Waddle v. Wilson

• Decision Date: 21 April 1915
• Citation: 164 Ky. 228,175 S.W. 382
• Parties: WADDLE ET AL. v. WILSON.
• Court: Kentucky Court of Appeals

175 S.W. 382

164 Ky. 228

WADDLE ET AL. v. WILSON.

Court of Appeals of Kentucky.

April 21, 1915

Appeal from Circuit Court, Pulaski County.

Action by J. C. Wilson against J. S. Waddle and the National Surety Company. Judgment for plaintiff, and defendants appeal. Reversed and remanded, with directions to overrule defendants' demurrers and to grant a new trial.

W. B Morrow and Morrow & Morrow, all of Somerset, for appellants.

J. W Colyar and Wm. Catron, both of Somerset, for appellee.

SETTLE J.

In this action the appellee, J. C. Wilson, recovered a verdict and judgment for $927 against the appellants, J. S. Waddle, a policeman of the city of Somerset, and the National Surety Company, his surety, as damages for the alleged unlawful arrest of the appellee by Waddle, and from that judgment Waddle and his surety have appealed.

The arrest was made at 8 o'clock at night, during the Pulaski county fair, and after the appellant Waddle had received information that the appellee, Wilson, had cut and seriously wounded one Ernest Barnett with a knife, which charge, if true, constituted a felony. Following his arrest, appellee was confined in jail until the next morning about 9 o'clock. In point of fact he was not guilty of the cutting and wounding of Barnett.

The appellants filed a joint and separate answer to the petition in which they admitted the arrest, and alleged that at the time it was made Waddle believed and had probable cause to believe that appellee had committed a felony, and also that he was drunk and disorderly when arrested. It was also alleged in the answer that on the morning following the arrest of appellee he was brought before the police court of the city of Somerset under a charge of being drunk and disorderly at the time of his arrest, which charge he confessed and in open court entered a plea of guilty, and these facts were pleaded in justification of the arrest.

The averments of the answer were substantially traversed by the appellee's reply. Later, and at the same term of the court, the appellant National Surety Company filed a second and separate answer, in which it was, in substance, alleged that the bond upon which it was bound as the surety for the appellant J. S. Waddle, as policeman, was for the sum of $1,000, and by its terms limited its liability as surety to that amount; that in an action previously brought against Waddle and it on the bond, by a person other than the appellee, J. C. Wilson, there was a recovery against it, as the surety of Waddle, of $550 in damages, which it paid; and that this recovery and payment reduced its liability on the bond to $450. It was also alleged that, in the event of a recovery of damages by the appellee, Wilson, for his alleged unlawful arrest by the appellant Waddle, complained of, it, as the latter's surety, would be liable for only so much of such recovery as would not exceed $450. To this separate answer of the appellant National Surety Company appellee filed a demurrer, which the circuit court sustained, to which ruling the National Surety Company excepted.

At a subsequent term of the court, and before the case was reached for trial, the appellants filed an amended answer, in which they jointly and severally averred that on the morning following the arrest of the appellee, Wilson, he was tried in the police court of Somerset for the offense of drunkenness and disorderly conduct, for which he was arrested by the appellant Waddle, and by its judgment found guilty, and his punishment fixed at a fine of $5 and the costs of the prosecution, amounting to $2.90. This judgment, it was alleged, constituted a bar to the recovery of damages sought by appellee. Appellee filed a demurrer to the amended answer of the appellants, and this demurrer the court also sustained, to which ruling appellants excepted.

The first ground urged by appellants for a reversal of the judgment of the circuit court is that that court erred in sustaining the demurrer to their amended answer. This contention is manifestly sound. If, as alleged in the amended answer, appellee was drunk or disorderly at the time of his arrest, and this was seen by and known to the appellant Waddle at the time, it constituted an offense for which he had the same right to make the arrest without a warrant that he would have had to make an arrest for a felony without a warrant, if appellee had been guilty of a felony; and the averment was made in the amended answer that the arrest was effected because of appellee's being drunk and disorderly in the presence of the appellant Waddle, as well as on account of the felony of cutting and wounding Barnett, of which the latter had been informed, and had reasonable ground to believe him guilty; and though it subsequently developed that appellee was not guilty of the felony, if, as also alleged in the amended answer, he was tried and convicted in the police court of drunkenness or disorderly conduct, the judgment of conviction would have afforded conclusive evidence of his guilt of the latter offense, justified the arrest, and constituted a bar to the recovery of damages sought therefor. In Louisville Ry. Co. v. Hutti, 141 Ky. 511, 133 S.W. 200, we held:

"That a judgment convicting a person of disorderly conduct afforded conclusive evidence of the misconduct for which the arrest was made, and the consequent justifiable acts of the officer and the prosecuting witness in causing the arrest."

The soundness of this doctrine was declared in Holtman v. Bullock, 142 Ky. 335, 134 S.W. 480, and Duerr v. K. & I. Bridge Co., 132 Ky. 228, 116 S.W. 325, and is also approved in 19 Cyc. 353, and numerous authorities cited in the footnotes in support thereof.

In Griffin v. Russell, 161 Ky. 471, 170 S.W. 1192, which was an action for false arrest brought against a policeman and the surety in his bond, the appellants at the close of the testimony tendered an amended answer to conform to the proof, in which they withdrew the denial of their original answer that the appellee had been arrested, and justified the arrest upon the ground that he had used abusive language, for which he was subsequently convicted. The circuit court refused to permit the amendment to be filed, and excluded the police court record and all evidence as to the appellee's trial and conviction for the use of the abusive language. This was done upon the ground that the original answer denied the arrest. On the appeal, however, we held that the variance between the original and the amended answer was not material; that the amendment merely conformed to the proof and did not mislead the appellee; and, further, that in refusing to let it be filed the trial court was in error, as appellee's conviction in the police court for the offense for which he was arrested justified the arrest complained of. The opinion approves the doctrine announced in Louisville Ry. Co. v. Hutti, supra, that the judgment of a court of competent jurisdiction, convicting the person complaining of the arrest of the offense for which he was arrested, constitutes in law a justification for the arrest, in that it conclusively establishes the fact that the officer, in making the arrest, was acting upon probable cause.

It is, however, insisted for appellee that appellants were not prejudiced by the ruling of the court in sustaining the demurrer to the amended answer, because notwithstanding this ruling, the court during the trial gave appellants leave to introduce the judgment of the police court showing the trial and conviction of appellee of the offense of drunkenness and disorderly conduct, but that appellants refused to introduce the judgment as evidence. It conclusively appears from the record that the permission thus given the appellants by the court to introduce the judgment was not granted until all the witnesses had testified and the evidence of each party had been closed. The record fails to show that the trial court, in thus granting appellants leave to introduce the judgment of the police court, advised them what effect it would give to the judgment if introduced, or that it would instruct the jury that the judgment should be accepted by them as conclusive of the lawfulness of appellee's arrest; and in the absence of some such statement from the court appellants had no right to assume that the mind of the court had undergone a change after sustaining the demurrer to the amended answer, as it then expressed the opinion that the judgment of the police court, showing the appellee's trial and conviction of the offense for which he was arrested, did not establish the lawfulness of the arrest.

In addition, if appellants, after the tardy offer of the court had attempted to introduce the judgment, in view of the previous ruling of the court on the demurrer, it would have given appellee ground to claim surprise and demand a continuance, that he might obtain additional proof to meet the new issue, which might have postponed the trial to another term and increased the cost to the litigants. If, after sustaining the demurrer to the amended answer, the court had experienced a change of opinion, it should have so stated, set aside the order sustaining the demurrer, and in lieu thereof entered another overruling it; but, in proceeding as it did, appellants could but believe that the court was adhering to the opinion expressed at the time of sustaining the demurrer, and therefore that they would derive no benefit from the introduction of the judgment in evidence. Hence they are not to be blamed for not taking advantage of the permission given them by the court to do so, nor did the permission to introduce the judgment, given under such circumstances, condone the previous error of the court in sustaining the demurrer to the amended answer, or the...