City of Lexington v. Gray

• Decision Date: 18 May 1973
• Citation: 499 S.W.2d 72
• Parties: The CITY OF LEXINGTON, a Second-Class Municipality of the Commonwealth of Kentucky, Appellant, v. Elaine GRAY, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 72

499 S.W.2d 72

The CITY OF LEXINGTON, a Second-Class Municipality of the Commonwealth of Kentucky, Appellant, v. Elaine GRAY, Appellee.

Court of Appeals of Kentucky.

May 18, 1973.

As Modified on Denial of Rehearing Sept. 7, 1973.

John C. Anggelis, Anggelis & Vimont, John W. Collis, Lexington, for appellant.

Peter Perlman, Fowler, Rouse, Measle & Bell, Barry Benton, Compton, Swanger, Benton & Wake, Lexington, for appellee.

STEINFELD, Justice.

The City of Lexington appeals from a judgment in the amount of $6,841.67 entered pursuant to a jury verdict in appellee Elaine Gray's suit for damages for personal injuries and medical expenses. The city claims that it was entitled to a directed verdict because at the time the injuries were inflicted there was no employer-employee relationship between it and police officer Dan Brotherton, the person who is charged with causing the injuries, and that even if there was that relationship the 'employee' was not acting within the scope of his employment. Also, it challenges the instructions to the jury. We reverse.

Off-duty patrolman Brotherton, dressed in civilian clothes and in his own automobile, went with his mother and brother to the Gray home to locate an acquaintance of his brother with whom the brother had been engaged in a fight. Brotherton identified himself to Mrs. Gray as a 'cop'. When she informed the patrolman that the person he was seeking was absent, an argument ensued, according to her testimony; however, according to his testimony, she began insulting him, screaming at him and pointing her finger in his face. He decided, he said, that her conduct was so loud and abusive that she was guilty of disorderly conduct and disturbing the peace. He stated that he told her she was under arrest (KRS 431.005), whereupon, she hit him in the eye and when he attempted to ward off her blows his arm came into contact with her and she fell to the floor. He then sought the aid of the police department in completing the arrest, which was accomplished in his absence. He testified that he went to the Gray house without the intention of arresting anyone, but that after Mrs. Gray 'erupted' it was his opinion that an offense had been committed and that it was his official duty to make the arrest.

The proof also showed that during his induction training he was instructed that he was a police officer at all hours and he was required always to carry a weapon and police identification. He was authorized to make investigations and arrests on or off duty anywhere in the city of Lexington.

The city contends that an employer-employee relationship was not proved, but we find that it was. Although the venture started as a private matter, the injuries occurred when the patrolman was attempting to arrest Mrs. Gray, which arrest was completed by other officers. The motion for a directed verdict was correctly overruled. City of Lexington v. Yank, Ky.,431 S.W.2d 892 (1968).

Appellant contends that the evidence did not support the giving of an interrogatory because it '* * * is contradictory as to whether or not in fact the Appellee herein was struck at all.' The officer testified that in raising his arm he was attempting to protect himself, but the proof showed that Mrs. Gray received two black eyes and a broken nose. It cannot seriously be contended that she was not struck--certainly the jury was authorized to believe that she was .

The appellant complains that the instructions were erroneous and an interrogatory misleading. The parts in issue are as follows:

'If you believe from the evidence that at the time and place mentioned in the evidence the defendant, Dan Brotherton, had reasonable grounds to believe that the plaintiff, Elaine Gray, had committed a misdemeanor in his presence by such disorderly conduct as was calculated to disturb the public peace, it was the right and duty of the defendant, Dan Brotherton, to arrest the plaintiff.

'Does the Jury believe from the evidence that at the time the defendant, Dan Brotherton, struck the plaintiff, it was not necessary, or did not reasonably appear to said defendant to be necessary to so strike the plaintiff in order to carry out a valid arrest, and that it was not necessary to strike the plaintiff in order to protect said defendant from assault or attempted assault on him by the plaintiff?'

The city argues that the instructions should have been limited to indicate that the officer had the right to use such force as was necessary to effect the arrest and that the instructions exceeded authorized bounds...