Wise v. Curl

SAYRE, J.

Plaintiff in error sued the defendants for wrongfully shooting and killing her intestate. The allegation of the second count was that “the death of her intestate was caused by the wrongful act of the defendants, their agents or employees.” One is not responsible for the wrongful acts of his agents or employees unless done within the line or scope of their assigned duties. The count failed to aver a case of defendants’ responsibility for the act of their agents or servants, and the demurrer was properly sustained.

After the plaintiff had rested her case, the court on motion excluded the testimony as to the defendants the Tennessee Coal, Iron & Railroad Company and Strickland. This was bad practice, since the testimony introduced by plaintiff was not illegal, nor was it either ir *326 relevant or immaterial to the case stated in the complaint. It was, however, not sufficient to take the case to the jury, because it wholly failed to show that either of the named defendants was present at the difficulty in which plaintiff’s intestate lost his life, or was in any way connected with that event, or responsible for its consequences. In such cases the practice here shown has been allowed to pass muster in this court on a number of occasions on the theory that it was error without injury. And so it is here. As to these parties the court later on properly gave the general charge for them with hypothesis. The same course was taken as to defendant Hilton.

The case proceeding as against the defendants Higdon, Curl, and Cowan, it appeared without dispute that Higdon was not present, but that the two last named were, and that they, acting as lawfully appointed deputies of Higdon, who was sheriff of the county, in the effort to execute a writ of possession in favor of the Tennessee Company against plantiff’s intestate and others, had become involved in a difficulty in which they had shot and killed plaintiff’s intestate. They justified on the ground of self-defense, and, among other things, offered in evidence the writ under which they were acting. The writ was clearly admissible on the question as to who was in the wrong in bringing on the difficulty.

There was no evidence which would authorize a finding that the defendant Higdon was present or in any wise responsible for what was done by Curl and Cowan, except as such responsibility might have been inferred from the bare fact that they were engaged at the time in executing a writ as his deputies, though acting in the respect complained of entirely upon their own in *327 itiative. If the sheriff ivas liable in that case, it could not be enforced in the form of action adopted.

The issues between plaintiff and the defendants Curl and Cowan were submitted to the jury. If there was error in the trial of those issues, there has been no argument to show in what it consisted. An examination of the record has not suggested to us any reason for reversing the result.

In the brief it is said that the court erred in sustaining the demurrer of some of the defendants to the third count of the complaint as amended, but we find no assignment of error directed to that point.

Finding no error, the judgment is affirmed.

Affirmed.

Dowdell, C. J., and Simpson, Anderson, and Somerville, JJ., concur. McClellan and Mayfield, JJ., not sitting.