172 Ky. 325 | Ky. Ct. App. | 1916
Opinion of the Court by
Reversing.
Rnssell Bennington, an infant, suing Tby J. H. Bennington, as next friend, brought this suit against the Illinois Central Railroad Company to recover damages for false arrest and imprisonment. The trial before a jury resulted in a verdict and judgment in his favor for $500.00. The railroad company appeals.
It appears that shortly after the noon hour on March 14th, 1914, the locomotive drawing a fast passenger train was derailed near a station called “Iron Hill,” in Lyon County. Immediately after the train was stopped a passenger found an iron bolt lying on the track between the - rails. The bolt was bent and bore the imprint of the flange of the locomotive wheel, and was flattened on the other side by contact with the top of the rail. Those present further found a mark on the rail. On the Monday following’ plaintiff was arrested on the charge of wrecking the train by Otto Hamilton, defendant’s special agent, and taken to Kuttawa to the office of the town marshal, where he executed bond. On his examining trial before the county judge he was held over to thé grand jury. The grand jury failed to indict. Thereupon this suit was brought. While the trial was in progress the grand jury brought in an indictment against plaintiff. Owing to the illness of one of the jurors, there was a mistrial. Subsequently the indictment was dismissed.
It further appears that plaintiff lived with his father, J. H. Bennington. In addition to1 plaintiff, the latter’s family consisted of his wife, a grown daughter and a son two years younger than plaintiff. Their home was located at Iron Hill, near the defendant’s track. A few yards from the track was a plant bed, which plaintiff and his younger brother were engaged in burning. Otto Hamilton, the road’s special agent, was notified of the wreck, and in a short time came upon the scene. After
“Q. What did Mr. Hamilton say when he came up? A. Mr. Hamilton said ‘Good morning,’ and I said ‘Good morning,’ and he said, ‘Now, son, I come down here to get the straight tale of that,’ and I said, ‘You got that Saturday evening,’ and he said, ‘No; you told me a pack of lies Saturday evening, and the best thing for you to do is to come on and say you done this, and that will be the last of it,’ and I said, ‘No; I don’t know nothing about it,’ and he said ‘I am satisfied you are the one that put something on the track,’ and I said, ‘No; I never,’ and we kept on arguing a while, him arguing that I did and me arguing that I never, and he said, ‘Now, son, if you will say you did put something on the track I will get you a job in Paducah at $30 or $35 a month (I forget which), and pay your way to Paducah, and get you a new suit of clothes, if you will say you' put something on the track,’ and I told him no, I wouldn’t do it, and he stayed there it seemed to me like about a-couple of hours; I don’t know how long it was, but 102 run, though, just after we got to town. I told him to go on away, I didn’t know nothing about it, I wanted to-go to work, and he said, ‘If you will say you put something on the track I will go on away. ’ Mr. Pendergrass was standing off a little piece from me, and I said, ‘Mr. Pendergrass you heard that?’ and he said, ‘Yes,’ and I said then, ‘Yes, I did,’ and he said ‘Tell me the reason why,’ and I didn’t know what to say,*329 and he said, ‘If yonr little brother was the canse of it tell how he was the canse of it,’ and I said, ‘I first'put something on the track and kicked it off, and he said I wasn’t game, and I went and pnt it on,’ and I told the detective that and he said, ‘Well, let’s go to town,’ and I said, ‘Well, yon didn’t do what yon said yon would. Yon ain’t the kind of man I thought yon was. I thought yon was a man of yonr word,’ and he said, ‘Don’t go to saying I ain’t a man of my word,’ and I said, ‘Yon ain’t. Yon didn’t do what yon said yon would,’ and he said, ‘If yon had come on and said it right without me having to twist it out of yon with this stick I wouldn’t have bothered yon,’ and he took me on to town. Q. Did he take hold of yon? A. No, sir. Q. How did he take yon to town? A. In Mr. Pendergrass’ wagon. Q. Anything said between yon and him about wanting to go on with yonr work? A. Yes, sir. Q. What was it? A. I told him I wanted to go on with my work. Q. What did he say to that? A. He said if I would.tell him I pnt something on the track I could go on to work and there would be nothing else to it. Q. That was what yon told him? A. Yes, sir. Q. What was said then, if anything? A. He called Mr. Hammond. Q. What did he say to Mr. Hammond? A. He says, ‘This boy says he done it. Let’s go to town.’ Q. What did yon say then? A. I don’t remember. Q. Did Mr. Pendergrass go to yon? A. Yes, sir. Q. What occurred there after Mr. Pendergrass came down? Did yon say anything to them about what you had told him? If, so, what was it? A. I told Mr. Pendergrass that Mr. Hamilton,said if I would tell him that I did do that he would go away and let me alone, and now— Q. Mr. Pendergrass heard yon say it? A. Yes, sir; he heard me say that. Q. Did yon deny that yon had! said that? A. No, sir; he listened to me tell it.”
' On cross-examination plaintiff repeated substantially the above statements. Plaintiff further testified that when Mrs. Pendergrass came down to inquire about the trouble Hamilton told her that plaintiff had pnt something on the rail. Mr. Pendergrass, a witness for plaintiff, after stating that someone called him to hear what Russell said, made the following statement of what took place:
“Q. What was said then? A. Well, sir, Mr. Hamilton got the boy to relate what he had promised, that he had pnt a little piece of iron on the road, a little piece of iron,*330 marked on Ms hand, but I don’t exactly recollect what was said about it, but anyhow, something was said about taking Mm to town, and Russell commenced crying and said, ‘You have told me a lie. You agreed to turn me loose,’ and that gentleman said, ‘Yes, you told it after I took this stick and twisted it out of you, and if you don’t shut up I will take this stick and pestle hell out of you.’ I doh’t remember all that was said about it. Q. To refresh your recollection, isn’t it a fact that Russell called you to hear what Mr. Hamilton said to him, and then told you that if he would say he did it that he would let Mm alone and let him go on to work? A. Maybe something said about it. Q. Then Hamilton called your attention to that? A. Yes, sir.”
Pie further stated on cross-examination that plaintiff told Hamilton that he did put a piece of iron on the track. After this conversation Mr. Pendergrass’ wagon was hitched up and the two boys, together with the officers and Mr. Pendergrass, started towards Kuttawa. On the way someone suggested that they tell the boys’ father of what had taken place. The father was at Oscar Yates’ farm. When the party approached the father came to the road. Plaintiff says that Hamilton then told his father that plaintiff had placed the obstruction on the track and he was going to take plaintiff to town for trial. Plaintiff gave his father his clothes and his father said he guessed he wouldn’t go to' town. Plaintiff did not remember what his father said in response to Hamilton’s remark. Mr. Pendergrass testified that there was something said about the confession and Mr. Dennington said he was not going to help the boys out if they had done anything like that. During tMs conversation plaintiff never said anything. After leaving the Yates farm the party proceeded to Kuttawa. Plaintiff was turned over to W. H." McCollum, the town marshal. Shortly thereafter Hamilton and Hammond left for Princeton. When plaintiff was turned over to McCollum plaintiff says that Hamilton informed McCollum that he had found out that plaintiff had put sometMng on the track. Thereafter plaintiff had a conversation with McCollum. McCollum told plaintiff that the best thing he could do was to say that he put the bolt on the track but didn’t mean any harm by it. At the same time McCollum said he had put little pieces of iron on the track from town to Andy Richardson’s, but didn’t
According to the evidence of Hamilton, the special agent, he was led to suspect the boys because of their demeanor and the tracks leading from the plant bed. After interviewing the father of the boys the father stated that he didn’t believe the younger boy had anything to do with it, but that he wouldn’t “put it past” the older boy. On the Monday following, plaintiff admitted that he placed the iron bolt on the rail and kicked it off. His brother Albert told him that he wasn’t game and to put it back and leave it there. Pendergrass, who was standing nearby, was called and plaintiff repeated the confession to Pendergrass. Hamilton denied making any.promises or threats to induce the confession. He admits, however, telling the boy that he always tried to help a truthful boy, and if it ever happened that he could get him a job he would be glad to do so. Hammond testified that after Hamilton had called him and Pendergrass he heard plaintiff say that he placed the bolt on the track and kicked it off, and that his brother said “You are a dirty coward if you don’t put the bolt back on there.” Plaintiff then put the bolt on a few minutes before the train was wrecked. Hamilton further says that when the father was informed of plaintiff’s confession he asked plaintiff if it was true, and plaintiff replied in the affirmative. After plaintiff had stated to McCollum that he placed the bolt on the track, McCollum sent for W. T. Gaines, plaintiff’s uncle. Gaines says that when he came to McCollum’s office McCollum said to plaintiff, “Now, Eussell, you state to your Uncle Will just what you have stated to us.” In answer to the question, “What did he say?” witness used the following language: “Well, he said that he and Albert were down there on the railroad, and they heard the train coming, and Eussell put a bolt on the track, I suppose that long, I don’t know; I might have seen the bolt, I don’t know. But anyhow he said they put a bolt on the track and the train come up pretty close and he kicked it off, and Albert said he was a coward if he didn’t pick it up and put it back on, which he did,
A private person may malte an arrest, when he has reasonable grounds for believing that the person arrested has committed a felony. Section 37, Civil Code. A peace officer may malte an arrest in obedience to a warrant of arrest delivered to him, or without a warrant, when a public offense is committed in his presence, or when he has reasonable grounds for believing that the person arrested has committed a felony. Section 36, Civil Code; Wright v. Commonwealth, 85 Ky. 123, 2 S.■ W. 904. Under our statutes, the placing of-an obstruction on a railroad track, whereby any engine or car might be upset, or thrown from the track, is a felony. Kentucky Statutes, section 807. In this case the arrest was made without a warrant, and the question is, did the officer making the arrest have reasonable grounds to believe that plaintiff had committed a felony by placing the bolt on the track? Defendant insists that as the wreck was caused by the bolt on the track and the officers discovered tracks leading from the plant bed where theiboys were at work to the railroad track, and as plaintiff subsequently confessed to the officer that he placed the obstruction on the track and repeated his confession in the presence of others, the trial court should have held, as a matter of law, that the officer had reasonable grounds to believe that plaintiff had committed a felony and should have sustained defendant’s motion for a peremptory. 'While, ordinarily, of course, a confession will furnish probable cause for making an arrest, there may be cases where the arrest is made under such circumstances as to discredit the good faith of the officer making the arrest. It must not be forgotten that we are here dealing- with the case of a boy who lacked a few months of being fourteen-years of age, and for the purposes of a peremptory we must assume that his testimony and that of his -witnesses are true. According to their testimony, the officer spent some time trying to persuade plaintiff to confess. To induce the confession he told him that his younger brother had confessed. On
Considering the case in the light of the fact that plaintiff was a mere boy, and of the fear and anxiety which, not only the presence of the officer but the thought of going to prison, would naturally excite in his mind, and in the light of the intimidation, threats, promises, inducements and subterfuges employed to obtain a confession, we are unable to say, as a matter of' law, that the officer acted in good faith in making the arrest, but conclude that the facts and circumstances are such that honest and intelligent men might reasonably differ as to the conclusion to be drawn from them, and that the question whether or not he had reasonable grounds to be-, lieve that plaintiff had committed a felony was properly submitted to the jury. Pt follows that the trial court did not err in refusing the peremptory asked for by defendant.
The instruction on the measure of damages authorizes a finding of damages for both mental and physical
In view of the above conclusion, it is unnecessary to determine whether plaintiff’s counsel, in his address to the jury, exceeded the bounds of legitimate argument.
Judgment reversed and cause remanded for a new trial consistent with this opinion.