Shields v. Town of Durham

• Decision Date: 05 April 1895
• Citation: 21 S.E. 402,116 N.C. 394
• Parties: SHIELDS v. TOWN OF DURHAM.
• Court: North Carolina Supreme Court

21 S.E. 402

116 N.C. 394

SHIELDS v. TOWN OF DURHAM.

Supreme Court of North Carolina

April 5, 1895

Appeal from superior court, Durham county; Hoke, Judge.

Action by J. H. Shields against the town of Durham for damages for personal injuries. The complaint is as follows:

"(1) That the town of Durham is a municipal corporation, created by the state of North Carolina, having the power and authority, among its many powers, to appoint police officers or constables for the municipality, and having the power and authority to maintain, erect, and construct suitable houses for the imprisonment of persons charged with violating its ordinances and laws of the state. (2) That on or about January 1, 1893, and for some time previous thereto, and for some time subsequent thereto, one J. S. Scarlet was a duly appointed and commissioned public officer or constable of said town of Durham. (3) That on or about January 7, 1893, the said J. S. Scarlet, while acting in the pretended discharge of his duty of police officer of the defendant, and under color and by virtue of his said office, with force and arms, at and in the county of Durham, and in the state of North Carolina, unlawfully and willfully struck and beat the plaintiff, he, the said plaintiff, not being guilty of any violation of the laws of the state or of the ordinances of the town of Durham; and after such unlawful assault and battery upon the plaintiff as aforesaid, the said J. S. Scarlet, acting under his pretended authority and power as a police officer of the defendant, the town of Durham, and in the pretended discharge of his duty as such officer, unlawfully and willfully, with force and arms, arrested the plaintiff without warrant; the said plaintiff not violating any law of the state of North Carolina, or any ordinance of the town of Durham; and the said J. S. Scarlet, public officer of the defendant as aforesaid, did with force and arms unlawfully and willfully imprison the plaintiff in the guardhouse or jail of the defendant, and did detain him the said plaintiff, in said jail for more than twelve hours; all to the great damage and injury of the plaintiff. (4) That while plaintiff was unlawfully detained in the guardhouse or town prison of the defendant, as hereinbefore stated, the weather was excessively cold, the ground being covered with snow and ice; that the said guardhouse was a small room, exposed, having glass in its windows broken out, plaintiff was furnished with wholly insufficient bedclothes, and these offensive and unclean; during the time of plaintiff's imprisonment the fire that heated said guardhouse went out, and was not replenished, and no fuel furnished; and that by reason of and in consequence of the bad condition of said guardhouse of defendant, and the cruel negligence of the defendant, plaintiff suffered then greatly from the severe cold, and has since then, in consequence thereof, suffered great pain and sustained great injury to his health. (5) That the bad and dangerous condition of said guardhouse was well known to the defendant, but it unlawfully and negligently permitted it to be and continue. (6) That the defendant negligently and carelessly selected, appointed, and commissioned the said J. S. Scarlet to be a police officer of the town of Durham and the said J. S. Scarlet was wholly unfit and unsuitable to be a police officer of the defendant, as is well known. (7) That on account of the wrongful acts and conduct of the defendant, plaintiff has sustained great and serious injuries, from which he now suffers, to his great damage in the sum of two thousand dollars. Wherefore plaintiff prays judgment against the defendant for the sum of two thousand dollars; second, for such costs as are allowed by law third, for such other and further relief as is consistent with law and the facts proven."

The answer denied all the material allegations of the complaint. The issues and responses of the jury were as follows: "(1) Was plaintiff injured by negligence of defendant? Answer. Yes. (2) In what sum, if any, was he damaged? A. $200."

Judgment: "It is considered and adjudged that the plaintiff recover of the defendant the sum of two hundred dollars, and interest on the same from the 8th day of October, 1894, until paid, at the rate of six per cent. per annum."

The plaintiff was introduced as a witness in his own behalf and testified as follows: "I was imprisoned in the guardhouse of the defendant on January 7, 1893. The weather was severe. Had snowed during the day. The room was small, with a bunk for sleeping. The floor was zinc, and, from defect in the water pipe, floor was covered over with water. Several window panes were out. A mattress and an old dirty blanket were all the protection from the cold. Both were filthy and whole room offensive. A negro was in there, scratching like he had the itch. Was in guardhouse from twilight one afternoon till the next morning at 9 o'clock. Was sober. Suffered a great deal there, and have suffered more since. Caught cold, giving me pain in my jaw and one of my hands. Was rendered rheumatic, and still have very severe pain in the arm, thereby impairing my usefulness. Blanket was wet and dirty. The water had frozen on bottom of cell. Room was five feet square, and not room enough to move around in. Police officer put in a little coal at 9 o'clock that night, which went out, and this was the only effort to make a fire. There was none made in the morning. A stove was in the room over next to the window. There was only one blanket there, and that was too dirty to use. Room was six feet one way, and an iron railing ran across, separating me from the stove. Weather had been cold all that day and before. Nothing to eat or drink was furnished me. Cross examined: Had been arrested for being drunk Saturday night before." Mr. Morris, witness for plaintiff, testified as follows: "It was exceedingly cold weather, and had been for several days. I went down to guardhouse about 8 o'clock the next morning, and went on plaintiff's bond. Plaintiff was shivering, and seemed to be suffering from a cold. The west window had a broken pane or window light. Quite a breeze was blowing through when he approached. A stove was there, but no fire was in it. Shield's complained to me, saying that he had not slept, and that he had no covering. It was dark there, or there was very little light. Is Shield's brother-in-law." Mr. Hutchings, a witness for the plaintiff, testified as follows: "It was exceedingly cold weather, and had been for a week, and was very cold that night. I went to the country, but it was so cold that I could not travel; so left my horse, and came back on the train. There was snow and ice on the ground. Shields lives some five or six miles from town."

Defendant's evidence: Mr. Scarlet, witness for the defendant, testified "It was in the guardhouse. There was a good fire in the stove till I left, at 12 o'clock. There were two blankets and two mattresses to each cell. There was plenty of coal, and there were two mattresses and two blankets to each cell. There was no water there, and no water pipe tapped the room. The stove was red when Shields was put in there. He was drunk. There was good shutters to the windows of the room. Room was ten feet square, and the ceiling eight feet. Cross-examined: When we went in there the second time, Shields was asleep on the bunk. There were three windows to guardhouse, and the chief of police would have panes put in as fast as drunken men broke them out. The shutters were kept closed in cold weather. I went in there that night, and spread out the blankets, before putting Shields in, and saw that the fire was made up before going away. I and Shields have had several fights, but had nothing against him." Mr. Woodall, witness for the defendant, testified: "Was chief of police at this time, and remember the night in question. It was the town's duty to furnish blankets, and I was charged with that duty. Comfortable blankets were provided, and when they wore out would get new ones. Town furnished me with the means, and instructed me to keep plenty of blankets, and I did so to the best of my knowledge. There was plenty of coal on hand, and I was instructed to keep fire there all night when it was cold. Cross-examined: Shields was numb, and walked badly next morning. Had means furnished to put in glass and keep guardhouse comfortable." Mr. Cutts, Witness for the defendant, testified: "There was fire kept in guardhouse every night in cold weather. There were two bunks, and a mattress and a double blanket to each. There was no water where Shields was, and no way for water to get there. This was the Saturday night before. Don't know the condition on the night in question. Cross-examined: On this last night does not know whether there was any coal in cell or not. Was not there this last Saturday night, and does not know where Shields was placed." Mr. Cheek, witness for the defendant, testified: "Was policeman in January, 1893, and recollect the night in question. Went in the cell where Shields was about 6 o'clock in the morning. There was fire in the stove at that time. Shields was standing at the door, and he and I had a talk. Did not go in, and could not say blankets were there, but know they were always kept there. There were two double blankets for each bunk, and no single blankets, and good shuck mattresses when new. Cross-examined: It was the coldest weather that has been in years." Mr. Woodward, witness for the defendant, testified: "Was clerk of the board of town commissioners in January, 1893. Chief of police Woodall had full authority to provide full comforts for the guardhouse, and to provide what was necessary for keeping it up. His bills for coal, blankets, etc., were always approved and paid. Sometimes...