Walsh v. Oehlert

• Decision Date: 26 March 1974
• Docket Number: No. 35278,35278
• Citation: 508 S.W.2d 222
• Parties: Joseph W. WALSH and Dolores Walsh, Respondents-Plaintiffs, v. Rudolph OEHLERT et al., Appellants-Defendants. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 222

508 S.W.2d 222

Joseph W. WALSH and Dolores Walsh, Respondents-Plaintiffs, v.Rudolph OEHLERT et al., Appellants-Defendants.

No. 35278.

Missouri Court of Appeals, St. Louis District, Division Two.

March 26, 1974.

Jack Koehr, City Counselor, James J. Gallagher, Associate City Counselor, St. Louis, for defendants-appellants.

Charles R. Oldham, St. Louis, for plaintiffs-respondents.

McMILLIAN, Judge.

This is an appeal by defendantRudolph Oehlert, a St. Louis Police Officer, from a judgment of the Circuit Court of the City of St. Louis, in the amount of.$1000.00 awarded by a jury to plaintiffs, in an action for the wrongful death (shooting) of their son, Timothy, Walsh, a sixteen year old juvenile.

Originally, plaintiffs sued eight Metropolitan Police Officers; but the cause was submitted to the jury only against defendant and Officer Phillip Gaffney.Plaintiffs submitted their case against Officer Gaffney on the theory that he used unreasonable force against their son, but the jury found against plaintiffs on this issue and in favor of defendant Gaffney.

After the court overruled defendant Oehlert's motion for a directed verdict at the close of all the evidence, plaintiffs submitted their case against him on the theory that he failed to inform defendant Gaffney that Timothy Walsh was a juvenile and that he was only a suspect for an alleged shooting, or to exercise reasonable care to prevent Officer Gaffney from shooting at Timothy Walsh.

Inasmuch as the facts are not in dispute, we give only a brief resume as to the occurrence.Timothy Walsh, on the morning of October 13, 1966, was arrested at his place of work by three officers, one of whom was Officer Oehlert.Oehlert brought Walsh to the ninth district station booking desk where Oehlert decided to search Walsh's shoes.While Walsh was tying on his second shoe, he bolted across the lobby and dove through the window.Unable to restrain Walsh as he dangled from the window, Oehlert called for help.Officer Gaffney heard the call and responded.

Officers Oehlert and Gaffney pursued Walsh across the street, repeatedly admonishing him to halt.Walsh took no heed, and ran into the gangway between a church and residence, vaulted a fence, and continued running in a westerly direction.When Officers Oehlert and Gaffney reached the fence Officer Gaffney, fired his pistol, aiming at Walsh's legs.However, at the moment the shot was fired, Walsh had reached the fence at the other side of the yard, 45--50 feet away from the pursuing officers, and was jumping down to the adjoining yard.The top of this far fence was approximately 6--10 inches above the level of the ground upon which Officers Oehlert and Gaffney were standing.The bottom of this far fence was the ground of an adjoining lot, approximately 3 1/2 to 4 feet below the level of the ground upon which Officers Oehlert and Gaffney were standing.As Walsh was jumping down, or, evidently immediately after he had made contact with this lower level, the bullet fired by Gaffney struck Walsh in the back, which wound resulted in Walsh's death.

Plaintiffs predicated their theory of liability against defendant Oehlert upon his negligence and wrongful acts which they alleged caused or contributed to cause the death of Timothy Walsh.For support they cite, 47 Am.Jur. 851, Sheriff, Police and Constables, § 42, and cases cited therein, for the general proposition that peace officers are generally held personally liable for negligence or wrongful acts that cause personal injury or death.Moreover, a police officer has no right to negligently injure a person whom he has arrested or detained, and if the arrestee is injured he is liable to the injured party in the same manner as a private individual.See also60 A.L.R.2d 873, 879, wherein, apparently, this rule is followed in Missouri.Although the cases cited therein do not affirmatively espouse the above proposition, some hold an officer's surety liable when that officer exceeds his authority and one case does, indeed hold law officers liable for their negligent acts, Lemonds v. Holmes, 236 S.W.2d 56(Mo.App.1951).Nevertheless, at page 888 of 60 A.L.R.2d, the Missouri case of McKeon v. National Casualty Co., 216 Mo.App. 507, 270 S.W. 707, 712(1925), is cited, which case affirmatively states that, '. . . officers may only arrest felons and those probably suspected of felonies, and kill felons or those justly suspected thereof who flee or resist . . .'

Under the common law and the laws of Missouri, a police officer may use deadly force to apprehend, as a last resort, an accused fleeing felon.4 Black.Comm. 170;1 HaleP.C. 494;§ 544.190, RSMo 1969; V.A.M.S.; and State v. Nolan, 354 Mo. 980, 192 S.W.2d 1016(1946).Section 544.190 RSMo 1969, V.A.M.S., provides as follows:

'If, after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all necessary means to effect the arrest.'(Emphasis added.)

In the Nolan case, our Supreme Court held that a police officer was justified in using deadly force to apprehend a felony suspect based on probable cause, if a felony had actually been committed.A presumption was also upheld that police officers are in the lawful discharge of their duties when making arrests.

In State v. Ford, 344 Mo. 1219, 130 S.W.2d 635(1939), the court, interpreting what is now § 559.040, RSMo 1969, V.A.M.S. stated that a homicide is justified if '. . . (R)esulting from force (shooting, a blow or the like) necessarily exerted in effecting the arrest of an accused felon in flight.'This case involved the use of force by an officer who was attempting to arrest an individual on a misdemeanor charge.Even at that time, in 1939, there was no doubt that an officer could use fatal force in attempting to arrest a fleeing felon, although the court indicated that it would be unlawful to shoot an escaping misdemeanant whom the officer was attempting to arrest.

From these earlier interpretations the statutes of the State of Missouri in criminal cases and law has evolved the rule in civil cases that an officer may use only such force as is reasonably necessary to apprehend an individual in the commission of a crime.In City of Gallatin ex rel. Dixon v. Murphy, 217 S.W.2d 400(Mo.App.1949), the court indicated:

'. . . An officer may use such force as is necessary to effect his purpose, and if the offender resists him he may use such force as is necessary to effectively arrest, even to injuring or killing the offender.However, there is a limitation on the officer's right to kill in making an arrest or in repelling an assault during an arrest.The line of demarkation is that he may not use more force than is reasonably necessary to accomplish the arrest.The officer is not arbitrarily the judge that it was necessary for him to kill in order to secure his prisoner.The exigencies of the situation must have been such that there was a necessity for the killing, and whether such necessity existed, as a matter of fact, is a question for the jury.State v. Havens, Mo., . . . 177 S.W.2d 625, loc.cit. 628.'

This rule has consistently been followed up to the present time and is generally followed throughout the United States.See alsoManson v. Wabash Railroad Company, 338 S.W.2d 54(Mo.banc 1960), where the court, in discussing whether there was an actual assault by a watchman, stated:

'. . . A police officer, in this case a watchman, may use such means or force as is reasonably necessary in the circumstance to accomplish an arrest. . . .Unless a plaintiff can show that unnecessary force was used, courts will protect the officer.6 C.J.S.Assault and Battery§ 23(1), pp. 825, 826;Hutchinson v. Lott, Fla.App., 110 So.2d 442, loc.cit. 444(1, 2) . . .'

From these authorities, we hold that an officer, where he has probable cause to make an arrest for felony may use a reasonable amount of force in the discharge of his duties to prevent the arrestee from escaping.

It is not contended that Officer Oehlert did not have probable cause to arrest Timothy Walsh as a suspect for the alleged shooting of a person at a used car lot at Spring and...