49 S.W.2d 874 | Tex. App. | 1932
This suit was instituted by appellant, Walter Tabor, against appellee A. B. McKenzie, sheriff of Limestone county, and the American Surety Company of New York, a corporation, surety on his official bond, to recover damages for personal injuries suffered by him as the result of a shot fired by appellee McKenzie, or certain of his deputies, in attempting to effect his arrest.
The case was submitted on special issues. The issues submitted by the court and the answers of the jury thereto were as follows:
"No. 1: Was the plaintiff, Walter Tabor, shot by either A. B. McKenzie, sheriff of Limestone county, Will Adams, deputy sheriff of Limestone county, or Wiley Sims, deputy sheriff of Limestone county, while such officers were in the act of effecting his arrest? Answer: Yes.
"No. 2: What amount of money, if paid in cash at this time, will adequately compensate the plaintiff, Walter Tabor, for the damages, if any, by him sustained by reason of the injuries, if any, inflicted on the occasion in question by either A. B. McKenzie, acting as sheriff, or by either Will Adams or Wiley Sims, at the time acting in their official capacity as deputy sheriffs, respectively? Answer: None."
The court, at the request of appellant, submitted his special issue No. 1, which issue and the answer of the jury thereto were as follows: "No. 1: Did A. B. McKenzie, Will Adams, Wiley Sims, or either of them, in attempting to arrest plaintiff, shoot plaintiff and inflict the injuries complained of, while he, plaintiff, was fleeing, or running from said officers to evade arrest? Answer: No."
The court, at the request of appellees, submitted their special issues Nos. 3 and 4, which issues and the answers of the jury thereto were as follows:
"No. 3: Was the act of A. B. McKenzie, Wiley Sims and Will Adams, or either or them, in shooting at the time and in the manner they did shoot, under all of the existing circumstances, negligence, which negligence, if any, was the proximate cause of the injury to plaintiff? Answer: No.
"No. 4: Was the act of one of the shots fired by A. B. McKenzie, Will Adams or Wiley *876 Sims, striking plaintiff and injuring him, if one of them did strike him, an accident or unforeseen result of such shooting and not a natural and probable result of such shooting and reasonably to have been expected under all of the circumstances? Answer: Yes."
The court entered judgment on the verdict for appellees.
Appellee American Surety Company of New York assails appellant's right to maintain an action on said official bond for redress for his injuries. Said bond was dated December 15, 1926, and covered a two-year term of office, beginning January 1, 1927, during which term appellant sustained the injuries complained of herein. It was made payable to the Governor and his successors in office and conditioned as required by law. Such conditions were, in substance, that appellee McKenzie would account for and pay over, to persons authorized by law to receive the same, all moneys collected, that he would execute and return all lawful process, and faithfully perform all the duties required of him by law. Said surety contends in this connection that an action can be maintained on an official bond by one not named therein only when the right to do so is conferred by statute, either in express terms or by necessary intendment, and that no such statute existed at the time appellant's cause of action arose, nor at the time of trial herein. The identical issue presented by such contention was considered by the Circuit Court of Appeals of the United States for the Fifth Circuit, in an appeal from the District Court for the Northern District of Texas, in Bracken v. Cato,
Appellant presents various assignments of error in which he complains of the action of the court in submitting, over his several objections, appellees' special issue No. 3, hereinbefore quoted. Appellant objected to the submission of said issue on the ground, in substance, that his suit was based on the sheriff's official bond for damages for a breach thereof, and that no issue of negligence was involved. The rule governing the liability of sheriffs and the sureties on their official bonds is stated in 24 R.C.L. p. 966, par. 60, as follows: "A sheriff and the sureties on his official bond are liable in a civil action for damages arising from the intentional or negligent shooting of a misdemeanant who flees to avoid arrest, although the officer merely fires his pistol in his direction to cause him to halt. The law which gives an officer the right to kill an escaping felon requires him to know that he is the felon, not an innocent person whose life he is attempting to take. Hence if a sheriff's deputies attempt to arrest an innocent person, erroneously supposing him to be a felon whom they have been sent to apprehend, and kill him as he tries to escape, the sheriff and his sureties are liable therefor." We deem it proper in this connection to call attention to the fact that in this state an officer has no right to use greater force in arresting one suspected of having committed a felony than one suspected of having committed a misdemeanor. Vernon's Ann. Penal Code, art. 1212, and cases cited in notes thereto; Vernon's Ann. Code of Criminal Procedure, art. 241, and authorities cited in notes thereto. The operation of a still and the manufacture of intoxicating liquors is a felony in this state. Penal Code, arts. 666 and 689. Appellee discovered appellant in company with three others in close proximity to a still in operation. He approached for the purpose of arresting said parties, and appellant and another ran. Appellee and his deputies fired in the direction of appellant as he ran, as hereinafter more fully stated. There was no testimony that appellant was interested in the still, nor that he had in any way participated in operating same. See further, on the issue of liability, King v. Brown,
Appellant contends that the testimony introduced in this case was wholly insufficient to raise an issue of pure or unavoidable accident, and that the court therefore erred in submitting appellees' special issue No. 4 hereinbefore quoted. The testimony presents several sharp conflicts. Appellee testified that he shot in the direction of appellant, but over his head; that he did not bring his gun to position, but fired with the butt toward his hip; that his deputies, Adams and Sims, both shot, one with a pistol and the other with a rifle; that his purpose was to frighten appellant so he would stop. Appellee's deputy Sims testified that he did not shoot at anybody intending to hit him; that he fired two or *878 three times, but did not take accurate aim nor try to shoot anybody; that appellee's deputy Adams was shooting, but he did not know whether Adams shot at anybody or in the air; that all three were shooting at random; that he may have shot appellant, and that appellee, from the way he was shooting, may have shot him. Adams did not testify. There was also testimony that appellee McKenzie knelt on one knee, raised his rifle to his shoulder, and shot on a level with appellant; that when appellant fell appellee approached him and asked appellant if he had shot him; that appellant asked why he wanted to shoot him and that appellee replied. "I can't bring a rope and rope you." The testimony was uncontradicted that appellee was shooting what is commonly called a soft-nosed bullet; that appellant was shot from the rear in the upper part of the thigh; that the entrance hole was small; that the thigh bone was shattered by the bullet, and that the hole where the same passed out of the leg was much larger than the hole at the point of entrance, the former being about the size of a man's hand. There was testimony that appellant was about seventy-five yards from the officers at the time he was shot; that the space between him and the officers at that time was open. There was also testimony that trees, undergrowth, and shrubs were located in that neighborhood. Appellee testified that the shot which struck appellant must have first struck a tree or limb and have been deflected thereby to appellant's leg. Search failed to reveal any mark indicating that the bullet first struck a tree or shrub and was deflected therefrom to appellant's leg. It is impractical to recite all the testimony bearing on this issue, but the foregoing is intended to indicate the general nature of the same. "Accident" is a word of various shades of meaning. The kind of accident under consideration is generally denoted by a modifying adjective such as "pure," "unavoidable," or "inevitable." An inevitable accident is defined in 1 Shear. R. Neg. (6th Ed.) §§ 16, 18, as follows: "An accident is inevitable if the person by whom it occurs neither has nor is legally bound to have sufficient power to avoid it or prevent its injuring another. * * * But in order to prove that an accident was inevitable, it is not always enough to show that under the circumstances existing at the time, it could not have been then avoided. It must also be the fact that the defendant was not guilty of any negligence which brought about any of those circumstances."
The Commission of Appeals, in Dallas Railway Terminal Company v. Darden, 38 S.W.2d 777, 779, par. 1, defined such accident in the following terms: "An unavoidable accident is one which is not occasioned in any degree, either directly or remotely, by the want of such care or prudence as the law holds every man bound to exercise. If the accident complained of could have been prevented by either party, by the use of means suggested by common prudence, it was not unavoidable. Galveston, H. S. A. Ry. Co. v. Gormley (Tex.Civ.App.)
The proper application of the term is explained in 20 R.C.L. p. 20, as follows: "If the injury resulting from the act could have been foreseen by a prudent person, the perpetrator will be held accountable therefor; the case is not one of accident. And conversely, if the injury could not have been foreseen, it is to be attributed, not to the actor, but to accident. Accident, then, is an occurrence that could not have been foreseen."
It is of course impossible to announce a fixed rule, applicable to all cases, by which it can be decided just when such issue is presented. The facts of each particular case must be examined with a view of ascertaining whether a theory is presented under which the accident could have happened, notwithstanding the exercise of the degree of care required by law. Considering the circumstances of this case as a whole, we do not think it can be consistently said that, if the shot which struck appellant proceeded directly from the gun of appellee or his deputy to the point where it struck his leg, such striking did not result, even remotely, from the want of exercise of such care or prudence as the law required under such circumstances. It is well known that even a good marksman shooting at such distance sometimes misses the object he shoots at, and, conversely, sometimes hits an object he did not intend to hit. Appellee's theory that the bullet which struck appellant's leg had first struck a tree or shrub and been deflected therefrom is not only uncorroborated by any physical evidence of such striking, but is in effect negatived by the undisputed testimony concerning the character of the bullet and the appearance of the wound made in appellant's leg thereby. The possibility of such striking and deflection ought to have been as apparent to appellee and his deputies before they fired as afterward. If so, we do not think it can be said that the possibility of injury to appellant could not have been foreseen, nor that his injuries did not result even remotely from a lack of care on their part. We therefore conclude that the issue of pure or unavoidable accident was not raised by the testimony introduced at the trial of this cause. Dallas Ry. Terminal Co. v. Darden, supra, page 779 of 38 S.W.2d pars. 2, 3 and 4, and authorities there cited; State v. Cunningham,
Appellant presents a group of assignments of error in which he complains of language used by one of appellees' attorneys in the cross-examination of one of his witnesses, and of language used by appellees' attorneys in their arguments to the jury. One of appellant's bills of exceptions shows that he was a barber, and that, while the extent of the disability suffered by him as a result of the injury to his leg was under investigation, appellees' counsel asked appellant's witness on cross-examination to what extent such disability would affect him as a barber and as a maker of whisky. Appellant objected to the injection of his ability to make whisky into such examination, and the court instructed the jury not to consider such reference. Another of appellant's bills of exceptions shows that one of appellees' attorneys, in addressing the jury, said: "Gentlemen of the jury, this is just the case of another moonshiner coming into court trying to get something out of Boss McKenzie, and you are not going to permit this kind of a man to wring money out of your sheriff and mine while he is trying to do his duty." Appellant objected to such language on pertinent grounds, but no action by the court on such objection is shown. Another of appellant's bills of exceptions shows that one of appellees' attorneys, in addressing the jury, said: "Gentlemen of the jury, you cannot expect your sheriff to break up bootlegging in this country and bring in the bootleggers if he has to put salt on their tails in order to catch them, or to rope them in order to bring them in. He has a right under the law to shoot them if they undertake to get away, and you know it. It is the only way in which a bootlegger can be apprehended. If the bootlegger runs and succeeds in getting away, there is not one chance in a hundred of his ever being apprehended, and you ought to support your sheriff in his efforts to enforce the law by recognizing the right which the law gives him to shoot a moonshiner who is about to escape. This is a contest between law and order on the one side and a bunch of moonshiners and lawbreakers on the other, and as for me, I have enlisted on the side of law enforcement, and I call upon you now to take your stand and support your sheriff and my sheriff in his attempt to enforce the prohibition laws in this county." Appellant objected to said argument on pertinent grounds, which included the fact that there was no testimony in the record that appellant ever made or sold a drop of liquor, and that the law with reference to the right of appellee to shoot a person to prevent his evading arrest was misstated. No action by the court on such objection is shown. Both said bills of exceptions show that such argument was not in reply to or justified by any argument of appellant's counsel. There was no testimony before the jury that appellant had ever engaged in the sale or manufacture of whisky. While the testimony showed that at the time appellee and his deputies approached to arrest him he was standing with three others at or near a still in operation, and immediately began to run, there was no attempt to show that he was interested therein, or that he in any way participated in the operation thereof. Under the circumstances shown, the act of appellees' attorney in embodying in his question an inquiry as to appellant's ability after his injuries to make whisky was improper and highly prejudicial. Levinski v. Cooper (Tex.Civ.App.)
Our holdings on the issues above discussed and the disposition made of the case render consideration of other errors assigned unnecessary.
The judgment is reversed, and the cause remanded.