149 So. 2d 500 | Miss. | 1963
Mrs. Betty Stringfellow, for herself and as mother and next friend of Melvin Richard Stringfellow and Phillip Wayne Stringfellow, minors, being the widow and children, respectively, of Melvin Ira Stringfellow, deceased, filed this suit against W. D. Bearry and James H. Smith to recover damages for the wrongful death of their husband and father.
It was charged in the declaration that W. D. Bearry, on May 26, 1961, was Sheriff of George County, Mississippi, and that James H. Smith was his duly appointed deputy, acting as Bearry’s agent and employee within the course and scope of his agency and position as a member of the sheriff’s office; that, on said date, Smith, in a highly wrongful and grossly negligent manner, shot and killed the decedent Stringfellow, and that such negligent and wrongful death was the act of both
The defendants, in their answer, denied all of the material allegations of the declaration, and set np affirmative matter to the effect that the deceased, at the time he received his mortal wounds, had been arrested while bringing supplies to an illegal whiskey still and was trying to escape; that he was a fleeing felon at the time; that his death was due to his own negligence; and that the death of the decedent was unforseen and unavoidable and not due to the negligence of either of the defendants.
The issue was submitted to a jury, which found a verdict for the plaintiffs in the sum of $50,000. Upon defendants’ motion for a new trial, the same was sustained unless the plaintiffs should, within ten days, enter a remittitur for $25,000. This order of the court was promptly accepted by the plaintiffs. The appeal is by the defendants from the judgment entered.
There were only two witnesses to this killing, E. W. Thompkins and James H. Smith. Thompkins, thirty-four years of age, an honorably discharged combat naval veteran with overseas duty, who had never been convicted of any crime or even arrested therefor, was called as a witness for the plaintiffs. He testified that he lived slightly more than a quarter of a mile from the whiskey still in question; but it was not his still. It was on the land of the International Paper Company. He said that he was going to the still that morning in search of his hogs and that he had engaged Melvin String-fellow to help him. Ira Ford String-fellow, Melvin String-fellow and the witness, in that order, and about three feet apart, were walking along a path. Ira had four or five jugs in his hands. He said that he and Melvin had nothing. They were about to cross a small creek. Ira had just put one foot on the footlog when he suddenly turned and started to run. Just as Ira.
James H. Smith, called as an adverse witness for the purpose of cross-examination, admitted that he was a duly appointed and acting deputy sheriff, working-under Sheriff W. D. Bearry; that he was being paid to act as a deputy by the sheriff, and that the sheriff knew that he was at the still; and that he was acting with the knowledge and consent of the sheriff. He and another deputy had discovered the still on Monday. He spent four nights keeping a watch. The shooting occurred about 7:30 or 8 o’clock the following Friday morning, May 26, 1961. He went to the still to see if a “run” had been made that night. As he was looking over the ground, he heard jugs “tinkling” and decided that it was too late to call for help and that he would have to handle the problem by himself. He had a double barrel 12-gauge shotgun, loaded with 00 buckshot and No. 4 shot. He was standing between two vats when
With the evidence by the Avidow, shoAAdng the decedent’s age at nearly twenty-two, that he was earning in excess of $2 an hour at Ingalls, and love and affection for her and the living child — the second not then being born — the plaintiffs rested.
On his direct examination for the defendants, Smith said that he had never fired this gun before that day. He obtained the shells from Sammy Havard, another deputy. However, one day while he Avas watching the still, he struck a bloAV with it in an effort to kill a snake
W. D. Bearry, the Sheriff, testified that he knew that Smith and Havard had this still under observation, they had reported it to him from time to time, and he let Smith have the gun in question, which he had owned about twenty years. As far as he knew, it was in perfect condition. However, on cross-examination, he said that, normally it would be safe; but after an examination he did not then think so. Counsel had the witness to
(Hn 1) The appellants have assigned a number of errors, but they all turn on the question as to whether (1) they were entitled to a peremptory instruction, (2) whether the verdict is contrary to the overwhelming weight of the evidence, and (3) whether the verdict is excessive.
The evidence of the only two eye-witnesses is in sharp dispute: Smith said he called out to the parties in words, showing that he was an officer and trying to put Ira and the others under arrest. Thompldns’ evidence amounted to a denial of that and was that Smith said nothing. Smith said that Melvin and Thompldns were bringing jugs to the still. But Thompldns said that he and Melvin had nothing. Smith said that he pushed the safety off, not to shoot fleeing felons, but in fear that those, whom he could not see, might have guns, and that the gun went off accidently. But Thompldns said that, as Smith came near them after the shooting, he cursed them and told them to lie there; and that, before he came over the creek, he reloaded his gun, and proceeded to curse them as they lay helpless on the ground. Significantly Smith made no claim that, at that time, he made any explanation or expressed any regret on account of an accidental firing of the gun. On the contrary, if Thompldns’ version was true, the firing of the gun without notice and the language of Smith thereafter would indicate gross negligence and wilfulness and wantonness. Besides, there was no claim of any kind of inspection after the use of the gun as a cudgel in an attempt to kill a snake.
Hinton v. Sims, 171 Miss. 741, 158 So. 141, was a suit by the widow and children of Hinton to recover for the death of their husband and father, wrongfully caused by Sims while acting as deputy sheriff. The sheriff and his two deputies, Sims and another, had found a
The opinion quoted Sec. 1227, Code of 1930, now Sec. 2470, Code of 1942, Rec., as to arrests. It said that the officers had no right to arrest Hinton without a warrant unless they had reasonable ground to suspect and believe either that the still was his, or that he was operating it; and in making the arrest, they were required to inform him of the object and cause of the arrest. However, the court passed that question because it was of the opinion that Sims’ attempt to arrest was illegal
In the present case, while Smith testified that he put the parties under arrest, Thompkins testified that he did nothing of the kind. Since the jury accepted the plaintiffs’ theory, Hinton v. Sims, supra, is directly in point.
Consequently, the court was not in error in refusing the requested peremptory instruction. The evidence was ample to sustain the verdict, and it was not against the great weight of the evidence. (Hn 2) According to the evidence for the plaintiffs, there was justification for the award of punitive damages in addition to actual damages. The court having required a remittitur of $25,000 of the $50,000 verdict, this Court cannot say that $25,000 is excessive.
It follows that the judgment must be, and it is, affirmed.
Affirmed.