Pavish v. Meyers

• Decision Date: 09 May 1924
• Docket Number: 18246.
• Citation: 129 Wash. 605,225 P. 633
• Parties: PAVISH v. MEYERS et al.
• Court: Washington Supreme Court

225 P. 633

129 Wash. 605

PAVISH v. MEYERS et al.

No. 18246.

Supreme Court of Washington, En Banc.

May 9, 1924

Appeal from Superior Court, King County; Reynolds, Judge.

Action by Lawrence Pavish against Max Meyers and William B Severyns, Chief of Police of Seattle, and the New Amsterdam Casualty Company. From a judgment of dismissal, plaintiff appeals. Affirmed as to defendant Chief of police and the casualty company, and reversed as to first-named defendant with directions.

F. B. Carpenter and C. A. Schneider, both of Seattle, for appellant.

John W Heal, Jr., Thomas J. L. Kennedy, George A. Meagher, and Ray Dumett, all of Seattle, for respondents.

BRIDGES J.

The plaintiff seeks damages because of his alleged unlawful and unwarranted arrest by the defendant Meyers.

The plaintiff owns and operates a fish market in one of the storerooms fronting on a street in the city of Seattle. The defendant Meyers is a police officer of that city. The defendant Severyns is its chief of police, and the New Amsterdam Casualty Company furnished the official bond for the chief of police.

The plaintiff's testimony tended to show that on a certain date the defendant Meyers, while on duty, and while passing the plaintiff's place of business, and in the presence of other persons, held his hand over his nose and said, 'Oh, that place smells!' or words to that effect. He then went down the street some 50 or 100 feet and immediately returned, and while again passing plaintiff's place of business made similar remarks. At that time the plaintiff said to Meyers that his place of business did not smell bad, and that selling fish was better than peddling whisky, as the officer did, or words to that effect. Immediately the officer arrested him. He did not have any warrant for that purpose. The trial court granted a motion for nonsuit and plaintiff has appealed from a judgment of dismissal.

One of the ordinances of the city of Seattle provides that any person who is guilty of conduct which tends to disturb the public peace shall be guilty of a misdemeanor. The fact that Officer Meyers made the arrest without a warrant therefor is immaterial under the facts of this case, because the appellant's alleged offense was in the presence of the officer, and, if an offense at all, it was a misdemeanor. It is a general rule of law that a peace officer may, without a warrant therefor, arrest one who, in his presence, breaches the peace or threatens so to do. 25 Cyc. 465. Appellant claims that his conduct was not such as tended to breach the peace. But in this respect, speaking generally, we cannot agree with him. He openly accused Officer Meyers of being a peddler of whisky, and that, of course, is a serious offense under the laws of this state. Such a charge, standing alone, would tend to breach the peace and justify arrest. That words of a degrading character, addressed to another, may tend to breach the peace is well settled by the authorities. While there appears to be some conflict on the question, the great weight of authority supports the view we have taken. Delk v. Commonwealth, 166 Ky. 39, 178 S.W. 1129, L. R. A. 1916B, 1117, Ann. Cas. 1917C, 884, and note commencing on page 889; Elmore v. State, 15 Ga.App. 461, 83 S.E. 799; Davis v. Burgess, 54 Mich. 514, 20 N.W. 540, 52 Am. Rep. 828; Heath v. Hagan, 135 Iowa. 495, 113 N.W. 342; State v. Brumbley, 53 Mo.App. 126.

Nor, in our opinion, does it alter the situation that the degrading or abusive words were addressed to a peace officer. There is a conflict of authority also upon this question. The cases we have found take the position that offensive words addressed to a peace officer do not tend to breach the peace, because it is the sworn duty and business of the officer, not only not to breach the peace himself, but, on the contrary, to keep others from so doing, the general idea of these cases apparently being that, because a man is an officer of the peace, he must not, and will not, permit abuse of himself to so rouse him as that he will or is likely to breach the peace. See People v. Lukowsky, 94 Misc. 500, 159 N.Y.S. 599; Salem v. Coffey, 113 Mo.App. 675, 88 S.W. 772, 93 S.W. 281. The first case cited is exceedingly brief, gives no reasons, and cites no authority. In the second case cited there was a dissenting opinion, and besides it was later overruled by the same court. Those cases which hold to a contrary doctrine are based on the principle that, although it is the duty of a peace officer to preserve the peace, yet he is like other human beings and under great stress of abuse may forget his official duty and fight back. He does not lose his human nature simply because he wears a star. But if he, for the time being, observe the injunction of his oath, the offense still tends to breach the peace, because, once off duty and being a private citizen, he may resent the abuse and thus violate the peace. The cases we have been able to find so holding are Davis v. Burgess, supra; Warwick v. State, 17 Ind.App. 334, 46 N.E. 650; Elmore v. State, supra; De Soto v. Hunter, 145 Mo.App. 430, 122 S.W. 1092. In the latter case the holding in the prior case of Salem v. Coffey, supra, was severely criticised and in effect overruled. In Davis v. Burgess, supra, Justice Sherwood, writing in a case where the facts were very similar to those here, said:

'It can make no difference that the officer was made the subject of the offender's wrong acts and conduct on the occasion. Officers are entitled to the same protection as other persons. It was the offense against the public which the people could punish, and the officer only acted for them in making the arrest. He had no personal interest in the matter.'

In the case of Elmore v. State, supra, the court said:

'Nevertheless an officer is entitled to the same protection from opprobrious words or abusive language which the law affords to the private citizen, and in fact it would appear that an officer would be more entitled to such protection because of the very fact that he is prohibited from protecting himself by force against any insults coming from one legally in his custody. Then, too, an officer should not be tempted to disobey the law, which wisely prevents him from replying with a blow to the vilest of verbal affronts from one in his legal custody, by the consciousness that, because of his assumption of the obligations and restraints of office, he has been shorn of that protection which is afforded to the humblest private citizen, and that even the grossest insults offered to him, under such conditions, must go unredressed, unless forcibly resented at the time. * * * Again, though, on account of circumstances or obligations imposed by office, one may not at the time be able to assault and beat another on account of opprobrious words or abusive language, the words or language might still tend to cause a breach of the peace at some future time, when the person to whom they were addressed might be no longer hampered by physical inability, present conditions, or official position.'

But conceding the appellant's conduct was such, without any other showing of facts, to justify his arrest, yet the court was in error in nonsuiting him. There was testimony tending to show that respondent Meyers provoked appellant into calling him a peddler of whisky. In a case in which the public is interested, such as a trial for a breach of the peace, it may be that proof of provocation would be foreign to the issue, but it must be kept in mind that this is a civil suit in which the public has no interest. Here appellant is claiming damages because of his arrest. The question is not whether he is guilty of creating a breach of the peace but whether, under all the circumstances, Officer Meyers was so justified in making the arrest as to relieve him of damages. It would be an unfortunate state of affairs if a policeman could provoke another to commit a breach of the peace, arrest him, and then, when sued for damages for the arrest, defeat the action by simply showing that because the other was breaching the peace the arrest was lawful and justified, and that provocation would be immaterial and beside the question. Such a doctrine would permit the officer to take advantage of his own wrong. Under such a theory police officers would have it in their own power, under color of authority, to reap private revenge. If a policeman desired, out of malice, to arrest a private citizen all he would have to do would be to use such abusive and contemptuous language to that person as...