Error to the Court of Common Pleas of Cumberland county: Of May Term 1871, No 81.
This was an action on the case for conspiracy, brought August 22d 1868, by Jesse Laverty against Joseph Yanarsdale, William Bender, Simon Pratz, John Roth, John M. Epley, Jesse Kurtz, Samuel D. Holtz, George Bowers, Daniel Stouffer, Martin Renninger and Daniel Pratz.
The declaration charged that the defendants, knowing that the plaintiff’s employment as a teacher enabled him to support his family, but intending to injure him, conspired and combined by false and malicious representations, to petition the board of school directors against him, prevented them from employing him and thus prevented him from obtaining a support for his family by teaching.
The case was tried before and resulted in a verdict for the defendants ; the judgment was reversed by the Supreme Court and a venire de novo awarded (15 P. F. Smith 507).
The petition was drawn by Yanarsdale and signed by himself and all the defendants except Simon Pratz; Yanarsdale procured all the signatures. The petition is in these words :
“August 8th 1868. We, the patrons of school No. 4, take this method to inform the school board of East Pennsborough, that we do not wish them to employ Jesse Laverty as teacher for the coming term, under any circumstances, but we will accept any other teacher that is competent that the board may select. We respectfully subscribe our names, with full confidence that you will grant us our request.”
The cause was tried November 23d 1870, before Graham, P. J.
H. Booser, for plaintiff, testified: “In 1867 and. 1868 I was a school director. School-house No. 4 was under my particular care. Jesse Laverty taught in the winter of 1867. Promised him; knew him ten years; he has been teaching all that time. There was no objection at that time. It was left to me by the board to nominate for that house. No complaint was brought to me while he was teaching for 1867. Joseph Yanarsdale’s son handed the request to me at Banks’ store. I opened the paper, looked at it, and put it in my pocket. Mr. Banks and myself went to the school-house where the examination of teachers was. After the examination had been in session awhile, William Sadler asked me if I had an applicant for my school-house, No. 4. I told him that Eshleman and Laverty had made application. Sadler said, ‘Booser, you can’t give it.’ Banks, William Sadler, Swartz, Jacob Bashore, and myself were the members of the Board present. * * * I had control of school No. 4 as far as the nomination of a teacher was concerned. I appointed Laverty in 1867. There was no action taken on his partin 1868. After presenting the paper and hearing the expression on it, I put it in my pocket, and made no nomination; I made no nomination for the school that day. Simon Shumbarger got the school. * * * I think Laverty received forty dollars a month. The county superintendent was present to examine teachers. The day was August 8th 1868. * * * Simon Pratz didn’t live in No. 4 district at the time. Had a few words in the latter end of May or beginning of June 1868, with Simon Pratz concerning Laverty. He said he didn’t hope I would give that school, No. 4, to Laverty again. He said he had met Laverty on the road, and they had an altercation ; Pratz said Laverty wasn’t fit to teach, or something to that effect. Something about the talk in this altercation on the road, was why he wasn’t fit to teach. He told me they disputed something about the passing, that Laverty didn’t give him the road. None of the signers of the paper came to the meeting of the school board on August 8th. Pratz said that he and Laverty had fell out, and L. wasn’t fit to teach. * * * I told Laverty to be down at Eairview at the school-house where the examination was to be held; he told me he would if he could. * * * No certificate from the proper quarter was laid before the board, in reference to Laverty, that day. Between the examination and the school term, the appointment was made for the school. Laverty made no other application for the school. Did not offer himself for examination.
John Pratz testified: “Vanarsdale brought the paper to my house, and he says, ‘I had a favor done to me the other dayI asked him what. He said Mr. Laverty sent him the sheriff for taxes that was back. Vanarsdale had been tax collector. My woman spoke in and said, 4 Oh, you were the tax collectorand he said, 41 had my pockets picked in Harrisburg, and couldn’t pay the.taxes.’ He pulled the paper out of his pocket and asked me to sign it. I shook my head at it, and told him I thought not. He says, 4 John, one good favor deserves another.’ He said then, 4 if you knew how Laverty used your boy, you would sign this paper.’ I told him the boy stopped off going to school, and the reason we never asked him. He told me that Laverty abused my boy severely, and caught him by the hair of the head and threw him down on the floor. I said then, if Laverty used my boy that way, he should put my name down too. He asked me to write my name down, and I told him I couldn’t, and if he wanted it he should put it there himself. I told him to put the mark there and it would be all right.” * * *
Charles Zimmerman testified : * * * 44 Last winter a year Bender came to me and said he signed the paper on account of the assessment. I said I had no reason to sign it.”
The plaintiff offered the record of suit, County v. Vanarsdale, and judgment No. 62, August Term 1868, to show that suit was brought against Vanarsdale by the county, to be followed by evidence that Laverty had nothing to do with the bringing of this suit, and this with the view to show the conduct of Vanarsdale, and that the reason assigned by him, that Laverty sent him the sheriff, was false.
The offer was objected to by the defendants, admitted and a bill of exceptions sealed.
The plaintiff gave much other evidence in support of the issue on his part.
The defendants gave evidence that the county superintendent held an examination of teachers for school No. 4 in August 1868-; that the plaintiff was not examined; that he received no certificate ; he never applied for one.
They gave evidence also by the school directors to show that they would not have appointed the plaintiff to the school if no remonstrance had been presented; also that the plaintiff had a school at Marysville during the time he was excluded from school No. 4, at a higher salary.
The defendants called Samuel Hume, who testified as follows: “ At the time I had' the talk with Laverty I thought it was only a little joke between us. Laverty asked me if I attended market, and I told him I did not.”
The.defendants then offered to prove by witness that before the signing of the petition complained of by the plaintiff, and as a reason for Yanarsdale signing, he objected to Laverty on account of his moral character, as testified to by Daniel Pratz, one of plaintiff’s witnesses — that Laverty' wanted witness to go with him to a house of prostitution in Harrisburg, that he (Laverty) might be with the fancy women, and have a little sport out of them ; and Laverty gave as a reason for this, that his wife treated him like a brute, and that he was tired being with a damned idiot. That witness and Yanarsdale both spoke of this same thing together afterwards, and he told Yanarsdale that Laverty told him the same thing.
The plaintiff objected.
[Court: The offer is evidence to repel the presumption of malice. If the facts offered were brought to the knowledge of Yanarsdale before paper signed, he may have signed this paper through proper motives; if after he signed, the offer is not evidence, and as defendant says it was before, and the plaintiff says it was after the paper was signed, we must hear the witness as to the time the offer occurred.”
“ Witness: I had no conversation with Yanarsdale till after the suit brought.”
Court: “The offer is rejected, defendants except and bill sealed.”]
The defendants 6th and 7th points with the answers were :—
6. Inasmuch as Mr. Laverty was not examined in 1868, and had not received a certificate according to the provisions of the Act of 1867, to qualify him to teach in 1868, he could not lawfully have been appointed to teach school No. 4; and no damage of any kind could therefore arise to him from the remonstrance, by reason of his not getting said school; and therefore plaintiff is not entitled to recover against any of the defendants.
Answer: “We decline instructing you that the facts stated in this point will defeat a recovery by the plaintiff. The evidence is that school No. 4 was not awarded to any teacher at the meeting of the directors and county superintendent on the 8th August, but a teacher was afterwards appointed. And if the school had been offered to Laverty on the 8th of August, he might have obtained a certificate and qualified himself in that respect before the commencement of the school. If defendants acted maliciously and did prevent Laverty from obtaining the school by their malicious conduct, and thus caused damage to him, they cannot now screen their bad conduct by alleging that the plaintiff on the 8th August had not obtained a certificate.”
■ 7. The plaintiff having shown by his own witnesses that, for the period during which he alleges he was kept by defendants out of school No. 4, he was engaged in the same occupation of a school teacher in Marysville, at a higher salary than was paid at school No. 4, he has by his own showing sustained no damage, and therefore cannot recover. An act that has a mere tendency to injure, without actually doing injury, is not actionable.
Answer : “ We cannot answer this point as requested. If the defendants, or any of them, maliciously and unlawfully caused damage to the plaintiff, they cannot avoid the consequences of their wrongful acts by showing that Laverty obtained employment equally remunerative as that of which they deprived him. An act that has a mere tendency to injure, without actually doing an injury, is not actionable.”
The court also charged-: * * * “If the defendants signed the paper with a common intent and object in view, and through malice, ill-will or revenge, wrongfully to injure and aggrieve the plaintiff, and it did result in actual damage to the plaintiff, this in law would make it the joint act of those signing; although they may not have met in consultation to devise or arrange any plan to carry out a joint object, nor any two of the defendants signed at the same time.
[“ The defendants’ counsel insist that the right of petition is a legal right, and there can be no wrong which is actionable committed in the exercise of a legal right. If this position is correct there can be no recovery. This case was tried in this court and in the Supreme Court, and this same ground then relied upon by defendants’ counsel. The Supreme Court have directed another trial, so that we must presume the learned judges of that court considered this ground of defence not tenable when they directed a new trial.]
[“ The right of petition is a legal right, but like all other legal rights it may be abused. When exercised honestly and from pure motives for proper purposes, the law throws its shield around those thus using it. But it may not be used to gratify bad feelings and angry passions to the injury of our neighbors. If the defendants, or any one or more of them, signed the paper in evidence, or acted in concert with those who signed it, to effect a common object, and in doing so were induced or prompted by feelings of malice, anger, hatred, ill-will or revenge, and this was the ruling motive which prompted their actions, and their conduct resulted in injury and damage to the plaintiff, then the plaintiff may recover such damages as he has sustained, against the defendants who participated in causing the damages. But if the evidence fails to satisfy you that the plaintiff has sustained any loss or damage by reason of the acts of the defendants, or any of them, then he cannot recover. So, too, if defendants acted honestly and were influenced by proper motives in opposing the appointment of the plaintiff as teacher in school No. 4, the plaintiff cannot recover. It is therefore an important inquiry to -ascertain whether the conduct of defendants, or any of them, resulted in damage to the plaintiff.] * * *
“ How the facts were you must determine from all the evidence. [The important inquiries are, 1st.' Did the defendants, or any of them, act maliciously and from impure motives, as stated in a former part of our charge ? If they did not, but from proper and justifiable motives, then the plaintiff cannot recover. But if you find that their motives were impure and unjustifiable, then you will further inquire whether the acts and conduct of the defendants resulted in injury and damage to the plaintiff, in defeating his appointment as teacher of school No. 4. If the conduct of defendants was not the cause of preventing his appointment, then find for the defendants. But if their conduct, or that of any of them, was prompted' by bad feeling and improper motives, and did defeat the appointment of plaintiff to school No. 4, then find for the plaintiff.”]
The verdict >vas for the plaintiff against Joseph Yanarsdale, William Bender and Simon Pratz for $50. They took out a writ of error and assigned for error :—
1. The admission of plaintiff’s offer of evidence.
2. The rejection of the defendants’ offer.
3. 4 and 5. The portion of the charge in brackets.
9 and 11. The answers to the defendants’ 6th and 7th points.
