May, 1892, Julius Wagner, the plaintiff, was assaulted and severely beaten by Samuel Kupp and Calvin and Jacob Epler. Wagner averred the beating was the consummation of a conspiracy between Aulenbach, the defendant, and others. Wagner was a contractor and builder, and had erected a large number of houses at the outskirts of the city of Reading, next to the Neversink mountain; sand for building purposes was obtained by him and other builders from a bank or quarry at the foot of the mountain ; in hauling it to the buildings, the teams usually went by way of Thirteenth street; Aulenbach had leased the sand bank from the Haak estate, the owner; he in turn leased it to Epler and Davis, who on the day of the assault were operating it; Epler and Davis, in getting to Thirteenth street, used a roadway over open fields, and which passed near some of Wagner’s houses; the roadway was owned by Wagner, but for some time before Epler. and Davis had been using it with their teams to get into Thirteenth street; Wagner had objected to this, and denied their right, but this, not stopping them, he erected a fence across the way ; on the day of the assault the two Eplers and one Kupp drove their teams over the way until stopped by the fence; they then with axes cut it down; Wagner, in trying to prevent them, received at their hands a severe beating; Aulenbach did. not actively participate in cutting down the fence, or in beating Wagner, — in fact, was not present. The plaintiff alleged the tearing down of the fence and the beating were in pursuance of instructions by Aulenbach to those who did both, therefore their joinder of him in the action for damages. Aulenbach denied any connection with the unlawful acts of the others. The court, being of the opinion there was evidence tending to establish answer-ability for the assault as against Aulenbach, submitted it to the jury, who found for the plaintiff as against Aulenbach, Kupp and the two Eplers, in the sum of $880 damages. From the judgment entered on this verdict Aulenbach appeals, assigning two errors; the first, to permitting the alderman to testify that .at the preliminary hearing before him, one of the Eplers had admitted that Aulenbach told him to tear down the fence, no matter what it cost; the second, to the denial by the court of defendant’s second point, which was that: “ Under all the evidence in the case, the plaintiff’cannot recover against Frank Aulenbach, one of defendants.”

There is no copy of plaintiff’s statement printed in either of the paper-books, but we infer, from the course of the trial and charge of the court, the action was solely for damages to the person of plaintiff, resulting from the beating. The last words of the charge to the jury are: “ If you ascertain there was no assault and battery, why of course the verdict will be for defendants. If you ascertain there was an assault and battery, under the instructions I have given you, then you will proceed to assess the damages as I have indicated.” So plaintiff’s claim, distinctly, was for damages for the battery; nothing was claimed for tearing down his fence. It was conceded at the trial that Aulenbach was not present, but plaintiff alleged he directed the Eplers and Kupp to do what they did. No one questions the elementary rule that he who directs or procures a trespass or misdemeanor to be committed is answerable with ■those who actually oommit it; but here were two distinct acts, either or both of which may have been wrongful: 1. The chopping and tearing down of the fence. 2. The assault upon Wagner. If the fence were lawfully put there by Wagner, as he claimed, it was a trespass to tear it down; if it were an ■unlawful obstruction of Aulenbacli’s way, as he claimed, he had a right to remove it; and the beating might have been unlawful, whether the fence was rightfully or wrongfully there ; if rightfully, they could not beat Wagner before removing it, to disable him from interference; nor after removing it, in revenge for his interference; nor, if wrongfully there, could they use excessive force and violence while in the act of removing it. Unless Aulenbach directed the unlawful act, the beating here complained of, or such direction can be reasonably implied from his directions to remove the fence, there was no evidence from which the jury could find him answerable in damages.

After a careful perusal of the testimony in the paper-books, we fail to find anything which would warrant a belief that Aulenbach advised an assault upon Wagner, or which would warrant an implied direction to assault any one. He lived on Perkiomen avenue, not near the point in dispute; when the Eplers were stopped by the fence, Jacob Epler and Kupp went to Aulenbach’s residence, and told him of the obstruction; Aulenbach went immediately to see Morris, a representative of Haak, from whom he had leased the quarry; he soon returned, and told Epler that Morris said they should move the fence away the best they could. Kupp stated that Aulenbaeh told him that Morris said they should tear the fence down. • The testimony of Wentzel as to the declaration of Epler at the hearing, that Aulenbach told them to take it down and he would stand by them, was admissible, only in so far as it tended to contradict Epler; it was inadmissible, as direct evidence against Aulenbach, because made at the hearing in the magistrate’s office, three days after the consummation of the alleged conspiracy. The declarations of a coconspirator are evidence against the others, only as long as the conspiracy continues; if made afterwards as were these, they are not evidence : Wharton’s Law of Evidence, sections 1205, 1206, and notes. But even if admissible to sustain the charge directly against Aulenbach, they are no more significant than the testimony of the other witnesses. Wentzel states that Epler said “ he was ordered to go through and tear the fence down, no matter what the costs, — that he would stand by him.” Aulenbach testifies positively that all the instruction he gave was that Morris said they could drive through, that Wagner had no right to put the fence there. But, take his instruction in the most favorable view to the plaintiff any of the evidence warrants, it was nothing more than to tear down the fence, and he would stand by them; this was in the belief of a right to do so; but whether this belief was well or ill founded, it would warrant no implication on the part of Epler and Kupp, or on part of the jury, of instruction to commit assault and battery. The removal of the fence might be a trespass, and the language plainly implied that if it turned out to be so Aulenbach would stand by them; in other words, would save them harmless; and this is the most it did imply.

The defendant’s second point should have been affirmed, and the jury instructed the evidence did not warrant a verdict against Aulenbach.

What we have said also disposes of appellant’s second assignment of error. The judgment is reversed as to Frank Aulenbach.