#### Gosczinski, Respondent, vs. Carlson, Appellant.

*May 22*—

June *17, 1914.*

*Sheriffs: Shooting to prevent escape of prisoner: When justified: Assault: Liability: Damages: Inadequacy.*

1. Neither at common law nor under sec. 4366, Stats., is an officer justified in shooting at a person who, having been arrested on a civil warrant, is attempting to escape from his custody.

2. Where an officer, under those circumstances, discharged his revolver in such a direction that the person attempting to escape was hit, he did so at his peril and, even though he did not intend to shoot such person, his act constituted an assault and' rendered him liable for the injuries resulting from the shot.

3. A verdict awarding ?70 as damages for an assault by shooting was properly set aside in this case on the ground that the amount awarded was inadequate.

Appeal from an order of the circuit court for Douglas eounty: Ebaitk A. Ross, Circuit Judge.

*Affirmed.*

This is an action by the plaintiff to recover damages for an alleged unlawful and wilful assault by the defendant upon the plaintiff without excuse or justificátion. The plaintiff claims that he was seriously injured by a shot in his back from a revolver discharged by the defendant, to his' damage in the sum of $2,500. The defendant answered alleging that at the time of the alleged assault and shooting he was the undersheriff of Douglas county, and that on August 29, 1911, a summons, complaint, affidavit, undertaking, and order of arrest in a civil action wherein the plaintiff was defendant were delivered to the sheriff of Douglas county and that he was directed by the sheriff to execute the process and arrest the plaintiff. It is further alleged that the defendant on August 30, 1911, arrested the plaintiff and took him into custody by virtue of such warrant and undertook to convey him to the county jail; that the plaintiff wrongfully resisted the defendant in the execution of such court process and by *552physical violence attempted to escape from tbe defendant’s custody; that tbe defendant endeavored to prevent tbe plaintiff from escaping and make bim submit to tbe defendant’s authority and custody by discharging bis revolver without any intent to shoot or injure bim; that be with due care discharged tbe revolver in a direction calculated not to bit, wound, or injure tbe plaintiff, but only to frighten bim into submission and prevent bis escape.

It appeared at tbe trial that after tbe defendant bad arrested tbe plaintiff under tbe process in bis bands and while he was conveying bim to tbe county jail, when informed that be would have to remain in jail for several months unless be gave a bond in tbe sum of $600 for bis release, tbe plaintiff started to run and attempted to escape from tbe defendant’s custody, and that tbe defendant discharged bis revolver twice with tbe intent to frighten tbe plaintiff into submission and to regain custody of bim; that tbe second shot bit the plaintiff, penetrating bis shoulder, and passed into vital parts of bis body; that tbe plaintiff thereafter traveled a short distance, when be was retaken into tbe defendant’s custody, who procured a doctor and took tbe plaintiff in a conveyance to a hospital, where be received treatment and hospital care for about three and one-balf months. Tbe jfiaintiff also testified that be was unable to perform any labor until May, 1912, when be did dishwashing in a hotel and other light work for a period of about four months, when be engaged in labor at ore docks and driving teams up to tbe time of trial. Tbe court held as a matter of law that tbe defendant did not intend to shoot and injure tbe plaintiff at tbe time he discharged bis revolver; that be was liable to tbe plaintiff for compensatory damages, and submitted tbe assessment of the amount of damages to tbe jury, and tbe jury returned a verdict awarding tbe plaintiff $70 damages.

Tbe plaintiff moved to set aside tbe verdict upon tbe grounds that tbe verdict was perverse and that tbe damages' *553awarded were inadequate. Tbe court ordered tbe verdict to be set aside upon the ground that tbe damages awarded were inadequate, and granted a new trial upon tbe condition that tbe defendant Have an option to eleet, within thirty days thereafter, to allow judgment to be entered against him for tbe sum of $250 and costs, and in case tbe defendant so elected tbe motion for a new trial was to stand denied. This is an appeal from such order.

Eor tbe appellant there was a brief by *W. P. Grawford,*and oral argument by *II. G. Pichering.*

Eor tbe respondent there was a brief by *Grace, Hudnall & Fridley,*and oral argument by *George B. Hudnall.*

Siebeckeb, J.

The defendant contends that the court erred in granting tbe plaintiffs motion for a new trial for inadequacy of the damages awarded tbe plaintiff by tbe jury. Tbe argument is made by tbe defendant that tbe award of $70 damages is satisfactory to tbe defendant and should not be disturbed, because under the evidence as shown by the record on this appeal the plaintiff was not legally entitled to recover any damages, and hence tbe verdict awarding the plaintiff $70 damages should not be disturbed on tbe plaintiff’s request and against the defendant’s protest. Assuming the verdict as one in defendant’s favor, did tbe court err in ordering a new trial? Tbe claim is made that since the court held as a matter of law that defendant, in discharging his revolver under tbe circumstances shown by the evidence, entertained no purpose to shoot tbe plaintiff or indict on him any personal injury, there is no liability for tbe accidental injury resulting to tbe plaintiff from tbe shooting. This claim is based on the ground that the defendant was just!lied in doing what he did in the execution of the legal process in bis hands and in retaking tbe plaintiff into bis custody after be escaped from tbe defendant while conducting him to tbe county jail pursuant to the warrant of arrest under which *554be was acting. Defendant’s counsel relies on tbe provisions of sec. 4366, Stats. From tbe context of tbe provisions of tbis statute it is manifest that they are intended to apply only to justifiable homicides when necessarily committed by public officers in obedience to any judgment of a competent court, in cases of actual resistance to tbe execution of legal process, or discharge of any other legal duty, or tbe retaking of felons or arresting them when fleeing from justice. Tbe statute must be interpreted in tbe light of its contents and tbe acts to which it was clearly intended to apply. It is apparent that a public officer cannot justify tbe use of means dangerous to human life unless the law imposed it as a *necessity*in tbe execution of legal process. Tbe statute is declaratory of what bad been established as a rule at common law as to justifiable conduct of public officers in tbe execution of legal process. Under tbe rules of the common law officers were not justified in shooting persons attempting to escape from their custody in case of arrests for a misdemeanor or under civil warrants, for tbe purpose of compelling submission to their authority and retaking them into custody. In *U. S. v. Clark,*31 Fed. 710, Mr. Justice BeowN declared tbe common-law rule on tbe subject in tbe following language:

> “The general rule is well settled, by elementary writers upon criminal law, that an officer having custody of a person charged with felony may take bis life, if it becomes absolutely necessary to do so to prevent bis escape; but be may not do tbis if be be charged simply with a misdemeanor; tbe theory of tbe law being that it is better that a misdemeanant escape than that human life be taken.”

In tbe case of *Thomas v. Kinkead,*55 Ark. 502, 18 S. W. 854, tbe court entered upon an elaborate discussion and extensive examination of tbe subject in an action wherein tbe defendant was sued for damages for an unjustifiable shooting and killing of a person charged with tbe commission of a misdemeanor to prevent bis resistance to and escape from arrest. *555After a thorough review of the adjudications and the text-writers the court states the rule of the ■ common law to be:

> “In making the arrest or preventing the escape the officer may exert such physical force as is necessary on the one hand to effect the arrest by overcoming the resistance he encounters, or on the other to subdue the efforts of the prisoner to escape j but he cannot in either case take the life of the accused, or even inflict upon him a great bodily harm, except to save his own life or to prevent a like harm to himself.”

The same rule was applied in *State v. Sigman,*106 N. C. 728, 11 S. E. 520, where the officer was- held criminally liable for an assault with a deadly weapon, for discharging a pistol at a person arrested for' a misdemeanor who had escaped-and was fleeing to avoid being retaken. The general rule is that shooting at a person in an endeavor to arrest or retake a person who has escaped from arrest for a misdemeanor is excessive force constituting an assault. The following cases and the cases therein cited support this rule: *Brown v. Weaver,*76 Miss. 7, 23 South. 388, 42 L. R. A. 423; *Reneau v. State,*2 Lea, 720; *Clements v. State,*50 Ala. 117; *Sossamon v. Cruse,*133 N. C. 470, 45 S. E. 757.

Reason and authority make this rule applicable in cases of the execution of civil warrants for the arrest of persons. We are of the opinion that sec. 4366, Stats., does not abrogate this common-law rule on the subject here under consideration. We conclude that the trial court properly held that when the defendant discharged his revolver in a direction so as to hit the plaintiff he did so at his peril; that, under the circumstances it was not justifiable and constituted an assault, and hence he is liable in damages to the plaintiff for the injnries resulting from the shot. Under this view it was proper for the trial court to award a new trial on the ground that the amount awarded is inadequate. The record is silent as to the defendant’s election to permit judgment to be entered against him for the amount fixed by the court and no question *556is raised respecting the action of the trial court in tbis respect. The record presents no other material question that need be considered on this appeal from the order granting a new trial in the action.

*By the Court.*— The order appealed from is affirmed, and the cause remanded for further proceedings according to.law.