Pesterfield v. Vickers

• Decision Date: 30 September 1866
• Citation: 43 Tenn. 205
• Parties: J. M. Pesterfield and the Mayor and Aldermen of Knoxville v. Edward Vickers.
• Court: Tennessee Supreme Court

43 Tenn. 205

J. M. Pesterfield and the Mayor and Aldermen of Knoxville

v.Edward Vickers.

Supreme Court of Tennessee.

September Term, 1866.

FROM KNOX.

At the October Term, 1860,, there was a verdict and judgment against the plaintiffs in error, from which they appealed. Judge DAVID T. PATTERSON, presiding, by interchange with Judge GEORGE BROWN.

JAMES R. COCKE, for Plaintiff in Error.

O. P. TEMPLE & ANDREWS, for Defendant in Error.

SHACKELFORD, J., delivered the opinion of the Court.

This is a suit brought by the defendant in error, against the plaintiff in error, for an assault and battery and false imprisonment. It appears from the record, that the plaintiff in error, Pesterfield, was a police officer in the City of Knoxville. On the ____ day of ____, 1858, the defendant in error, on one of the public streets, was partially intoxicated, and passing, had a quarrel with a negro servent, who had placed a ladder on the street to clean the gas lamps. Some citizens on the streets intervened, and prevented him from molesting the servant. Angry words ensued on the part of the defendant in error. He was boisterous and violent in his language. This was on the public street, near the Court-House. Shortly thereafter, the plaintiff in error, came up and arrested him, and started with him to the lock-up house of the city. A difficulty ensued between them. The plaintiff in error, struck him and knocked him down. He was afterwards taken to the lock-up and kept during the night. After he was imprisoned, the friends of the defendant in error applied to the Recorder, about dusk, to bail him. He was engaged, and did not attend to it. They then applied to the Mayor and several of the Aldermen; they having met in council over the lock-up house. They declined to act, and he was de tained in custody until the next morning, when he was discharged by the Recorder, upon the payment of a small fine. Upon the trial, the plaintiff, in error, justified his arrest under ordinances made by the Mayor and Aldermen for the government of the City of Knoxville, passed and promulgated on the ____ day of ____, 1852, which are as follows:

“Section 2. Be it further ordained by the authority aforesaid, That when any person shall violate the ordinances now in force in said corporation, made to prohibit persons from cursing and swearing in the public streets, and exhibiting their nakedness, and for hallooing and making a loud noise in the night time, within said corporation, if such persons shall be in a state of intoxication when arrested by the officer, with or without warrant, then, in that case, such persons shall be locked up in said jail or calaboose.”

By the sub-section of section second, it is provided, that the Marshal shall have the right to arrest when any misdemeanor is committed in his presence; or whenever the commission of a misdemeanor shall be otherwise brought to his knowledge.

Section third, provides, that the party arrested may be committed. The sub-section of that section, provides, that when the officer deems it necessary for the safe-keeping, he may be committed. In all other cases, the prisoner shall be immediately carried before the Recorder, or the Mayor, or some of the Aldermen of the city, for trial.

The plaintiff in error, Pesterfield, had no warrant at the time the arrest was made. The cause was submitted to a jury. On trial, the Circuit Judge, among other things not excepted to, charged the jury, in substance, as follows:

“The plaintiff in error, Pesterfield, as one of the police officers of Knoxville, would have the right to arrest the defendant, for a violation of any of the ordinances of the city; and, in doing so, he would not be guilty of trespass, if the breach occurred in his presence; but he would have no authority to make an arrest, on the information of others, without a warrant; that it was not required of the plaintiff in error to arrest immediately on the breach of the ordinance by the defendant in error. But if the arrest was made by the plaintiff, for a violation of the ordinances in his presence, he would not be guilty of transcending his authority as a public officer; that if the plaintiff in error, Pesterfield, and the others aiding and assisting him, used more violence and rigor than was necessary, to secure and bring him to trial, they would be guilty as trespassers; that the defendant in error was entitled to a speedy trial, and that it was the duty of the plaintiff in error, Pesterfield, to take him before the Recorder, Mayor, or one of the Aldermen of Knoxville, without unnecessary delay, that his case might be heard and disposed of by trial; that if the plaintiff in error, Pesterfield, and those acting under his command, confined the defendant in the calaboose until 3 o'clock the next day after the arrest, they would be guilty of false imprisonment, and liable in damages, the ordinances of the city of Knoxville to the contrary, notwithstanding.”

The Court instructed the jury, that “It was the duty of the Mayor and Aldermen to take the bail of the defendant in error. If the Recorder refused so to do, after the defendant was committed to the calaboose, on bail being offered by him or his friends, if they refused, they would be guilty of false imprisonment, and liable in damages.”

A judgment was rendered for defendant in error; a new trial was moved for, which was overruled; and an appeal taken to this Court.

The questions for our consideration, are, 1st, Was the plaintiff in error, Pesterfield, justified in making the arrest without a warrant? 2d, Is the Corporation of Knoxville liable for the malfeasance or misfeasance of its officers, in the discharge of the duties incumbent on them by law?

We have referred to various decisions, made in the English and American Courts, showing the authority of a peace officer to arrest an offender without a warrant, though the offense may not have been committed in...