184 A.D. 399 | N.Y. App. Div. | 1918
The complaint alleges, and the evidence would permit a jury to find, that the defendant, a police officer of the village of Walton, struck the plaintiff upon the head with a police club and forcibly took him to the village lockup, where the plaintiff was kept about twenty-four hours, and finally released without the semblance of an arraignment or trial, and that the plaintiff was made sore and sick, and was obliged to remain in bed for a period of one week, and was confined to the house for two weeks. The action is, of course, for false imprisonment, and there is no merit in the suggestion of the defendant that more than one cause of action was stated in the complaint. The action of false imprisonment always involves the element of an assault in a technical sense, and if this technical
The jury has found the facts in favor of the plaintiff, and awarded damages in the sum of $300, and from the judgment entered upon this verdict the defendant appeals to this court, urging various alleged errors. We have already indicated that there is no merit in the suggestion that this assault was not a part of the cause of action for false imprisonment, and we are equally persuaded that the court did not err in refusing a nonsuit at the close of plaintiff’s evidence, when it appeared that the defendant was a police officer, and that he claimed to be acting in his official capacity, and that the plaintiff received his injuries while resisting arrest. While it is undoubtedly the better practice on the part of the citizen to submit to an attempted arrest, under a pretended authority, and to depend upon the law for a vindication of his rights, he is not bound to do so where the person attempting the arrest is not legally authorized to make it, and the person acting without authority does so at his peril. The fact that a man is a police officer does not make all of his acts official acts; he is still governed by law, and he has no authority to make an arrest for a misdemeanor without a warrant, unless the crime is committed in his presence. In this case the justification attempted to be made was that the plaintiff was drunk in a public place, but the evidence failed to convince the jury that the plaintiff was drunk. Moreover the arrest was not made in a public place, and it is doubtful if the fact that the plaintiff may have been seen drunk in a public place prior to the arrest justified the officer in following the plaintiff to private premises and there assaulting and arresting him, as the undisputed evidence shows was done. However this may be, the evidence fairly justified the jury in reaching the conclusion that the plaintiff was not drunk at the time of the assault, and this being so there was no possible justification for the assault.
But it is suggested that there was no proof whatever of
If this were a case of malicious prosecution the authorities cited by the defendant in support of his third point would be of some importance. But there is no suggestion of malicious prosecution; the action is for false imprisonment, in which the burden of justifying the act is upon the defendant. In this case there was no element of a prosecution; the plaintiff was beaten and thrown into prison, and compelled to remain there for twenty-four hours, when he was released without any form of trial, and the action is to recover damages for these acts of false imprisonment.
The suggestion of error in the court sustaining an objection to the defendant’s question, “ That [profanity] is quite an ordinary manifestation of intoxication; a man that is given to profanity is very apt to use it when he is intoxicated?” will not be seriously considered in this court.
Objection is made to the charge of the court that “ the
The judgment and order appealed from should be affirmed, with costs.
Judgment and order unanimously affirmed, with costs.