Kelly v. Cook

• Decision Date: 27 October 1898
• Citation: 41 A. 571,21 R.I. 29
• Parties: KELLY v. COOK, City Treasurer.
• Court: Rhode Island Supreme Court

41 A. 571

21 R.I. 29

KELLY

v. COOK, City Treasurer.

Supreme Court of Rhode Island.

Oct. 27, 1898.

Action by Michael F. Kelly, administrator of the estate of John H. Kelly, against Samuel P. Cook, city treasurer of Woonsocket, for damages for an unauthorized arrest of his intestate. Demurrer to declaration sustained.

Walter I. Ballou, for plaintiff.

Erwin J. France, for defendant.

TILLINGHAST, J. The declaration al leges, in substance, that on the 17th day of February, 1897, the city of Woonsocket, by Charles A. Hoar, a police officer and servant of said city, without authority of law, did arrest John H. Kelly (the plaintiff's intestate), and by its police officers, being servants of said city, did, without authority of law, confine said Kelly and deprive him of his liberty for 15 hours in the police station in said city,—said station being then and there under the control of the city,—and thereupon, upon the unlawful arrest and confinement of said Kelly, it became the duty of said city to exercise the utmost diligence in the care of said Kelly, in order that his bodily health might not become impaired while in said custody; that while so confined he became ill, and said city, wholly unmindful of its duty in that regard, neglected to provide for him; and that, as a result of said neglect, said Kelly's illness increased and caused his death in said police station on the 18th day of February, 1897, although he was in the exercise of due care. Wherefore the plaintiff, as administrator on the estate of said Kelly, brings this action. The defendant demurs to the declaration on several grounds, but mainly on the ground that the city is not liable for the negligence, misconduct, or wrongful acts of its police officers.

It is conceded by the plaintiff that police officers appointed by a city to perform a public service are not its agents or servants, so as to render it responsible for their unlawful acts or negligence while in the performance of such service, but are to be regarded as public or state officers, with such powers and duties as the state confers upon them, and that the doctrine of respondeat superior is not applicable. It is also conceded that said Charles A. Hoar was not the servant of said city in any other capacity than as one of its police officers. The plaintiff contends, however, that, if the public service be the arrest and detention of persons, then police officers must have an appointment which will confer the power necessary to the performance of that service; otherwise they cannot be said to be public officers when they make an arrest Stated more concisely, the plaintiff's claim is that the mere appointment of said Hoar as a police officer conferred no power upon him to make the arrest in question; that, in order to have clothed him with such authority, it was necessary that he should have been made a police constable. Whether this contention is correct or not, it is not necessary for us now to decide; for, if said Hoar was authorized to make the arrest, plaintiff admits that he has no case. And, if he was not, then, it being conceded as aforesaid that he was not a servant of the city in any other capacity than as one of its police officers, which is undoubtedly the law, it follows that in making the arrest he was not acting within the scope of his authority, and hence was a mere trespasser. The mere fact, even if it be a fact, that said Hoar, in his capacity as a policeman simply, had no authority to arrest and detain plaintiff's intestate, did not have the effect to strip...