Brittain v. U.S. Fidelity & Guaranty Co.

• Decision Date: 19 April 1927
• Citation: 293 S.W. 956,219 Ky. 465
• Parties: BRITTAIN ET AL. v. UNITED STATES FIDELITY & GUARANTY CO.
• Court: Kentucky Court of Appeals

293 S.W. 956

219 Ky. 465

BRITTAIN ET AL. v. UNITED STATES FIDELITY & GUARANTY CO.

Court of Appeals of Kentucky.

April 19, 1927

Appeal from Circuit Court, McCracken County

Action by Geneva Brittain and another against the United States Fidelity & Guaranty Company. From a judgment of dismissal petitioners appeal. Affirmed.

Crossland & Crossland, of Paducah, for appellants.

H. L Means, of Louisville, for appellee.

LOGAN J.

This is an appeal from a judgment of the McCracken circuit court dismissing the petition of appellants against the appellee, United States Fidelity & Guaranty Company. The action is based upon the alleged wrongful killing of George Brittain by certain police officers of the city of Paducah, and appellee is proceeded against as the bondsman of these officers. It is alleged that one McCage fired the shot that killed Brittain and that one Steele was present, assisting, aiding, and advising the said McCage at the time he shot and killed Brittain. Steele was the chief of police of the city of Paducah and McCage was a policeman of the same city. On the night of the killing a posse comitatus raided the house of Pearl Brewer near the city of Paducah, and Steele, in connection with one Vannerson, a county patrolman for McCracken county, had arrested George Brittain in the house of said Brewer on a charge of disorderly conduct. Brittain was placed in charge of McCage and in attempting to make his escape and while he was fleeing he was shot and killed by McCage. The appellee was bondsman for only Steele and McCage and was not on the bond of Vannerson. These facts are gathered from the petition and amended petition. The house which was raided was just outside the city limits of Paducah and in the county of McCracken.

The sole question to be determined is whether these police officers had any authority to make an arrest outside of the city of Paducah. The appellee appears to have won its contention in the lower court on the ground that Steele and McCage were police officers of the city of Paducah, and that it was not responsible for their acts, because they were not engaged at the time of the killing as officers of the city but were acting simply as individuals.

Appellants rely on the case of Helm v. Commonwealth, 26 Ky. Law Rep. 165, 81 S.W. 271, in support of their contention that these police officers had authority to make an arrest outside of the city of Paducah. In that case Helm was the city marshal of the town of Whitesville, in the county of Daviess which was a town of the sixth class. He was sent for and went to the place where he made the arrest about two miles from town. It was insisted in that case that the jurisdiction of the marshal to make arrests was confined to the limits of the town. That case, however, is not authority here, as Ky. Stats. § 3687, specifically confers upon marshals of towns of the sixth class the same powers to make arrests as are conferred upon sheriffs by the laws of the state. This court, construing that section, held that the marshal had the power to make an arrest outside of the town. This opinion followed the opinion in the case of Heather...