Forsythe v. Ivey

• Decision Date: 15 February 1932
• Docket Number: 29821
• Citation: 162 Miss. 471,139 So. 615
• Court: Mississippi Supreme Court
• Parties: FORSYTHE et al. v. IVEY

139 So. 615

162 Miss. 471

FORSYTHE et al. v. IVEY

No. 29821

Supreme Court of Mississippi

February 15, 1932

Division B

Suggestion Of Error Overruled March 14, 1932.

APPEAL from circuit court of Alcorn county HON. THOS. H. JOHNSTON Judge.

Action by J. S. Ivey against W. E. Forsythe and another. Judgment for plaintiff, and defendants appeal. Reversed and rendered.

Reversed, and judgment here for appellants.

Cary Stovall, and W. H. Kier, both of Corinth, for appellants.

The case at bar is readily differentiated from Harris v. Sims et al., 155 Miss. 207, 124 So. 325, and Carlisle v. City of Laurel, 156 Miss. 410, 124 So. 786.

In the instant case the testimony is absolutely overwhelming, and even rises to the point of proving beyond reasonable doubt that the plaintiff below the appellee here walked, talked, generally acted like, and his whole demeanor was that of, a drunk man and that he was drunk so far as the testimony in this case shows; that he neither could not or would not tell the officers who he was, give them his name, tell them where he lived or who his people were. The appellee did not tell the arresting officers or anyone present when he was arrested that he was sick or that he was not drunk. The sole and only things these officers had to go and judge by were the actions and demeanor, the manner of walking and talking or refusing to talk, of the appellee.

Section 1227, Code of 1930, provides how arrests may be made without a warrant and section 1231, Code of 1930, provides for there being no liability, criminally or civilly of officers or persons making arrests according to law.

J. W. P. Boggan, of Tupelo, for appellee.

An officer or private person may arrest any person without warrant, for an indictable offense committed, or a breach of the peace threatened or attempted in his presence, or when a person has committed a felony, though not in his presence; or when a felony has been committed he has reasonable ground to suspect and believe the penson proposed to be arrested to have committed it; or on a charge, made upon reasonable cause, of the commission of a felony by the party proposed to be arrested. And in all cases of arrests without warrant, the person making such arrest must inform the accused of the object and cause of the arrest, except when he is in the actual commission of the offense, or is arrested on pursuit.

Sec. 1227 of Miss. Code of 1930.

The question as to whether the appellee was drunk or sick was one of fact and was properly submitted to the jury.

Burke v. Tidwell, 101 So. 599; Burke et al. v. Knott, 101 So. 811; Rhodes v. McWilson, 16 A. L. R. 315; 77 So. 465, Id., 202 Ala. 68, 79 So. 462; 1 A. L. R. 568; Worsham v. State, 17 Ala.App. 181, 84 So. 805, 25 C. J. 471 (37) (6).

In suits for damage for false imprisonment, question of damages is one for a jury, whose findings is not to be disturbed, unless the court can now see that the verdict evinces passion or prejudice on the part of the jury.

Harris v. Sims et al., 124 So. 325.

The court was eminently right in refusing the peremptory instruction asked for by the defendants. The instruction number 8 should have been refused because the defendants were not excused on account of their belief that the plaintiff was drunk unless plaintiff intentionally misled them and the proof in this case shows that plaintiff was not drunk, but was physically and mentally ill, and there is no proof in the case to show that he did anything to mislead the defendants that he could have avoided.

OPINION

Ethridge, P. J.

The appellee, J. S. Ivey, brought suit against the appellants, W. E. Forsythe and John Busby, policemen of the city of Corinth, for an alleged false imprisonment, and recovered judgment in the sum of five hundred dollars therefor, from which judgment this appeal is prosecuted.

It appears that Ivey was arrested about eight o'clock in the evening of June 25, 1929, by the appellants. Forsythe had been a policeman of the city of Corinth for thirteen years and Busby for about eighteen years. The arrest was made without warrant, and was made on the belief that the appellee was drunk at a public place in said city in the presence of two or more persons. The policemen observed Ivey walking across the street staggering and apparently drunk; followed him, observing him closely, until he reached the Corinth Bank & Trust Company in said city, when he went up to the door of said building, and pulled open the screen door, and was trying to open the door of the bank. Thereupon, the policemen went up and asked him what he was trying to do, and he answered that he was trying to get in his room. They thereupon arrested him for being drunk and started on the way to the jail with him when the sheriff, with another occupant in his car, came along and offered to let the policemen take Ivey in the car which was done. The sheriff and the occupant of his car had also observed Ivey and decided he was drunk. Ivey had barely escaped being run over by an automobile in the street, and he put his raincoat on the running board of the sheriff's car, and the officers left it in the drug store to keep it from being taken by some one else.

After Ivey had been placed in jail, telephone inquiries came from his home, and the inquirers were informed that he was in jail charged with being drunk. Thereupon, members of his family came to the jail accompanied by a physician who made an examination of Ivey and decided that he was not drunk, but was sick, having fever, and on informing the police authorities of that opinion Ivey was released from jail and carried to his home, where his regular family physician examined him and found he had active malaria and some fever.

The appellee, J. S. Ivey, testified that he was arrested shortly after quitting work, which work was flagging a crossing, in the city of Corinth; that he took a chill and did not know what he was doing from the time he was taken with a chill and his fever rose, until he was arrested; that he remembered being arrested, and he claimed he inquired of the officers who were taking him in custody why he was being thus taken, and was informed that it was for being drunk; and that he informed them he was not drunk, that he had had nothing to drink, but that they carried him to jail notwithstanding.

The policemen testified that they inquired of him at the time they took him into custody who he was and where he lived, but that he was either unable, or refused, to tell them, and that they did not know who he was or where he lived.

It appears that after observing him, and before arresting him, one of the policemen asked the other who Ivey was, and the other answered that he did not know, that he had seen him somewhere, but could not place him.

Ivey testified that he knew the policemen and that they knew him, and he did not remember telling who he was, or where he lived, but he did not deny the statements.

The sheriff and the occupant of his car and the two policemen all testified that in their opinion the appellee (Ivey) was drunk, but they did not smell any liquor on his breath. The sheriff testified that people were...