Griffin v. Russell

• Decision Date: 09 December 1914
• Parties: GRIFFIN ET AL. v. RUSSELL.
• Court: Kentucky Court of Appeals

170 S.W. 1192

161 Ky. 471

GRIFFIN ET AL. v. RUSSELL.

Court of Appeals of Kentucky.

December 9, 1914

Appeal from Circuit Court, Boyd County.

Action by Floyd Russell against James T. Griffin and the American Bonding Company. From a judgment for plaintiff, defendants appeal. Reversed and remanded for further proceedings.

Clyde R. Levi, R. D. Davis, and S. S. Willis, all of Ashland, for appellants.

Proctor K. Malin, of Ashland, for appellee.

MILLER J.

In this action the appellee, Floyd Russell, recovered a verdict and judgment for $1,000 against the appellants, James T. Griffin a policeman of the city of Ashland, and the American Bonding Company, of Baltimore, Md., his surety, as damages for the unlawful arrest of Russell and an unnecessary assault in making the arrest.

The facts are substantially as follows: On the night of February 12, 1912, Griffin was patrolling the streets of Ashland in the discharge of his duties as a policeman. Russell was a furnace hand for the Ashland Iron & Mining Company; and, on the night in question, he had remained at the station of the Chesapeake & Ohio Railway Company to meet a friend who would arrive at Ashland on the train that reached that point about 1 o'clock that night. After the arrival of the train Russell, in company with his friend who had left the train and another man, walked down the railroad to Ninth street where they separated; the two men going south on Ninth street to Central avenue toward their homes, and Russell going north on Ninth street to Carter avenue, and thence westwardly toward his home. When Russell reached the intersection of Carter avenue and Eighth street, Griffin and Kounz, another policeman, while standing in the street, according to their testimony, not far from the public light at the street intersection, saw Russell walking in the middle of Ninth street, and coming toward them. Earlier in the day Kounz had arrested a man, who had escaped from that officer; and he and Griffin were searching for him. They say that when Russell saw them standing in the street he started toward the sidewalk. Russell says Griffin called to him, saying "Where in the hell are you going?" Russell answered, "Whatin the hell is that to you?" Whereupon Griffin fired his pistol at Russell three times, the first shot inflicting a glancing flesh wound. There is the usual contradictory testimony as to what was said and done; Griffin saying he merely asked Russell where he was going, while Russell admits he used the profane language attributed to him. Furthermore, Russell says Griffin fired immediately after he had called to Russell, while Griffin says he did not fire upon Russell until after Russell had made a demonstration toward his hip pocket, and had pulled what Griffin thought was a pistol, but afterwards was shown to be a pocketknife. Russell admits he drew his knife, but says he only did so after he had been shot, and for the purpose of protecting himself against Griffin, who was advancing upon him. Russell was carried to the jail, where a physician dressed his wound. He was then sent home. The petition rests the cause of action upon the false arrest, and the shooting and wounding of Russell by Griffin. Subsequently, on February 23d, Griffin procured a warrant from the police judge, charging Russell with using abusive language upon the occasion of the arrest, which tended to cause a breach of the peace; and upon a trial of the case in the police court Russell was found guilty and fined $10. The answer traversed the petition, denied making the arrest, and alleged that the shooting...