
    Letow v. United States Fidelity & Guaranty Co.
    [83 South. 81,
    In Banc,
    No. 20769.]
    1. Appeal and Erbob; Review of verdict. Conflicting evidence.
    
    Where ' on the trial of a suit on the bond of a policeman for assaulting plaintiff while arresting him, there was a sharp conflict in the evidence and the jury found for the defendant, the supreme court on apeal will not disturb the verdict of the jury if the facts show a justifiable arrest, and that no unnecessary force was used in making the arrest.
    • 2. Abrest. Arrest without warrant. Violation of city ordinance.
    
    Under section 1447, Code 1906 (Hemingway’s Code, section 1204), providing for an officer or private citizen to make arrest without warrant for “indictable” offenses comitted, etc., the word “indictable” in this section means such offenses as a grand jury may indict for and does not include municipal ordinances.
    3. Municipal Corporations. Liability on policeman's• bond. Assault -while mahing arrest.
    
    Where in a suit on a policeman’s bond for assault while making an arrest, the defendant set- up in justification of the assault the lawfulness of the arrest but failed to establish this defense, the plaintiff ’in such case was entitled to a peremptory instruction.
    
      Appeal from the circuit court of Forest county.
    IIoN. R. S. Hall, Judge.
    Suit by M. Letow against T- F. Moore and the United States Fidelity & Guaranty Company. Plaintiff took a nonsuit as to Moore. From a judgment for defendant, plaintiff appeals. '
    The facts are fully stated in the opinion of the court.
    No brief'of counsel on either side found in the record.
    
      Tally & Mayson, for áppellant.
    
      Stevens & Gooh, for appellee.
   EtRRidge, J.,

delivered the opinion of the court.

The appellant brought suit against T. P. Moore and the United States Fidelity & Guaranty Company, surety upon the official bond of Moore, who was a policeman in the city of Hattiesburg, alleging that Moore was a policeman and the said surety company became surety on his official bond in the penalty of five hundred dollars, conditioned for the faithful performance of the duties of said policeman, and that T. P. Moore, while claiming to perform the duties of the office, entered the plaintiff’s place of business under claim of performance of official duties, and made a violent assault upon plaintiff, to his damage in the sum of five hundred dollars, and prayed for judgment for said amount.

Defendant filed the general issue, and also notice under the general issue that plaintiff at the time of the injuries complained of was engaged in the commission of the violation of the law in the presence of the defendant, T. P. Moore, who was then and there an officer of the law charged with the duties of enforcing the law, and that Moore undertook, to arrest the plaintiff in proper and legal manner, and that plaintiff resisted said arrest, and then and there committed an assault upon the defendant, Moore, when and while he was attempting to make said arrest, and that the force and means employed by Moore were necessary in order to make said arrest and to protect the defendant from the assault and battery being committed by the plaintiff, and that defendant only Employed such force as was necessary to effect said arrest and to protect himself, and in law that whatever injury plaintiff sustained was sustained in resisting lawful arrest.

The plaintiff took a nonsuit as to the defendant, Moore, and the case proceeded to trial as to the surety company, the United States Fidelity & Guaranty Company. ■

The appellant was engaged in a restaurant and cold-drink business in the city of Hattiesburg, and had a little board -.containing the menu and prices of food served, which board was placed upon the sidewalk in front of appellants place of business. The policeman notified the appellant to remove the said board from the sidewalk. The policeman passing subsequent to this demanded to know why the board had not been removed, when the appellant claimed that he did not have to move it. Thereupon the policeman went to the chief of police, who told the policeman to return and give the appellant twenty minutes in which to remove the board', and, if not removed, to arrest him and bring him before the proper officer. The policeman thereupon returned to appellant’s place of business, and notified him to remove said board within twenty minutes or he would arrest him, and then went away and returned after twenty minutes, and, the board not having been removed, he went into the place of business of the appellant, who was behind the counter in the restaurant, and made an effort to take hold of him, and appellant pushed his hand away, whereupon the policeman struck the appllant with his billy. Whereupon the appellant submitted and went with the policeman to the city hall, and afterward brought this suit.

The foregoing is the substance of the evidence from the appellee’s standpoint. The appellant claims that the policeman came in his place of business in an angry manner and struck him when he was doing nothing to the policeman, and while he was stooping over, attending to some want of a customer; that the policeman did not say anything before he grabbed him and struck him; that he w’as not trying to do anything to the policeman when he was struck or prior5 thereto; that the policeman treated him roughly, going along the street after arrest; that his jaw was swollen for - eight days; that it hurt badly, and that it made him sick. He also said that the policeman had tried to make him quit operating a player piano,, and that other restaurant men near him had similar billboards on the sidewalks, and were not interfered with. The plaintiff was corroborated by several employees working in the restaurant as to the assault and as to what occurred at the time of the alleged' arrest. These witnesses say that when the policeman came in that plaintiff was stooping over behind the counter waiting on customers, and that the policeman grabbed him by the shoulder and began to strike, and,that Letow tried to ward off the blows, but that he was struck on the face, and it was bruised; that Moore seemed to be angry.

As there was a sharp conflict between Moore and the three witnesses for the plaintiff, and the jury found for the defendant, we would not disturb the jury verdict if the facts showed a justifiable arrest, and that no unnecessary force was used in ma-king the arrest.

The policeman failed to make affidavit and obtain a warrant for the arrest of the appellant, but claims justification for making the arrest under section 1447, Code of 1906 (section 1204, Hemingway’s Code), which reads as follows:

“1447. Arrests: When Made without Warrant, etc.— An officer or private person may arrest any person without warrant, for an indictable offense committed, or a breach of the peace threatened or attempted in his presence ; or when a person has committed a' felony, though not in his presence; or when a felony has been committed, and he has reasonable ground to suspect and believe the person proposed to be arrested to have committed it; or on a charge, made- upon reasonable cause, of the commission of a felony by the party proposed to be arrested. And in all cases of arrests without warrant, the person making such arrest must inform the accused of the object and cause of the arrest, except when he is in the actual commission of the~offense, or is arrested on pursuit.”

There was an ordinance of the city of Hattiesburg introduced by the defendant which reads as follows:

“An ordinance to require owners or tenants, lessees and agents in possession of real estate, vacant lots, business houses, residences and all other builings abutting on sidewalks, to keep the sidewalks in reasonably safe condition for travel on foot, and to keep the same free from all obstructions and to provide a penalty for failure to do so.
“Be it ordained by the mayor and board of commissioners of the city of Hattiesburg, Mississippi,
“Section 1. That owners of real estate, vacant lots, business houses, residences, and all other buildings, or tenants, lessees and agents in possession and control of same, abutting on sidewalks, shall keep such sidewalks in a reasonably safe condition for travel on foot at all times -and free from all obstructions which will in any way impede or interfere with the free and safe use of sidewalks by the public traveling on foot. No broken or unsafe plank, or crack wider than one-half inch in plank sidewalks, and no holes, stumps, roots or open ditches, and unsafe bridges on any sidewalk shall he permitted.
“Sec. 2. If any person whose dnty it is to comply with section 1 of this ordinance shall fail to do so after he has been notified by any officer of the city in writing for three full days so' to do, he shall upon conviction be fined not less than one dollar, nor more than one hundred dollars.
“Sec. 3. The public interest requiring it, this ordinance shall take effect and be in force from and after its passage and approval.
“Adopted and approved this March 6, 1913.”

There was also an ordinance introduced making a mis-' demeanor under the' state law offenses against the municipality when committed within the corporate limits under section 3410, Code of 1906 (section 5940, Hemingway’s Code).

It will be noted from a reading of the ordinance above set out that, it is made a misdemeanor against the city if one fail to remove obstructions on the sidewalks and fail to comply with section 1 of the ordinance after he has been notified by any officer of the city in writing for three full days so to do.

No ordinance was introduced conferring any authority upon the policeman to arrest without warrant for violation of municipal ordinances, and the defendant relies upon, section 1447, Code of 1906 (section! 1204, Hemingway’s Code), for his right to make such arrest without warrant. This section provides for an officer or private person to 'make arrest without warrant for indictable offenses committed, or for a breach of peaqe threatened or.attempted in his. presence. The word' “indictable” in this section means such offenses as a grand jury may indict for, and does not include municipal ordinances. In 5 C. J., p. 409, section 35, it is stated:

“Violations of Municipal Ordinances. Municipal peace officers are sometimes authorized either by general statute, municipal charter, or the terms of a particular ordinance, to arrest without warrants persons whom they find violating municipal ordinances; hut at common law no such authority is vested in peace officers, municipal or otherwise. Whether particular offenses justify arrest without warrant depends upon the terms of the statute or ordinance applicable to them.”

So there was no authority to make the arrest without a warrant even if there was a violation of the municipal ordinance above set out. The question of guilt of Letow is not material here for the reason‘that the officer did not have a right to make the arrest without warrant. The defense having set up in justification of the assault the lawfulness of the arrest must, of course, establish the lawfulness of the arrest, and, having failed to so establish his defense, the plaintiff was entitled to a peremptory instruction as to liability requested by him and refused by the court.

The judgment of the court will therefore be reversed, and the cause remanded for a new trial.

Reversed and remanded.  