Kagel v. Brugger

• Decision Date: 05 February 1963
• Citation: 19 Wis.2d 1,119 N.W.2d 394
• Parties: William J. KAGEL, a minor, by Gerald Dennenberg, his guardian ad litem, Plaintiff--Respondent, v. George BRUGGER, Forrest Brown, Allen Becker, and County of Washington, a municipal body corporate, Defendants-Respondents, Herbert E. Nead, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 394

119 N.W.2d 394

19 Wis.2d 1

William J. KAGEL, a minor, by Gerald Dennenberg, his guardian ad litem, Plaintiff--Respondent, v. George BRUGGER, Forrest Brown, Allen Becker, and County of Washington, a municipal body corporate Defendants-Respondents Herbert E. Nead, Defendant-Appellant.

Supreme Court of Wisconsin.

Feb. 5, 1963.

Kluwin, Dunphy, Hankin & Hayes, Milwaukee, for defendant-appellant.

Nathaniel D. Rothstein, Jack E. Keyes, Milwaukee, for plaintiff-respondent.

HALLOWS, Justice.

This is a case of first impression and presents the novel question whether a private citizen whose vehicle has been commandeered by a police officer and who has been directed to park his vehicle across a public highway can be held negligent in creating a roadblock or in failing to have his vehicle adequately lighted for such use. The trial court held and the plaintiff contends the complaint alleges ultimate facts sufficient to fairly inform the defendant of what he is called upon to meet. Colton v. Foulkes (1951), 259 Wis. 142, 47 N.W.2d 901; Weber v. Naas (1933), 212 Wis. 537, 250 N.W. 436; Bembinster v. Aero Auto Parts (1959), 7 Wis.2d 54, 95 N.W.2d 778. But the question on this demurrer is whether the complaint which fairly informs the defendant of what he is charged states facts which give rise to a duty of the defendant owing to the plaintiff as a matter of law.

Sheriffs and other law enforcement officers possess authority to set up roadblocks in a reasonable manner for the apprehension of fleeing violators. Such authority is inherent in the power and the duties of law enforcement officers if those duties are to be effectively discharged. The right to set up roadblocks to apprehend violators has been tacitly acknowledged in Freedman v. State (1950), 195 Md. 275, 73 A.2d 476; Anderson v. Nincehelser (1950), 152 Neb. 857, 43 N.W.2d 182; Anderson v. Bituminous Cas. Co. (1950), 155 Neb. 590, 52 N.W.2d 814; Gulbrandson v. Town of Midland et al. (1949), 72 S.D. 461, 36 N.W.2d 655; Love v. Bass (1922), 145 Tenn. 522, 238 S.W. 94. The use of the roadblock device is recognized as a specialized technique in the apprehension of violators by law enforcement officers. See FBI Law Enforcement Bulletins, June 1952, Vol. 21, No. 6, p. 2; October 1955, Vol. 24, No. 10, p. 18; May 1956, Vol. 25, No. 5, p. 5. The responsibility for the use of the roadblock and for the type used, whether blocking the entire highway or only one lane of traffic or of using lights and signs or a squad car at the side of the highway leaving all lanes open of any other device for stopping traffic upon the highway, it upon the law enforcement officer or agency establishing the roadblock.

In using the roadblock for the apprehension of law violators, a peace officer has the power to commandeer a motor vehicle. Its use is the modern outgrowth of the ancient hue and cry and of the power to call up a posse comitatus. ¹ We have said there is a duty resting on all citizens who know of the call to go to the relief of an officer even though the failure to perform such duty does not constitute an offense. It is a moral duty incident to citizenship. Krueger v. State (1920), 171 Wis. 566, 177 N.W. 917. The duty of a citizen to respond to a request or direction is even greater than to a call for assistance, which frequently was not addressed to specific individuals but a general call for help to those who may hear or learn of it. Can the duty of citizenship be any less upon a citizen who has specifically been commanded by an officer to furnish help, not only of himself, but of his vehicle and directed to use his vehicle in a particular way? It is true, in Randles v. Waukesha County (1897), 96 Wis. 629, 71 N.W. 1034, we held although the sheriff had the power to call up a posse, he did not have the power to call up for his use a horse belonging to a private citizen because in those days the sheriff was required to perform his duties by furnishing his own horse. The principle is not applicable to modern times when counties furnish police cars to sheriffs to perform their duties. The right to commandeer an automobile by a police officer to be used in hot pursuit of a law violator was recognized in Babington et al. v. Yellow Taxi Corp. (1928), 250 N.Y. 14, 164 N.E. 726, 61 A.L.R. 1354, and Berger v. City of New York (1940), 260 App.Div. 402, 22 N.Y.S.2d 1006, aff'd (1941), 285 N.Y. 723, 34 N.E.2d 894. Public policy has recognized the duty of a citizen to aid the law enforcement officer in arresting a fugitive or suppressing a disturbance of the peace, clothing him with the immunities and rights of a deputy. If injured in performing such duty and obeying the call or command of the police officer, the citizen is entitled to workmen's compensation as a deputy. Village of West Salem v. Industrial Comm. (1916), 162 Wis. 57, 155 N.W. 929, L.R.A.1918C, 1077; Vilas County v. Industrial Comm. (1939), 200 Wis. 451, 228 N.W. 591; and Shawano County v. Industrial Comm. (1935), 219 Wis. 513, 263 N.W. 590, (1939), 230 Wis. 165, 283 N.W. 304.

There is statutory authority for the power of the sheriff to call to his aid such persons as he deems necessary for prescribed purposes. Sec. 59.24, Stats. The duty of a citizen to obey the lawful orders of the traffic police is found in sec. 85.12(2), Stats.1955 (now sec. 346.04, Stats.). While this section is probably intended only to apply to the direction of traffic by police officers, it is a recognition of the duty of the citizen under those circumstances. Likewise, sec. 946.40, Stats., makes it a crime for one without reasonable excuse to refuse or fail upon command to aid a police officer if he is authorized under the circumstances to command such assistance.

When a police officer commandeers a motor vehicle of a private citizen and directs the driver in the particular use of the vehicle to aid him in creating a roadblock, the citizen has no duty to argue about the officer's right, the need for the roadblock, or the details of creating it. When performing his duties as a citizen in acting under the direction of the law enforcement officer, the private citizen is not a volunteer acting on his own initiative and such duty as he has not to block or part on a public highway is suspended under such circumstances. Whether the roadblock was adequate or inadequate, or whether it was negligently established and maintained is not the concern or the responsibility of the private citizen. This is not to say if a sheriff should commandeer a private vehicle in the hot pursuit of a criminal that the private citizen using his own judgment in the management and speed of his car could not be negligent. However, when a law enforcement officer commands the private citizen to do what would otherwise be a negligent act, the private citizen ought not be held to be negligent. The claimed illegality and negligence in establishing and maintaining the roadblock is an issue between the plaintiff and the defendant sheriffs but is not pertinent to the question of the defendant Nead's duty or liability.

It is contended even though the defendant might not be negligent in parking his semi-trailer across the highway to form the roadblock as directed by the deputy sheriff, Nead was negligent in not having his semi-trailer adequately lighted under the circumstances. The argument assumes an absolute duty on the defendant Nead to set out flares or other warning devices or have his semi-trailer equipped as an emergency vehicle. Secs. 85.06(18) and 85.12(5), Stats.1955. It is not to be expected or required that the private citizen whose vehicle is commandeered to establish a roadblock must use his individual judgment and initiative as to the adequacy of the lighting of his vehicle. The defendant's duty in regard to lights on his semi-trailer must be considered from the viewpoint that the semi-trailer was part and parcel of the roadblock established under direction of a law enforcement officer and not from the viewpoint of a truck which was placed in that position by choice or negligence of its driver. Since the responsibility for the truck being across the highway was that of the law enforcement agency, it was it duty to adequately light the truck and roadblock or to warn the traveling public of the danger. Nead had no such duty unless he had been directed by the police officer in charge and failed to carry out such direction. No such allegation is made in the complaint.

We cannot reach the opposite conclusion on the theory the private citizen while in the course of assisting a police officer is considered deputized for the purpose of workmen's compensation. See Anno., Workmen's Compensation, Public Emergency, 142 A.L.R. 657; Anderson v. Bituminous Cas. Co., supra, and cases therein cited. It is true, a police officer may be held liable for his negligent acts. 43 Am.Jur., Public Officers, sec. 279, p. 92; 47, Am.Jur., Sheriffs, Police and Constables, p. 851,...