Usher v. Severance

• Citation: 86 A. 741,86 Vt. 523
• Parties: USHER v. SEVERANCE.
• Decision Date: 08 May 1913
• Court: United States State Supreme Court of Vermont

86 A. 741

86 Vt. 523

USHER

v. SEVERANCE.

Supreme Court of Vermont. Windham.

May 8, 1913.

Exceptions from Windham County Court; Frank L. Fish, Judge.

Action by Thomas Usher against W. S. Severance. Judgment for defendant, and plaintiff brings exceptions. Reversed and remanded.

This is an action for assault and battery; pleas, general issue, and three special pleas in justification. Trial by jury, verdict and judgment for the defendant.

At the time in question the plaintiff was a resident of Bellows Falls, an incorporated village in the town of Rockingham, and the defendant was the chief of police in said village. It appeared that the village owned a police station house of which the defendant as chief of police had a key; and according to his testimony he had the care and custody thereof. It also appeared that on the evening of September 21, 1910, the defendant, with the assistance of other officers, arrested one Morris Meany, a boy of the age of 14 years, charging him with the larceny of bicycles, and took him to the police station, where the defendant and another officer, in the presence of five other police officers of the village, began to question the boy about his connection with the taking of the bicycles, with the view of showing him guilty of stealing them, and of finding out where they were; that while the boy was thus being questioned Thomas Meany, the boy's father, Mrs. Thomas Meany, his stepmother, the plaintiff, the boy's uncle, and one or two other of the boy's relatives, came into the station house. It also appeared that the boy had for several years prior to the day of his arrest lived with his uncle, the plaintiff.

The plaintiff's evidence tended to show that Thomas Meany, as soon as he arrived at the station house, protested against the officers further questioning his son, and that the officers told him to "shut up," or they would put him out of the station house. It appeared that the plaintiff as soon as he arrived there told the boy not to answer any more questions which the officers might ask him, and later the defendant ordered the plaintiff out of the station house. The plaintiff's evidence tended to show that he told the officers he was the boy's uncle, and had come there for the purpose of aiding and securing the release of the boy, and to give him any other necessary assistance; that the defendant without provocation upon the part of the plaintiff other than to advise the boy not to answer the questions the officers were asking, threw the plaintiff out of the station house, and caused the injury for which this action was brought; and that the plaintiff objected to the officer questioning the boy in regard to the matter for which they had arrested him until the boy had obtained the services of a lawyer.

The defendant's evidence tended to show that, after the plaintiff had told the boy not to answer any questions put to him by the officers, the latter continued to ask the boy questions; that thereupon the plaintiff and other relatives of the boy then in the station house created a disturbance by boisterous, profane, and vulgar language, and called the defendant and other officers indecent names, and that the defendant told the plaintiff and other relatives of the boy that they must cease their disturbance or leave the station house; that the plaintiff, together with the said other relatives, continued the disturbance and refused to leave the station house, whereupon the defendant lightly placed his hand upon the plaintiff, led him to the door of the station house, opened the door, and the plaintiff walked out, offering no resistance to going out; that the plaintiff received the injury complained of by not properly stepping from the station house door to the sidewalk; that the threshold of the door was six inches higher than the sidewalk, and that the plaintiff was not acquainted with the police station or its surroundings; that the alleged injury occurred between 9 and 10 o'clock at night, and that the sidewalk and entrance to the station house was poorly lighted, all of which the plaintiff's evidence denied, except that there was no controversy as to the threshold of the station door being six inches higher than the sidewalk, and that the plaintiff was unacquainted with the interior of the police station and its surroundings, and had never been in the station before. No warrant or other legal paper authorizing the defendant or any officer to arrest the boy was offered in evidence; and the exceptions do not show what the value of the bicycles supposed to have been stolen was, nor whether any evidence was introduced showing their value. The defendant's evidence further tended to show that the boy was advised that he was not obliged to answer any question, but could do so if he wished, and that the boy did answer all questions propounded. There was no evidence tending to show that the boy was caught in the act of stealing bicycles or of any other violation of the law, nor was there any evidence tending to show that the officer arresting him had a warrant for his arrest. Defendant's evidence tended to show that Morris Meany did not object to answering the questions, and that he answered them of his own free will. In rebuttal the plaintiff offered to show by the boy that when he was arrested he was frightened, in fear of the officers, and supposed he must answer every question asked him: that he did not answer the questions voluntarily or because he wished to answer them, but because of his fear of the officers; that the reason he did not answer his father and the plaintiff when they questioned him was because of his fear of the officers, and that all the answers made by him on that occasion were made involuntarily, and because of his fear of the officers and his belief that he was obliged to answer. This offer was excluded, and exception saved.

The court charged the jury in part as follows: "(1) It was the right of the defendant as a police officer with his assistant officers to question the Meany boy concerning the whereabouts of the bicycles supposed to have been stolen, and to question him as to his guilt or innocence in the premises, and it was the right of the Meany boy to answer such questions if he chose, and the defendant would incur no liability in such case. It was the duty of the defendant in the position which he occupied, and his assistant officers, to question and examine the Meany boy in relation to the larceny of the bicycles and as to where the bicycles were. It was a proper matter for their consideration, for their examination, their inquiry, to ascertain whether crimes had been committed...