Davis v. Burgess

• Decision Date: 23 September 1884
• Citation: 20 N.W. 540,54 Mich. 514
• Court: Michigan Supreme Court
• Parties: DAVIS v. BURGESS.

20 N.W. 540

54 Mich. 514

DAVIS v. BURGESS.

Supreme Court of Michigan

September 23, 1884

Error to Wayne.

CAMPBELL J., dissenting.

Thomas R. Crisup, for plaintiff.

Moore & Canfield, for defendant.

SHERWOOD, J.

This is an action of trespass for assault and battery and false imprisonment. The plaintiff was a private citizen, and the defendant, at the time of the arrest complained of, was a policeman in the city of Detroit. On the thirty-first of August, 1882, the defendant claims he went into a pawnbroker's shop in Detroit to assist a young man in obtaining a watch he had left in pawn there. Saw the plaintiff, who was acting as clerk for the pawnbroker, Mr Van Baalem, at the time; that Davis ordered him out of the shop, using profane and indecent language towards him as he left. The next day, about noon, Davis found Burgess upon the street, and told him there was a gentleman at the pawnbroker's shop who wished to see him. Burgess went there in company with another officer, and while there Davis asked Burgess his name and for his number, which was given and thereupon Davis called the defendant almost everything indecent, saying he would have his buttons off of him, etc and would make complaint against him. Davis' language was very indecent and profane. This was while they were in the shop. Defendant did nothing, but walked out of the shop and across the street, and then started for a street car. Davis followed him, continuing his profanity and abuse, calling the defendant a son of a bitch, and other mean names, and by so doing gathered a crowd around them upon the street, and then he went into his store. Defendant told him that such language should not be used upon the public street, and was about to enter the car when Davis again came upon the street, and, standing upon the sidewalk, renewed his vile and profane attack upon defendant, who was then going across the street, hailed him, and again assailed him with vulgar, profane, and indecent language in the presence of citizens, among whom were ladies, passing along the street. Burgess went to the plaintiff and asked him for his name, which he refused to give, saying to defendant, "If you lay your hands upon me I'll shoot you," calling him at the same time a vile name. Defendant thereupon arrested the plaintiff, took him to the city attorney's office, and made complaint against him under the city ordinance, which provides that "no person shall be guilty of using indecent or immoral language, nor be guilty of any indecent or immoral conduct or behavior on any public street, lane, alley, square, park, or space in said city," the penalty being fine or imprisonment. The city attorney took the complaint, but, for some reason, failed to prosecute it. Davis was discharged. This is the defendant's statement of the facts, and he claims that if found true by the jury they constitute a perfect defense to the plaintiff's action.

The defendant was sworn in his own behalf, and upon most of the material facts stated by him he was contradicted by the plaintiff, whose version of the matter presents an entirely different case; but with this we have little to do.

The court having charged the jury, in substance, that the only question for them to consider was that of damages, it is only needful for us to review the case as presented on the part of the defendant, and if, from his showing, he was not justified, the verdict must stand.

There seems to be no question that the official position of the defendant in the city of Detroit, at the time the arrest was made, constituted him a conservator of the peace. The arrest was made without warrant. At the time it was made (midday) the plaintiff was on the sidewalk, where citizens, men...