Grau v. Forge

• Decision Date: 07 March 1919
• Citation: 183 Ky. 521,209 S.W. 369
• Parties: GRAU ET AL. v. FORGE.
• Court: Kentucky Court of Appeals

209 S.W. 369

183 Ky. 521

GRAU ET AL. v. FORGE.

Court of Appeals of Kentucky.

March 7, 1919

Appeal from Circuit Court, Campbell County.

Suit by Albert Forge against Clifford Grau and another. Judgment for plaintiff, motion for new trial overruled, and defendants appeal. Reversed, with directions to grant new trial.

Barbour & Bassmann, of Newport, for appellants.

William A. Burkamp and Phil J. Ryan, both of Newport, for appellee.

THOMAS J.

The appellant Clifford Grau was a policeman in the city of Newport, and had executed bond as required by law, with his codefendant and coappellant. National Surety Company, as surety thereon. This suit was brought by appellee, plaintiff below, Albert Forge, against the policeman and his surety, to recover damages for alleged false arrest and for damages resulting from an injury inflicted upon plaintiff by the policeman, because of an alleged malicious assault and battery committed by him upon plaintiff after he was put under arrest.

The answer admitted the arrest, but justified it upon the ground that the defendant policeman had reasonable grounds to believe, when it was made, that plaintiff had committed a felony, and the assault and battery was attempted to be justified because it was alleged that plaintiff tried to make his escape and first made an assault upon the officer and that no more force was used than was necessary to prevent the escape, or appeared in the exercise of a reasonable discretion to be necessary to save defendant from bodily harm threatened and about to be inflicted upon him by plaintiff. These defenses were put in issue, and upon trial there was a verdict and judgment in favor of plaintiff for the full amount sued for, $1,000, and, defendants' motion for a new trial having been overruled, they prosecute this appeal.

A number of grounds are relied upon as constituting prejudicial error sufficient to authorize a reversal of the judgment, but we deem none of them of such importance or materiality as to deserve our consideration, except such as may be referred to during the progress of this opinion. Before taking up any of the grounds urged, we think it necessary to make a substantial statement of the facts.

Plaintiff is about 30 years of age, a printer by trade, and resided in the city of Newport. On the Saturday night in question he went to the home of a friend, where others had met, and the crowd consumed a pitcher of beer, which according to the proof, was but one glass each. They remained there and talked from about 7:30 until after 10, when plaintiff and a companion started to the former's boarding house for the purpose of spending the night. On the way they stopped at a saloon, and went in for the purpose of obtaining another glass of beer. While plaintiff was drinking it, defendant and another policeman arrested him. They had no warrant, and he had not committed any offense in their presence. They started with him to police headquarters, and according to plaintiff's testimony, when they had gone something like a square, defendant struck plaintiff in the mouth with such force as to loosen some of his teeth and bruise his lips and gums, causing them to bleed quite freely. The force of this lick, according to plaintiff's testimony and that of his witness, was sufficient to cause him to fall to the walk, but for the support of the defendant and a fellow policeman between whom he was walking. A short distance further along on the route, according to plaintiff's proof, defendant struck him another blow by the side of the head, and it was as severe as the first one. When they arrived at police headquarters, the officer in charge, after questioning plaintiff and his witness and others professing to have any knowledge upon the subject, released plaintiff, which ended the matter; there being no further prosecution.

But a short while before the arrest one Harvey Sipple, a boy about 15 years of age, who lived at Newport, stated to the officer in charge of the police headquarters (and who was superior to plaintiff) that some one had attempted to rob him on Fifth street. He went into detail about the supposed felon, who, as he stated, inquired of him if he had any money, stating that he, the felon, wanted it, and made an effort to get to his pockets; but the witness escaped and ran up the street, with the supposed robber pursuing him. Witness eluded the robber but related his story to a policeman by the name of Armstrong, who advised witness to look around and see if he could locate the man who had attempted to rob him, which he did, and pointed out plaintiff, who was in the saloon referred to, as being the guilty person. Witness and Armstrong immediately went to police headquarters, where after making his statement, defendant and another policeman were detailed to make the arrest, and they went with the witness Sipple to the saloon, where plaintiff was pointed out to defendant as the guilty person, whereupon he was arrested, as hereinbefore stated. On that occasion Sipple was not only positive of plaintiff's guilt, but upon the trial of this case he was firmly of the opinion that plaintiff was the man who tried to rob him.

It is first insisted that a peremptory instruction should have been given to find for defendants upon that branch of the case complaining of the false arrest, upon the two grounds: (a) That defendant, in making the arrest, was acting under the direct orders of a superior officer; and (b) that the uncontradicted facts show that he had reasonable grounds to believe plaintiff guilty of a felony.

In support of contention (a) It is urged that an inferior police officer is bound to obey the orders and directions of his superior, and that in doing so he is not amenable to the person arrested, although the arrest was wrongful and without warrant of law; and this conclusion is sought to be drawn by analogy from that principle of the law which excuses an individual from liability when called upon by an officer to assist in making an arrest, although the officer was proceeding without authority, and some cases in other states as well as those of C., N. O. & T. P. Ry. Co. v. Cundiff, 166 Ky. 594, 179 S.W. 615, Ann. Cas. 1916C, 513 and Franks v. Smith, 142 Ky. 232, 134 S.W. 484, L. R. A. 1915A, 1141, Ann. Cas. 1912D, 319, from this court, are relied upon. We do not doubt the principle of law which, under the circumstances mentioned, excuses a private citizen from liability, however wrongful the arrest might have been; but that principle cannot be extended so as to protect an officer, although subordinate to another, who directed the arrest. The precise point was determined contrary to the contention here made in the case of Leger v. Warren, 62 Ohio St. 500, 57 N.E. 506, 51 L. R. A. 193, 78 Am. St. Rep. 738, and substantially so by this court in the case of Franks v. Smith, supra. Aside from these express determinations of the question, the two situations are by no means analogous. When a citizen is called upon to assist an officer in making an arrest, the law makes it his duty to obey and act at once, and he is justified in assuming that the officer is acting within his official duties and under authority duly conferred by the law. To permit a citizen in such cases to delay the arrest, by withholding his assistance until he can satisfy himself of the legality of the officer's proceeding, would frequently result in the escape of criminals, and would seriously retard the...