Rodgers v. Schroeder
| Decision Date | 21 September 1926 |
| Docket Number | No. 19511.,19511. |
| Citation | 287 S.W. 861 |
| Parties | RODGERS v. SCHROEDER et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Franklin County; R. A. Breuer, Judge.
Action by Edward Rodgers against Harry Schroeder and another. Judgment for plaintiff, and defendants appeal. Affirmed.
James Booth and Virginia J. Booth, both of Pacific, and Jesse H. Schaper and H. A. Krog, both of Washington, Mo., for appellants.
W. L. Cole, of Union, for respondent.
This is an action for personal injuries. The petition charges that, on April 30, 1925, while plaintiff, in company with his wife and others, were driving in an automobile upon a public highway leading from Washington to Union, known as the Washington Union road, defendants unlawfully, willfully, wantonly, and maliciously assaulted plaintiff, and fired numerous shots at him from pistols, and followed the plaintiff as he proceeded toward Union, and crowded their vehicle in which they were driving in front of the plaintiff's automobile, and forced his automobile off the road at a point where the road was elevated several feet above the adjacent lands, causing his car to be overturned, and that plaintiff sustained severe injuries to his face head hand and body as a result thereof. The answer denies generally the allegations of the petition, and charges by way of an affirmative defense that the defendant Richard Shelton was, at the time of the alleged assault, marshal of the city of Washington in the county of Franklin and state of Missouri, duly organized and existing as a city of the third class under the laws of the state of Missouri, and that the defendant Harry Schroeder was, at the time of the alleged assault, assistant marshal of said city; that there was at the time in force and effect in said city ordinances providing that no one shall drive a motor vehicle within the limits of the city on a public highway or street at a greater rate of speed than 15 miles per hour; that motor vehicles, when driving north or south on Jefferson street, should come to a stop on approaching the intersection of Jefferson street with Fifth street, and before passing over said intersection; and that persons violating any of the provisions of said ordinances shall be guilty of a misdemeanor; that the plaintiff, when driving a certain motor vehicle south on Jefferson street in said city, failed to come to a stop when approaching and before passing over said Fifth street, where said Jefferson street intersects said Fifth street, and drove and operated said motor vehicle on and along said Jefferson street at a greater rate of speed than 15 miles per hour; that the plaintiff thereby violated the provisions of said ordinances; and that be violated the same in the presence of the defendants; that the defendants undertook to arrest the plaintiff for the violation of said ordinances, but that plaintiff resisted arrest, and, for the purpose of avoiding arrest, fled from the defendants in said motor vehicle over and along said Jefferson street; that thereupon in the discharge of their duties as such officers they pursued plaintiff on or along said Jefferson street, and overtook him on said Jefferson street, and attempted to arrest him, but that in so doing they did not at any time use more force than was reasonably necessary to make such arrest; that any and all injuries that plaintiff may have sustained were the direct result of his own unlawful act in failing and refusing to submit to such arrest by said defendants, and in escaping from such arrest by defendants.
The cause was tried to a jury; there was a verdict and judgment in favor of plaintiff for $500; and the defendants appeal.
On the evening of April 30, 1925, the plaintiff, who resided at Union in Franklin county, drove in a Ford touring car to Washington, in the same county, to attend church. He was accompanied by his wife and three girls, Ruth Gerling, Mittie Adams, and Ethel Adams. After having attended church, plaintiff, with his wife and three guests, starter home about 10 o'clock. He drove south on Jefferson street and the public road, which is a continuation of Jefferson street, and runs south from Washington to Union. On arriving at a point on the public road something over a quarter of a mile south of the southern limits of Washington, the car was overturned, and plaintiff was thereby injured.
The plaintiff's testimony, which was corroborated by the testimony of his wife and guests, shows that he stopped his car on approaching the intersection of Jefferson street with Fifth street, and before crossing over the same, and then drove south on Jefferson street at a speed of about 10 miles per hour; that, while he was so driving south on Jefferson street, and when he had reached the outskirts of the city, the defendants, in a large touring car, drove up behind him, sounding their horn; that he turned his car to the right to let them pass; that they passed him, and stopped their car on the right side of the street some distance in front of his car; that they got out of their car, and one of them exhibited a gun and said to plaintiff, "Damn you, stop, damn you, stop"; that they did not proclaim their official character, nor their purpose; that they wore no insignia indicating their official character; that plaintiff, believing that he was being beset by robbers, declined to obey their command to stop, and drove on south toward home at the best rate of speed he could make with his Ford car: that defendants followed in their large touring car, and, as they did so, fired a number of shots from their revolvers; that, on overtaking the plaintiff, they drove along close by the side of his car on the left; that the cars were then moving rapidly; that defendants, by veering their car to the right, and in front of plaintiff's car, crowded or forced it off the road into the ditch, whereby it was overturned; that defendants' car continued south, and stopped a short distance ahead of plaintiff's overturned car; that plaintiff and the parties with him, abandoning their car, ran across a field to a farmhouse, and were thence taken to Union, where plaintiff received medical attention.
The defendants testifies that they were in their car at the northeast corner of the intersection of Jefferson and Fifth streets when the plaintiff was proceeding south on Jefferson street; that plaintiff was exceeding a speed of 15 miles per hour, and ran over the intersection without stopping, in violation of the ordinances of the city; that they followed him for the purpose of arresting him for the violation of the ordinances; and that what they did was done in their attempt to arrest him. They also testified that they made no attempt to arrest him after he got beyond the city limits, and denied that they crowded or forced him off the road or caused his car to overturn. They stated that they ran past the plaintiff, and stopped in the road ahead of him for the purpose of discovering his identity, and that they were 400 feet ahead of him when his car overturned. It is conceded that defendants had no warrant for plaintiff's arrest.
The court, at the instance of the plaintiff, gave to the jury an instruction advising them that the defendants had no right to make arrests outside of the limits of the city of Washington without being in possession of a warrant authorizing them so to do. ?he action of the court in giving this instruction is assigned as error here. The defendants insist that, under the provisions of sections 8239 and 8240, R. S. 1919, they had the power as marshal and assistant marshal of the city of Washington to make arrests without process in cases of offenses against the laws of the city committed In their presence, and that they were also clothed with power to pursue the plaintiff beyond the limits of the city in order to effectuate his arrest. The sections of the statute relied on are as follows:
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