Commonwealth v. Bollinger

• Decision Date: 17 April 1923
• Citation: 198 Ky. 646,249 S.W. 786
• Parties: COMMONWEALTH, FOR USE OF CRAWFORD, v. BOLLINGER ET AL.
• Court: Kentucky Court of Appeals

249 S.W. 786

198 Ky. 646

COMMONWEALTH, FOR USE OF CRAWFORD, v. BOLLINGER ET AL.

Court of Appeals of Kentucky.

April 17, 1923

Appeal from Circuit Court, Christian County.

Action by the Commonwealth of Kentucky, for use of L. O. Crawford against Harry Bollinger and others. Judgment for defendants and plaintiff appeals. Affirmed.

O. H Anderson, of Hopkinsville, for appellant.

Trimble & Bell, of Hopkinsville, and James B. Allensworth, of Paducah, for appellees.

SAMPSON C.J.

While driving his automobile from Elkton by way of Trenton and Pembroke to Hopkinsville, in April, 1920, appellant L. O Crawford was halted and fired on in Pembroke by appellee Harry Bollinger, policeman of Pembroke and a posse whom he had summoned to help make an arrest and who were directed to and did attempt to arrest to them at the time an unknown man that had run down and seriously injured or killed a doctor in Elkton. Several bullets passed through the car driven by appellant, and one bullet passed through his clothing; powder from a discharged pistol burned his face, and his car was wrecked and practically destroyed by a collision with an obstruction placed by the officer and his posse in the street of Pembroke, for the purpose of stopping appellant and his car. This suit was instituted in the name of the commonwealth of Kentucky, for the use and benefit of Crawford, against Bollinger as policeman and his surety, United States Fidelity & Guaranty Company of Baltimore, and against James Denny and Clarence Buckner and Arthur Hampton, whom it is alleged were members of the officer's posse and who took part in the placing of the obstruction in the street and in the firing of the weapons which injured and destroyed the car, and frightened and humilated appellant Crawford, to recover damages in the sum of $50,000 for the injury to Crawford, and $1,000 for injury to his automobile.

By answer appellees Bollinger and Denny admitted that they had attempted to accomplish the arrest of appellant Crawford in the town of Pembroke on the occasion mentioned in the petition and had placed the obstruction in the street and had fired on appellant after commanding him to halt and after he had failed to stop his car and to submit to arrest; it being alleged that Bollinger was the regularly qualified and acting policeman of the said town and had summoned James Denny to assist him in making the arrest. It is further pleaded in the answer that appellant Crawford was transporting whisky in his automobile at the time of the attempted arrest; that he was violating the ordinances of the town by exceeding the speed limit; and further that before his arrival in the town appellee Bollinger as policeman had receive telephonic communication from persons in the towns of Trenton and Elkton that appellant Crawford had committed a felony in Elkton, on that evening, by wantonly and maliciously running down with his car and killing a man, and that pursuant to said instruction Bollinger, as policeman, had summoned Denny to aid in making the arrest, and that the two acting with others had placed some plows and other farming machinery across the street so as to prevent the passage of the car and had then stationed themselves at a convenient place under an electric light on the street along which appellant was expected to pass, and there waited until appellant approached in his car, when they signaled him to stop, and then cried out several times, "Halt!" all of which signals were ignored by appellant, who at the time was traveling at a high rate of speed much in excess of that allowed by law, and who attempted to run his car against and over them and in doing so ran into and against the said obstruction, knocking the same out of his way and continuing his journey; that appellees were unable to and did not accomplish his arrest. The other individual defendants filed answer showing that they had no connection whatever with the attempted arrest, except that they were summoned as members of the posse; and, there being no evidence on the trial to show their connection with the attempted arrest, the lower court properly directed a verdict in their favor. The United States Fidelity & Guaranty Company of Baltimore filed a joint answer with appellees Bollinger and Buckner, in which it set forth with definiteness the terms and conditions of its bond of suretyship for Bollinger, policeman of Pembroke, and filed with its answer a copy of said bond, the terms of which clearly show that the guaranty company undertook merely to indemnify the city of Pembroke to the extent of $2,000 against loss through its policeman Bollinger from acts of dishonesty amounting to larceny or embezzlement and upon no other account. While this averment of the guaranty company was denied, the exhibits introduced conclusively proved that the said company by its contract did not undertake to indemnify against wrongs, such as the one complained of in the petition. The trial court, therefore, properly sustained appellee's motion for a directed verdict in favor of the surety company.

On a trial before a jury a verdict was returned in favor of the appellees Bollinger and Denny. Judgment being entered upon this verdict in accordance with its terms, Crawford, through the commonwealth, prosecutes this appeal. He makes the following contentions:

(1) The verdict was against the law.

(2) The verdict was not supported by the evidence.

(3) The verdict was contrary to the law and evidence.

(4) The court...