Letow v. United States Fidelity & Guaranty Co.

• Decision Date: 10 November 1919
• Docket Number: 20769
• Citation: 83 So. 81,120 Miss. 763
• Parties: LETOW v. UNITED STATES FIDELITY & GUARANTY CO
• Court: Mississippi Supreme Court

83 So. 81

120 Miss. 763

LETOW v. UNITED STATES FIDELITY & GUARANTY CO

No. 20769

Supreme Court of Mississippi

November 10, 1919

1. APPEAL AND ERROR. Review of verdict. Conflicting evidence.

Where on the trial of a suit on the bond of a policeman for assaulting plaintiff while arresting him, there was a sharp conflict in the evidence and the jury found for the defendant, the supreme court on apeal will not disturb the verdict of the jury if the facts show a justifiable arrest and that no unnecessary force was used in making the arrest.

2 ARREST. Arrest without warrant. Violation of city ordinance.

Under section 1447, Code 1906 (Hemingway's Code, section 1204) providing for an officer or private citizen to make arrest without warrant for "indictable" offenses comitted etc., the word "indictable" in this section means such offenses as a grand jury may indict for and does not include municipal ordinances.

3. MUNICIPAL CORPORATIONS. Liability on policeman's bond. Assault while making arrest.

Where in a suit on a policeman's bond for assault while making an arrest, the defendant set up in justification of the assault the lawfulness of the arrest but failed to establish this defense, the plaintiff in such case was entitled to a peremptory instruction.

HON. R. S. HALL, Judge.

APPEAL from the circuit court of Forest county, HON. R. S. HALL, Judge.

Suit by M. Letow against T. P. Moore and the United States Fidelity & Guaranty Company. Plaintiff took a nonsuit as to Moore. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

No brief of counsel on either side found in the record.

Judgment reversed, and cause remanded.

Tally & Mayson, for appellant.

Stevens & Cook, for appellee.

OPINION

ETRRIDGE, J.

The appellant brought suit against T. P. Moore and the United States Fidelity & Guaranty Company, surety upon the official bond of Moore, who was a policeman in the city of Hattiesburg, alleging that Moore was a policeman and the said surety company became surety on his official bond in the penalty of five hundred dollars, conditioned for the faithful performance of the duties of said policeman, and that T. P. Moore, while claiming to perform the duties of the office, entered the plaintiff's place of business under claim of performance of official duties, and made a violent assault upon plaintiff, to his damage in the sum of five hundred dollars, and prayed for judgment for said amount.

Defendant filed the general issue, and also notice under the general issue that plaintiff at the time of the injuries complained of was engaged in the commission of the violation of the law in the presence of the defendant, T. P. Moore, who was then and there an officer of the law charged with the duties of enforcing the law, and that Moore undertook to arrest the plaintiff in proper and legal manner, and that plaintiff resisted said arrest, and then and there committed an assault upon the defendant, Moore, when and while he was attempting to make said arrest, and that the force and means employed by Moore were necessary in order to make said arrest and to protect the defender from the assault and battery being committed by the plaintiff, and that defendant only employed such force as was necessary to effect said arrest and to protect himself, and in law that whatever injury plaintiff sustained was sustained in resisting lawful arrest.

The plaintiff took a nonsuit as to the defendant, Moore, and the case proceeded to trial as to the surety company, the United States Fidelity & Guaranty Company.

The appellant was engaged in a restaurant and cold-drink business in the city of Hattiesburg, and had a little board containing the menu and prices of food served, which board was placed upon the sidewalk in front of appellants place of business. The policeman notified the appellant to remove the said board from the sidewalk. The policeman passing subsequent to this demanded to know why the board had not been removed, when the appellant claimed that he did not have to move it. Thereupon the policeman went to the chief of police, who told the policeman to return and give the appellant twenty minutes in which to remove the board, and, if not removed, to arrest him and bring him before the proper officer. The policeman thereupon returned to appellant's place of business, and notified him to remove said board within twenty minutes or he would arrest him, and then went away and returned after twenty minutes, and, the board not having been removed, he went into the place of business of the appellant, who was behind the counter in the restaurant, and made an effort to take hold of him, and appellant pushed his hand away, whereupon the policeman struck the appellant with his billy. Whereupon the appellant submitted and went with the policeman to the city hall, and afterward brought this suit.

The foregoing is the substance of the evidence from the appellee's standpoint. The appellant claims that the policeman came in his place of business in an angry manner and struck him when he was doing nothing to the policeman and while he was stooping over, attending to some want of a customer; that the policeman did not say anything before he grabbed him and struck him; that he was not trying to do anything to the policeman when he was struck or prior thereto; that the policeman treated him roughly, going along the street after arrest; that his jaw was swollen for eight days; that it hurt badly, and that it made him sick. He also said that the policeman had tried to make him quit operating a player piano, and that...