Lead Opinion
Appellant, Eugene Lawson, individually and as administrator of the estate of his wife, sought damages from John Burnett, Ulys Lawson and Charlie Louis Lawson for the wrongful death of his wife under KRS 411.130 and for personal injuries to himself. That statute authorizes the personal representative of one whose death “ * * * results from an injury inflicted by the negligence or wrongful act of another * * * ” to recover damages. It provides how the proceeds of the recovery shall go.
Lawson alleged that Burnett was sheriff of Whitley County, Kentucky, and Ulys Lawson and Charlie Louis Lawson were deputy sheriffs employed by Burnett and acting within the scope of such employ
John moved for summary judgment, which motion was sustained. A judgment was entered accordingly and was made final as to John under Cr. 54.02(1), but the action was continued generally as to the other two defendants. Eugene’s testimony, given in a criminal proceeding, was considered by the court in support of the motion. He had stated that he and his wife were in Tennessee, just over the Kentucky border, when he saw Ulys and Charlie nearby. He and Nancy got into their truck and Nancy drove. Eugene testified that he recognized Ulys and Charlie and knew they were deputy sheriffs; that at some prior time Ulys had threatened him; that after he had observed these two men sitting in their automobile his “six sense” told him they could be waiting on him, so as they drove along he got out his shotgun and loaded it with five shells filled with double ought buckshot; that when his car had passed the place where the deputies’ car had been parked he noticed them behind him signal-ling with their lights; that he told his wife that the law was behind them and for her to pull over and stop, which she did; that the deputies’ car stopped too; that Ulys and Charlie got out of their vehicles; that after he observed that Ulys and Charlie were armed he reached back into his car and armed himself with his loaded shotgun and confronted the deputies with it.
In his own words, Eugene then stated: “I said, ‘Eulis, I don’t want to have no trouble with you. Would you please get back in the car.’ * * * I said, ‘Charlie, what’s this all about?’ He said, T have a warrant for you.’ * * * I said, ‘What kind of warrant have you got?’ He said, ‘I’ve got a peace warrant for you.’ I said, ‘Let me read it.’ He held the flashlight for me to read it. It was dark but the gas pumps were on. There was quite a bit of light there. I read the peace warrant and I said, ‘Charlie, I won’t go with Eulis to jail.’ I said, ‘If you’ll call the sheriff up here, I’ll go with the sheriff, or call the state police, I’ll go with the state police.’ I begged him to call the sheriff or the state police either one. Neither one wouldn’t call. Eulis said, ‘No, we’re not calling no one.’ Well, I said, ‘Charlie, will you take me to jail?’ I said, ‘I’ll go with you.’ He said ‘Yes’. I said, ‘Will you take me to jail in my truck?’ I said, ‘Yes, let Nancy drive it or you can drive it,’ and he agreed to take me to jail.” Eugene continued: “Well, we were walking toward the truck and Charlie had a shotgun laying along like this in his arms. We were walking toward the truck and Eulis ran around Charlie on the opposite side from me and we were getting right at the truck door by this time, standing right at the truck door, and I heard Eulis say, ‘Hell, no, you’re not going to jail in your own truck.’ At that time I had hold of Charlie’s arm, at that time, when we were fixing to get in the truck. He reached up and I remember having my hand on the door and I heard a shot; that’s all I heard now. Either he reached around Charlie, or he reached over him, I don’t know which, because I am blind in my left eye. He reached over him or around him, one. I heard that one shot; that’s all I heard. I don’t know how I got over the bank but I was standing about as close to the embankment as far as this lady here. I don’t know how I got over the bank. All I heard was this shot. When I came to under the embankment, Charlie Lawson had me sitting up. My leg was in such a shape I thought I was dying. I thought I was just dying — the pain in my leg. The bullet had struck me right here and came out my spine. * * * Q48. ‘Now, tell what happened.’ A. ‘When I came to, Charlie had me sitting up and I was in a daze. I looked up and Eulis was standing right over me, snapping his pistol,
The physician who examined Nancy at the hospital to which she was removed shortly after the shooting testified that she died of “multiple gunshot wounds of the anterior chest, neck and right shoulder region.” He opined that the wounds were made by “multiple pellets.”
KRS 70.040 states that “The sheriff shall be liable for the acts or omissions of his deputies.” In Johnson v. Williams, Adm’r., Ill Ky. 289,
Sheriffs and their deputies are required to execute warrants of arrest as a part of their official duties. KRS 70.079 admonishes that:
“It shall not be a sufficient return of any process, that the officer was prevented by force from executing it.”
In executing a warrant of arrest, the officer must inform the person named in the warrant of his purpose and the offense for which the arrest is being made. Then, he either places the subject in restraint or the subject voluntarily places himself in the custody of the officer. The officer has the duty not to use unnecessary force in making the arrest. KRS 431.025(3); Ad
Here the claim is that excessive force was used. To recover Eugene must prove excessive force and its use in the performance of an official duty as distinguished from a personal act. In West v. Nantz, Adm’r.,
“However, if his deputy, Hood, exceeded his rights as an arresting officer in the discharge of his official duty, and inflicted the injuries on the deceased, Nantz, as charged * * * then his principal, West, would be responsible therefor personally, as well as on his official bond. See Johnson v. Williams’ Adm’r,111 Ky. 289 ,63 S.W. 759 ,23 Ky. Law Rep. 658 ,54 L.R.A. 220 , 98 Am.St. Rep. 416. Many other domestic cases following the rendition of that opinion have approved it without dissent.”
Statements made by Eugene indicate that the deputies were acting in an official capacity which, if true, would impose liability on the sheriff. They had a warrant for the arrest of Eugene; they used their police flashing signal directing that Nancy bring the truck to a halt; they displayed the warrant and permitted Eugene to read it; they directed that he accompany them to jail. If the proof on a trial reveals these statements to be true facts — -it will be incumbent upon the court to decide that they were acting officially on the occasion in controversy. Indemnity Ins. Co. v. Bonta,
The next question to be resolved is whether greater force than necessary was used in wounding Eugene. Had his resistance to arrest ceased before the shot was fired? Was shooting necessary? A more difficult problem is presented with respect to the death of Nancy. Why was she shot and did her killing occur as a part of the arrest of Eugene? If not, was it so closely related by time or events to make it a part of official acts of the deputies? These are subjects to be developed at a jury trial. Grau v. Forge,
The sheriff relies on Howard v. Caudill,
Appellees claim that Eugene made judicial admissions which preclude any recovery in that while at the hospital he remarked several times that he had killed his wife. We do not construe these statements to be judicial admissions exonerating the officers. See definition of Judicial Admission in Burgess v. Consider H. Willett, Inc.,
Here summary judgment was inappropriate. See Yates v. Wilson Bros. Trucking Co., Ky.,
The judgment is reversed for further proceedings consistent herewith.
Concurrence Opinion
(concurring in result).
I concur in the result but I would go further and hold that the sheriff should be held liable as master for the wrongful acts of his agents (his deputies) under our case laws pertaining to Master and Servant.
OSBORNE, J., joins with me in this separate opinion.