Goins v. Hudson

• Decision Date: 13 December 1932
• Citation: 55 S.W.2d 388,246 Ky. 517
• Parties: GOINS v. HUDSON, Jailer, et al.
• Court: Kentucky Court of Appeals

55 S.W.2d 388

246 Ky. 517

GOINS v. HUDSON, Jailer, et al.

Court of Appeals of Kentucky

December 13, 1932

Appeal from Circuit Court, Whitley County.

Action by Demps Goins against T. J. Hudson, Jailer of Whitley County, and another. From a judgment for defendants plaintiff appeals.

Reversed and remanded as to defendant named, and affirmed as to the other defendant.

J. B Johnson, of Williamsburg, for appellant.

Tye Siler, Gillis & Siler and W. B. Early, all of Williamsburg for appellees.

CLAY J.

Demps Goins brought this suit against T. J. Hudson, jailer of Whitley county, and his surety, the Fidelity & Deposit Company of Maryland, to recover damages for false arrest and imprisonment. At the conclusion of the evidence for plaintiff, the court directed a verdict in favor of the surety. The case against the jailer was submitted to a jury, which returned a verdict in his favor. Goins appeals.

The allegations of the petition, briefly stated, are these: On Saturday, August 29, 1931, Goins, who lived in the country, was suffering from a toothache and came to Williamsburg to see a dentist, who gave him treatment. In the afternoon while en route to the courthouse he walked by the jail. Hudson, the jailer, was seated on the porch and invited him to come in. Goins accepted the invitation, and, after talking with Hudson a few minutes, Hudson asked him if he did not want to see some of the persons confined in jail. Goins accepted the invitation, and went into the jail. After remaining there about 10 minutes, he called to Hudson, the jailer, and requested that the jail door be opened so he could go home. Thereupon Hudson wrongfully, unlawfully, willfully, maliciously, and without reasonable or probable cause therefor, and without legal authority and without informing him of his intention to do so, arrested Goins without his consent, and confined him in the jail from about 2:30 p. m. until 6 p. m. The pretended arrest was without a warrant, and Hudson, who made the arrest, did not take him before the most convenient magistrate or any magistrate of the county, but closed the jail door and did not give him an opportunity to communicate with any magistrate or to procure bond. Afterward Goins called to some of his friends passing by and procured his release, but only after he had been in jail for three and one-half hours, during which time he was restrained of his personal liberty, and suffered great pain, mental anguish, humiliation, and mortification. Hudson and his surety filed the same, but separate, answers in two paragraphs. The first paragraph was a general denial. In the second paragraph they pleaded that Hudson was the jailer of the county, and authorized to make arrests; that on the occasion in question Goins was drunk, disorderly, and profanely swearing in a public place, and in the presence of Hudson, the jailer, who arrested him for the offense of being drunk, disorderly, and profanely swearing in a public place; that theretofore the acting county judge for Whitley county had by a general order directed Hudson to confine any and all drunken persons in the jail until they became sober, without first bringing any such person before him as such magistrate; that, pursuant to and in obedience to said order, he arrested Goins and confined him for a short time while he was drunk; that he did not take Goins in his drunken condition to the nearest magistrate, but, as soon as practicable and within two hours, caused the acting county judge to go to the jail, and there took Goins before said magistrate; that Goins was still drunk, and the magistrate fixed a later day for his trial and released Goins on the promise of relatives that they would take him out of town and care for him until he became sober. Goins demurred to the second paragraph of each answer, and also made a motion to strike the allegation with reference to the order issued by the acting county judge. The demurrers were sustained. Thereafter Goins and his surety filed an amended joint answer pleading in substance that Goins, by express statements and conduct, waived any and all right to be taken before a magistrate, and consented to remain in the jail until the acting county judge could be procured to come to the jail, and then and there stated in words and substance that if Hudson believed he was drunk to leave him in jail, but to notify his son where he was, and said Hudson, acting on said statement, left Goins in jail until the presence of the acting county judge could be procured, and also notified Goins' son where Goins was. The issues were completed by a reply to the amended answer.

According to Goins, he was suffering from toothache, neuralgia, and "flu." His jaw was swollen from an abscess, and he visited Dr. Davis, the dentist, who treated him. As he passed the jail, Hudson said, "Hello, Uncle Demps, come in and have a chair." After talking a few minutes Hudson said, "Uncle Demps, anybody in jail you know you would like to see?" He replied that he did, and accompanied Hudson into the jail. After remaining there a few minutes he rapped on the door and Hudson came. He told Hudson he guessed he had been in there long enough. Hudson said, "Uncle Demps, I can't turn you out." He asked what was the matter. Hudson said, "You come down here all boozed up on something. You're drunk." He said, "I deny the charge," and told Hudson that he had only taken some liniment that the dentist had given him. Hudson turned around, walked off, and left him. It was then about 3 o'clock. He did not know when he walked in the jail he was going to be charged with any offense. Hudson had no warrant for him, and did not tell him he was arrested until the second time he came back. He was not taken before any magistrate or judge. He had not committed any offense in the presence of Hudson, or at all. He was there against his consent, and it was very "ill-convenient." Afterwards Ez Rains passed, and he hollowed to him, and told him to tell somebody to come get him out. They got word to his wife, and he was finally released by Joey Bolton. He was in the jail about three hours. L. D. Moore, city judge of Williamsburg, testified that he was at his office on the occasion in question, and did not leave until 4 or 5 o'clock. Garrett Goins, son of Demps Goins, testified that, after he learned that his father was in jail, he started toward the jail and met T. J. (Hudson), and asked him if his Dad was in jail. T. J. said, "Yes," that he had come down all boozed up, and he would not have arrested him if he had not been drinking in front of his house. He got in touch with the others and came to the jail about 5 o'clock. Afterward Joey Bolton came and released his father. Charley Hayes testified that, after Uncle Demps had called the jailer, he stayed in jail for a good while. Dr. R. H. Davis, the dentist, testified that when Goins came to his office he had an abscessed tooth. He gave him a mouth wash and a liniment to be applied to his gums. Goins asked him if he could take a drink of whisky to help him, and he replied it would make him worse. L. R. Uhl, who saw Goins on his way to the jail, never saw him commit any offense, and said that he was not drunk at the time. Others testified as to the condition of Goins' jaw, and efforts made to get him out of jail, but some of them stated that Goins was not drunk, and had not been drinking.

On the other hand, T. J. Hudson testified as follows: He had given Goins work in the jail for a while after he was elected, and they were friends. When Goins passed, he asked how he was. Goins replied, "I'm 60 years old, and never had the damn toothache as bad in my life." Goins also said "I got a drink of...