Franks v. Smith

• Decision Date: 14 February 1911
• Citation: 142 Ky. 232,134 S.W. 484
• Parties: FRANKS v. SMITH.
• Court: Kentucky Court of Appeals

134 S.W. 484

142 Ky. 232

FRANKS v. SMITH.

Court of Appeals of Kentucky.

February 14, 1911

Appeal from Circuit Court, Caldwell County.

Action by R. Sidney Smith against L. C. Franks and others. From a judgment for plaintiff against Franks alone, the latter appeals. Affirmed.

James Breathitt, Atty. Gen., John F. Lockett, Asst. Atty. Gen., and John Gates, for appellant.

R. W Lisanby, for appellee.

CARROLL J.

The questions presented by this record relate to the power of the Governor to order into active service the militia of the state, and the civil rights and liabilities of militiamen while so engaged, as well as the subordination of the military to the civil authorities in the territory into which they are directed to go. These important questions come up in an action to recover damages for false arrest, brought by the appellee, Smith, a private citizen of Caldwell county, Ky against the appellant, Franks, McFarland, Cook, Kennedy, and Gans, members of the state militia. During the trial, the action against Kennedy and Cook was dismissed without prejudice by the appellee, and the court peremptorily instructed the jury to return a verdict in favor of McFarland and Gans. After the action was thus disposed of as to these parties, it proceeded against the appellant, Franks, and the jury assessed the damages against him in the sum of $1,000. From a judgment upon this verdict Franks appeals, and from the order of the trial court directing a verdict in favor of McFarland and Gans the appellee, Smith, prepared, but did not prosecute, an appeal. At the time, and before the arrest complained of, Gans was captain of Company C, Third Infantry Kentucky State Guards, and Franks was a sergeant, and Cook, McFarland, and Kennedy were privates in the same company. In making the arrest of Smith, they were acting under the orders of superior officers in the military service, and independent of the civil authorities of Caldwell county. They did not report to or receive any directions from the sheriff or jailer of Caldwell county, or the mayor or marshal of the city of Princeton, or any other civil officer in the city of Princeton or the county of Caldwell, in which county they made the arrest complained of.

The separate answers of Franks, McFarland, Cook, Kennedy, and Gans, which were substantially the same, admitted the arrest and detention of Smith by them, and in justification of their acts they set up that they were at the time regularly enlisted and duly qualified and acting members of Company C, Third Regiment, Infantry, of the Kentucky State Guards, and members of a detachment of said regiment stationed at Princeton, in Caldwell county, Ky.; that Capt. Gans was under the command of E. B. Bassett, the duly appointed, qualified and acting major of said regiment, and Bassett, as major, had general command of the militia then in active service in Western Kentucky under orders from Augustus E. Willson, Governor of the commonwealth and commander in chief of the militia of the state; that on the afternoon of the 26th of November, 1908, Capt. Gans received information from Maj. Bassett that a movement or raid of armed men known as "night riders" was expected to be made that night in the neighborhood of Hopson and Wallonia, in Caldwell county, and was ordered by him to detail a squad of men from his detachment into said neighborhood to prevent if possible any trouble resulting from such movement or raid; that pursuant to and in obedience to said orders Gans detailed Franks, McFarland, Cook, and Kennedy on such described duty, directing them that if during any unusual hour of the night they encountered men traveling the highways in numbers more than two, to halt them, receive their explanation for so traveling at such hours, and, if deemed necessary, to search them, and if they were found carrying concealed weapons to arrest and bring them into camp at Princeton, to be thereafter turned over to the civil authorities of the county; that these orders were given by Gans, and obeyed by Franks, McFarland, Cook, and Kennedy in the performance of their duty as members of the state militia, and in obedience to orders received from superior officers; that on November 27th, about midnight, Franks, McFarland, Cook, and Kennedy, who were stationed on one of the public highways of Caldwell county, encountered the appellee, Smith, and five other men traveling on the highway, and after halting and searching them found in the buggy of Smith and one other of the party pistols, and in pursuance of their orders took them into camp at Princeton, permitting the other four travelers to go on their way; that they had no ill will or feeling against Smith, nor any real or fancied cause for having such feeling; nor did they mistreat or cause him to be mistreated except by arresting and delivering him to Capt. Gans in pursuance to orders.

With respect to the evidence, it only seems necessary to say that Franks, Cook, Kennedy, and McFarland, acting under the orders of their captain, arrested Smith some time after 10 o'clock at night as he was traveling on a public highway in company with five other persons in buggies, and that finding in the buggy in which he was riding a pistol owned by him, he was arrested and carried to Princeton, the headquarters of Capt. Gans, and there kept in custody by Gans until the next morning when he was turned over to the civil authorities upon the unfounded charge of carrying concealed about or upon his person a deadly weapon, as this weapon was found not on his person, but in the buggy. There is no evidence that Smith had theretofore or was then about to commit a public offense of any kind. In company with his neighbors who had attended a lodge of which they were members, he was on his way home at the time of his arrest. There is some evidence that he was treated in an abusive and insulting manner by the soldiers who arrested him, and that he suffered on account of exposure to the cold of the night. But, for the purposes of this case, we will not go into the question of any misconduct on the part of the arresting officers, preferring to treat the case, as the facts justify us in doing, as if Smith while peaceably and rightfully traveling on the public highway was arrested and detained without authority, unless warrant for his arrest and detention sufficient to justify the militiamen can be found in the orders that were given to them by their superior officer. We will also assume that the arrest and detention of Smith was made in strict obedience to orders received by Franks and his comrades from their superior officer, Capt. Gans; and that Capt. Gans received the orders that he gave to Franks and the privates from his superior officer, Maj. Bassett; that Maj. Bassett was acting in obedience to and under the authority of the Adjutant General of the state; and that the Adjutant General was acting under orders from the Governor of the state. In short, we will take it for granted that the militiamen were regularly ordered into active service by the Governor of the state, and that everything the officers and privates did was strictly in obedience to orders issued by their superior officers and received by them in accordance with the laws and regulations governing the state militia.

Treating the facts in this way, it is the contention of counsel for Franks that a soldier in active service is not amenable to the civil authorities for his reasonable acts performed in strict obedience to the orders of his superiors, and that in an action against him for false arrest or for false imprisonment or detention, he can depend upon his military orders for protection, and if they were reasonable and he did not exceed the authority conferred by them, they are a complete justification for his conduct; while counsel for the appellee, Smith, insists: First. That the Governor has no authority in law to order into active service the state militia, unless requested so to do by the civil authorities of the county, city, or town into which they are directed to go and operate, and so everything they did was in violation of law. Second. That a soldier, although regularly called into active service and acting within the strict line of his military orders, has no power to make an arrest or to do any act that a private citizen might not do, and therefore he can make no defense that will justify his acts except such a defense as any private citizen might make if sued upon a similar cause of action.

Considered from the standpoint of counsel, two principal questions naturally suggest themselves: First. Has the Governor in the exercise of the authority conferred upon him by law and without being requested so to do by a civil officer of any city, town, or county, the power to call out and order into active service the state militia, and direct their movements and operations without placing them under the orders or control of the civil authorities or any of them in the territory into which they are sent? Second. Are members of the state militia when acting in obedience to orders given to them by a superior officer liable in a civil action for making an arrest or doing any other reasonable act they are commanded by a superior officer to do?

Section 69 of the Constitution declares: "The supreme executive power of the commonwealth shall be vested in a chief magistrate, who shall be styled the 'Governor of the Commonwealth of Kentucky."'

Section 75 provides that: "He shall be commander-in-chief of the army and navy of this commonwealth, and of the militia thereof, except when they shall be called into the service of the United States; but he shall not command personally in the field, unless advised so to do by a resolution of the General Assembly."

And section 81...