City of Advance ex rel. Henley v. Maryland Cas. Co.

• Citation: 302 S.W.2d 28
• Decision Date: 13 May 1957
• Docket Number: No. 1,No. 45616,45616,1
• Parties: CITY OF ADVANCE, Missouri, at the Relation of Jerry HENLEY, a Minor, by Jim Henley, his Next Friend, Appellant, v. MARYLAND CASUALTY COMPANY, a Corporation, and Herbert Westbrook, Respondent
• Court: United States State Supreme Court of Missouri

Page 28

302 S.W.2d 28

CITY OF ADVANCE, Missouri, at the Relation of Jerry HENLEY, a Minor, by Jim Henley, his Next Friend, Appellant, v. MARYLAND CASUALTY COMPANY, a Corporation, and Herbert

Westbrook, Respondent.

No. 45616.

Supreme Court of Missouri, Division No. 1.

May 13, 1957.

Briney & Welborn, Bloomfield, for plaintiff-appellant.

Elvis A. Mooney, Bloomfield, C. A. Powell, Dexter, for respondents.

HOLLINGSWORTH, Presiding Judge.

In this action, Jerry Henley, a minor, sought in count one of his petition to recover the sum of $1,000 from Herbert Westbrook, marshal of the City of Advance, Missouri, and his surety, Maryland Casualty Company, for personal injuries sustained during an alleged unlawful assault upon and battery of him by Westbrook. In count two, plaintiff sought recovery of the sum of $10,000 punitive damages from Westbrook alone. Defendants denied any unlawful assault by Westbrook upon plaintiff and pleaded that at the time alleged in the petition Westbrook had placed plaintiff under arrest 'for speeding within the City Limits of the City of Advance', and that Westbrook 'used no more force than was reasonably necessary to defend himself after plaintiff first struck and hit [him] and to prevent the plaintiff from escaping from his custody.' Plaintiff's reply was a general denial. Trial of the case resulted in a verdict and judgment for defendants, from which plaintiff has appealed, alleging error (1) in the giving of defendants' Instructions D-2 and D-4, (2) in permitting erroneously prejudicial argument on the part of the defendants' counsel, and (3) in excluding evidence offered by plaintiff. Defendants deny the error asserted by plaintiff and take the position that defendants are entitled to a directed verdict.

On the date of the occurrence in issue, December 11, 1954, and for several years prior thereto, Herbert Westbrook was marshal of the City of Advance and Maryland Casualty Company was surety upon his official bond, which was conditioned that he 'well and faithfully perform * * * the duties incumbent upon him.' Plaintiff, aged 16 years, resided with his parents near the City of Advance and was employed at 'Mutt's Place', a restaurant and automobile service station, situate about one-fourth mile outside the city limits. His hours of work were from 7 p. m. to 7 a. m. daily. Plaintiff and Westbrook well knew each other and each knew the residence and the employment of the other.

Plaintiff's testimony was: About the hour of eleven o'clock, p. m., Westbrook came to Mutt's Place in the city police car and said, 'Come here, Jerry, I want you', never at any time telling plaintiff he was being arrested. Plaintiff got into Westbrook's car and sat on the front seat to his right and the car 'started up'. Westbrook asked plaintiff if he remembered 'going by' his (Westbrook's) home and passing a woman. Plaintiff replied that he did 'go by' Westbrook's home about 6:00 p. m. and did pass a woman. Westbrook said, 'You were doing 50 miles an hour when you went by her.' Plaintiff said, 'Herb, I wasn't.' Westbrook drove to the home of the police judge, inside the city limits, and there sounded the horn of his car. The home was dark and as they sat there waiting for the judge, Westbrook continued to insist that plaintiff 'was doing 50 miles an hour' and plaintiff insisted to the contrary. Westbrook said, 'Shut up or I will knock hell out of you.' At that time Westbrook struck plaintiff with the side of his hand and then 'come around' with his left hand, striking plaintiff in the mouth, breaking a denture of false teeth and severely injuring his lips and mouth. Plaintiff never at any time touched Westbrook. The police judge came to the car, whereupon Westbrook told him he had 'this boy down here for speeding' and that plaintiff 'was trying to tell me how to run my business and I had to quieten him down.' Plaintiff said, 'He broke my teeth', and the judge asked, 'What did you hit him with, Herb?' The judge and Westbrook then stood outside the car, conversed privately, and both returned and sat in the car. The judge said 'he would make it easy on me * * *, would fine me sixteen and a half'. Plaintiff said he wanted to 'talk to my dad first', the judge said it was 'all right with' him and Westbrook assented. They told him to come back the next day, and Westbrook took plaintiff back to Mutt's Place and then to another place where plaintiff had left his car. Plaintiff had drunk one can of beer after passing Westbrook's home at 6 p. m. and prior to 11 p. m., when Westbrook came after him. He had drunk no other intoxicants that day.

The evidence in behalf of both defendants tended to show: Ordinance No. 28 of the City of Advance made it unlawful to operate an automobile upon the streets of the city in excess of 20 miles an hour. When plaintiff drove past Westbrook's home on the evening of December 11, 1954 he was going at a speed estimated by Westbrook at 50 miles an hour. Thereafter, at about 10 p. m., Westbrook went to Mutt's Place, called plaintiff to his car, told him to get into it, and told him he 'was going to take him to the police judge'. Plaintiff asked why he was being taken there. Westbrook asked him if he did not remember going 'past my house about 50 miles an hour'. Plaintiff said he remembered going by there and that he was going over 20 miles an hour, but he was not going 50 miles an hour. As Westbrook's car got closer to the police judge's home, plaintiff, who was intoxicated, 'got louder' and began throwing his arms around. Upon arrival at the judge's home, plaintiff opened the car door and said, 'I'm not going to see no police judge, I'm going to get out of here.' Westbrook 'had to grab [plaintiff's] arms and pull the door back shut to keep him in the car'. Westbrook never hit plaintiff and did not know how his false teeth became broken. After the police judge came to the car, plaintiff quieted down and 'pretended to take these teeth out of his mouth' and said, 'Here are some teeth you broke * * *.' The police judge got into the car and the parties talked for about an hour. Westbrook and the police judge did not get out of the car. About four days prior to this occurrence, Westbrook asked plaintiff how many times he had to be warned about the way he had been driving and plaintiff had replied, 'Your speed signs here in Advance don't mean anything to us boys around here * * *. By God, you had better not ever arrest me.'

Plaintiff contends that Instruction D-2, given at the request of defendants, was erroneous because it did not require the jury to find that Westbrook had plaintiff under 'lawful' arrest at the time of the assault. Said instruction directed the jury that if it found plaintiff was 'under arrest for speeding within the city limits of the city of Advance in violation of the ordinances' of said city and that defendant Westbrook with reasonable cause believed plaintiff was about to escape and to prevent escape Westbrook used only such force as was reasonably necessary, then the jury would find in favor of both defendants. Not only did defendants' aforesaid Instruction D-2 assume a lawful arrest, but so did their given Instruction D-4, which, in effect, directed the jury that if it believed plaintiff 'started or brought on the exchange of physical contacts, * * * and wilfully engaged in the exchange of blows * * * and that the defendant Westbrook used no more force than was used by [plaintiff], * * * then your verdict will be for the defendants * * *.'

In this court, defendants say that Instruction D-2 'properly did not require the jury to find that the arrest was lawful', because the legality of the arrest was a question of law. They further contend that defendant Maryland Casualty Company is not liable for defendant Westbrook's act and was entitled to a directed verdict if the arrest was unlawful. They also say that Instruction D-4 was proper because 'plaintiff's own evidence showed that actually he was under arrest' and that 'Westbrook had the right to use as much force as was necessary to defend himself * * *'

The facts as to the arrest are not in dispute: Westbrook saw plaintiff drive an automobile past Westbrook's home in the City of Advance at 6 p. m. Westbrook estimated his speed to be 50 miles per hour. At 10 or 11 o'clock, p. m., Westbrook drove to Mutt's Place beyond the city limits and there, as marshal of the City of Advance, without process, arrested plaintiff for a violation of the 'speed' ordinance of that city. Was that arrest lawful? The answer to that question has a most important bearing not only upon this appeal, but, if the cause is remanded, then upon any future trial of the case.

It is well established as a general rule that, in the absence of statute, municipal police officers have no official power to apprehend offenders beyond the boundaries of their municipality. 4 Am.Jur., Arrest, Sec. 51, p. 35; 6 C.J.S. Arrest Sec. 13, p. 611; State ex rel. McNamee v. Stobie, 194 Mo. 14, 57, 92 S.W. 191, 201; Rodgers v. Schroeder, 220 Mo.App. 575, 287 S.W. 861, 863-864, and cases therein cited. Defendants seemingly concede the rule. They say, however, that Section 85.610 RSMo 1949, V.A.M.S., gave Westbrook the right to make the arrest. That section, defining the powers of marshals of cities of the fourth class, of which class is the City of Advance, provides:

'The marshal in cities of the fourth class shall be chief of police, and shall have power at all times to make or order an arrest, with proper process, for any offense against the laws of the city or of the state, and to keep the offender in the city prison or other proper place to prevent his escape until a trial can be had before the proper officer, unless such offender shall give a good and sufficient bond for his appearance for trial. The marshal shall also have power to make arrests without process, in all cases in which any offenses against the laws of the city or of the state shall be...