Thomas I. Guerin, Philadelphia, for appellant.
Foster A. Dunlap and Philip S. Polis, Philadelphia, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 172 Pa. Super. Page 538]
The complaint in this action of assumpsit brought by Erma C. Yorke alleged in substance that the defendant, Fred Lee, 'forced' plaintiff to 'give' him the sum of $100 a month from June 1, 1944 to December 1, 1945 'because of threats of bodily harm and personal violence and other illegal threats made to her by him'. It was further alleged that 'at Christmas 1945' defendant 'obtained' $200 'using similar threats'. Finally it was alleged that from March 1946 to December 1946 defendant 'compelled' plaintiff to 'give' him additional sums of money totaling $1450 'by the use of threats similar to those described * * * above'. An answer was filed denying the allegations of the complaint. The case was tried before a jury which returned a verdict for the plaintiff in the sum of $800, and after the defendant's motion for a new trial was refused, he took this appeal.
The evidence adduced by the plaintiff to support the allegations of her complaint may be summarized as follows: She was married to William Lee Yorke, a Chinese, who, until his death on May 15, 1944, owned and operated a Chinese restaurant in Philadelphia, where the defendant worked as a waiter and cook from May 1943 until the restaurant was temporarily closed on December 2, 1945.
Plaintiff testified that after her husband's death and the closing of the restaurant she went to New
[ 172 Pa. Super. Page 539]
York where she met with the defendant and three other Chinese. At this time, according to plaintiff, 'they' told her she 'would have to send $100.00 a month to China for relief if I wanted to open the restaurant doors'. She agreed to send the $100 a month and stated that in doing so she merely intended to continue systematic donations made voluntarily by her husband in his lifetime. She testified that after her return to Philadelphia 'a couple of days before Decoration Day' 1944, the defendant 'came upstairs and said that I would have to give him $100.00 a month besides the $100 I was giving to the Chinese relief'. She stated: 'He said I was to pay it. He said that I could not open up if I did not give it to him'. She consulted her attorney with respect to this alleged demand but his advice to her does not appear. Thereafter defendant told her he would 'make me a lot of trouble if I did not pay him the money'. Plaintiff stated that she made one payment of $100 to defendant in June of 1944 but in July of that year she did not pay the money and defendant 'took it off the waiters' and waitresses' money'. Around Labor Day of 1944 plaintiff and defendant 'had a big fuss' about the $100 payments and at that time defendant and one Paul Wung stated that if she did not make the payments to defendant they 'would say that Mr. Yorke had a wife in China when he was nine years old'. Plaintiff testified that she considered this matter 'ridiculous' and that she 'laughed it off' because she knew and could prove that her husband had been in the United States when he was nine years old, but that she nevertheless consulted her attorney and that he advised her to pay the money to defendant.
It would appear that plaintiff paid the defendant $100 in June of 1944, as noted above, and between that time and December of 1945 permitted him to withhold
[ 172 Pa. Super. Page 540]
$1800 from the money which he as cook and unofficial manager of the restaurant collected from the waiters and waitresses. Plaintiff -- presumably by way of attempting to explain why she failed to make any attempt to halt defendant's practice of withholding restaurant receipts -- stated that she feared defendant because in July of 1945 he persuaded the 'Yake-a-mein Company' to discontinue sale of 'noodles' to her for her restaurant and because he 'laid off my head cook who had been there for over seven years'. She testified further that certain restaurant equipment 'went bad', that the skylight ...