State ex rel. Johnson v. Cunningham

1. Sheriffs and Constables. Apprehension of fugitives. Misdemean-ant. Negligent shooting. Action on bond. Arrest. Mode of making arrest. Gare required. Killing fugitive misdemeanant. Plea. “At.” “Towards.” Mode of arrest. Discharge of firearms. 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. 2. Arrest. Mode of making arrest. Gare required. An officer arresting a fugitive misdemeanant owes to him the duty to exercise care and precaution not to injure him; nor must he discharge a firearm while in pursuit, in such a manner as to cause such fugitive injury. 3. Sheriffs and Constables. Action on bond. Killing fugitive mis-demeanant. Plea. “At.” “Towards.” Where a declaration in an action against a sheriff and his bondsmen for the killing of a misdemeanant in attempting to effect his arrest, alleged that the sheriff failed to faithfully perform the duties of his office and disregarding such duties in his attempt to arrest “J” for the offense of disturbing public worship, did negligently and unjustifiably fire his pistol “at” and “towards” the said “J” as that the ball struck and killed him. In such case the gravamen of the cause of action was the sheriff’s negligence in making the arrest, whereby deceased lost his life, the word “at” meaning “near, about, under, over, toward,” and the word “toward” “in the direction of” and were therefore not effective to narrow the charge to an allegation that the sheriff pointed and aimed his pistol directly at deceased when it was fired. 4. Sheriffs and Constables. Liability on bond.' Mode of arrest. Discharge of firearms. A sheriff pursuing a fleeing misdemeanant who willfully and intentionally fires a modern pistol of high power in the direction of such fugitive and the bullet strikes and kills him, is guilty of a negligent, intentional and willful wrong for which he and his hondsmen are liable, whether he shot directly at the fugitive or the bullet struck a twig and glanced and struck deceased. 5. .Weapons. Firearms. The highest degree of care is exacted of a person using firearms. They are extraordinarily dangerous, and in using them, extraordinary care should be exercised to prevent injury to others. 6. Abrest of Fugitives. Discharge of firearms. The custom among officers to fire their pistols when pursuing fugitives, even when they are misdemeanants as a ruse to prevent their further flight, is a reckless use of firearms.

Appeal from the circuit court of Prentiss county. Hon. J. H. Mitchell, Judge. Suit by the state for the use of John A. Johnston, and others against W. W. Cunningham and others. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court. Appellees’ argument seems to be based upon the idea that the phrase in the declaration, viz.: “Fired his pistol at and towards the said Johnston,” must be met by proof on our part, that the sheriff actually fired his pistol directly at and towards the boy who was killed; and that proof that the pistol was fired to one side, or above the boy, meets the issue presented by the pleadings, and entitles them to a verdict. Counsel’s argument, reduced to the last analysis, simply means this, that if the sheriff had offered proof that he fired one inch to the right, or above the boy, or any other inappreciable distance, and could have convinced the jury of the truth of such statement, that this would entitle him to go free of all liability, because he had shown that he had not fired directly at and towards the boy. The two words “at and towards,” taken in the narrowest sense, do not necessarily mean directly towards. The word “at” in its primary meaning and significance, means “in or near;” and the word “towards” means “in the direction of.” So giving the phrase its primary meaning, it could but mean, “in or near the direction of the boy;” but we contend that this phrase, taken in connection with the other matter alleged in the declaration, is broad enough to cover liability for the negligent, careless, willful and intentional killing of the boy by the firing of the pistol by the sheriff. The only case which we have been able to find where a similar phrase has been construed is that of Lange v. State, 95 Ind. 114, 115. But we submit, that even if it were incumbent upon appellants, under the pleadings, to prove that the sheriff fired directly at and towards the boy, as they so strongly contend that it does, but which we in nowise admit, the peremptory charge should have been granted upon the second ground urged in our original brief. That is to .say, there was ample evidence by appellants’ disinterested witnesses, and the physical facts show, that the shot, whether intentionally or not, was fired directly at and towards Johnston, and there was no evidence to countervail this. The testimony of appellees’ witnesses was utterly at war with the proven physical facts and the laws within the knowledge of common experience and did not produce even a scintilla of evidence. Belative to the extreme care required by those who handle firearms and the liability for injuries inflicted by ]iy their discharge, counsel seem to think that these cited in our original brief go to unwarranted extremes. In view of the lamentable frequency with which injuries and death occur from the negligent handling of firearms, we doubt if they go far enough. There is a line of cases in which injuries are inflicted by one to another of a hunting' party. The courts in these cases hold the plaintiff to proof of negligence in the handling of the firearm, apparently holding that the party injured, to a certain extent,, assumed the risk, or at least voluntarily exposed himself to the risk of accidental injury by joining the hunting party. 12 Am. & Eng. Ency.- of Law', 520. In the case of Dixon v. State, —-—■ Miss.-, 61 So. 423, cited by counsel, the principal ground "for reversal In that case, was that an instruction was given which was "tantamount to a peremptory charge. This being a criminal case, the court held such a charge to be reversible error, for a peremptory charge can never be given to find the defendant guilty. Had this been a civil suit against Dixon for damages, would there have been any question as to the propriety of giving such a charge? He would have been liable beyond question. To this point see the case of Knott v. Wagner,-Tenn.-, 16 Lea., 481, where it was held that the defendant fired his gun within two hundred yards of a public highway, which was forbidden by the statutes of the state, was liable for the injuries resulting from his wrongdoing. The case of Gleghorn v. Thompson, 54 L. E. A. 402, also cited by counsel, seems to have been decided upon the principle that the result of the defendant’s action, In firing at a marauding dog running up hill towards a highway, three hundred and fifty to four'hundred yards .away, the bullet striking some object and glancing and killing a man in the highway, which it is doubtful that ■defendant even saw, could not have been foreseen. But the principle of law laid down in the case cited in our •original brief is not criticised, or commented upon. To the contrary the annotator cites in the note to said case, the case of Sullivan v. Dunham (N. Y.), 47 L. E. A. 715, where it was held that where a person was killed on a public highway by a missile thrown by the explosion of a blast, the person firing the blast was held guilty as a trespasser without regard to his negligence. This seems to be the general rule where dangerous agencies are used. Counsel for appellant, in their able brief, set up two lines of argument to convince this court of the merit of their contention, under assignment of error I. First, they take the position that the very act of the sheriff in shooting (though the death of Johnston is shown to have been effected by an entirely different cause, and under entirely different circumstances of shooting to that alleged) was unlawful, and that by his unlawful conduct, appellees are precluded from showing circumstances exculpating themselves from the clutches of the law. So at this late hour, appellants seek to avoid the very burden assumed by them in specifically averring, in their declaration, that appellee Cunningham, sheriff did on this occasion, “negligently, carelessly, recklessly, wilfully, intentionally, wrongfully, and unlawfully, fire his pistol at and toward the said Frank Johnston,” etc. This appel-lees denied; the issue so made went to the jury, and they found against the contention of appellant. The purpose of the court in refusing instructions numbers 6, 7, and 8, complained of by appellant under assignment II, could not have escaped again the understanding of the learned counsel for appellant; and the instructions complained of under assignment III, given ap-pellees, announced in unmistakable terms the purpose of the court to confine appellants to the issue made in this, declaration, which was the only open course in the absence of amendment, and in support of the court’s action, we quote the following authorities, which we think amply support his views, to wit: Hughes on Procedure, 1905 Edition, “Variance,” page 1254; Bristow v. Wright, L.. C. 135; I Gr. Ev., 51, 63-65; 2 Id.; See Res Adjudicada,. Pleadings, among other things, limit issues and narrow proofs. Consequently they are to exclude departures and variances; and courts cannot therefore authorize the latter without practically abolishing pleadings, which is impossible in a constitutional government. See, also, Puterbaugh’s Common Haw Pleading and Practice, 1904-Edition, pp. 27, 28. Also, the following: 29 Cyc. 583-5; 31 Cyc. 672, 3, 674; Richards v. City Limber Go., 101 Miss. 691; A. é V. R. R. Co. v. Groome, 97 Miss. 209; 14 Am. & Eng. Pleading & Practice, pp. 342, 343. The contention that, because this pistol was fired by the voluntary act of the sheriff and resulted in the death of Johnston, appellees are precluded from being heard on the defense set up in this record, is a most unreasonable demand — one that could not be maintained even under a declaration of general negligence against the sheriff for wilfully, etc., firing his pistol in the manner shown by this record. The sheriff’s sworn and official duty to make arrests under the circumstances such as confronted Cunningham on this occasion,, is stripped by counsel for appellant of every semblance of its meaning. While no one would think it his duty, or even Ms right, to shoot wilfully or negligently at or toward Johnston, as alleged in this case, to effectuate this arrest, yet both public policy and the law demand that a sheriff exercise all reasonable means to arrest the participants of a drunken brawl and fight on an occasion of a religious meeting on the Sabbath Day. Not to be active and resourceful in effecting such arrest would expose a peace officer to the daring and ridicule of criminals and subject him to the contempt of law-abiding citizens. A sheriff is only confined in the selection and exercises of the means of arrest to such reasonable means as ordinarily prudent men would likely adopt under similar circumstances. The officer, on this occasion, attempted the arrest by means of pursuit, by commanding decedent to stop, by threatening to shoot him if he did not stop, and by actually firing Ms pistol to get him to stop, at what would appear to any reasonable mind to be a safe range to preserve the safety of Johnston and all others. As to whether or not a sheriff or anyone else, in an effort to perform a duty, has selected reasonable means, and has exercised reasonable care in carrying the means into effect is, when controverted, a matter to be left to the sound disoretion of a jury. Counsel seem to overlook the fact that the shooting was adopted by the sheriff as one of the means of achieving this arrest. There is the strong and well-reasoned case of Gleg-horn v. Thompson (Kan.), cited in 54' L. R. A. 402, in which a ball fired from a g*un at a dog was deflected, and struck and killed Thompson, who was travelling upon the public highway in the vicinity of the directed shot. Appellant claimed, in that case, as in this, that the firing of the Winchester rifle at the dog, resulting in the death •of this man, precluded the offender from showing that the killing occurred by the misfortune or accident of an un-fiorseen, intervening cause, which deflected the ball and gave it the fatal range. But the court held differently. Now what constitutes actionable negligence? A reasonable man can be guided only by a reasonable estimate of probabilities. If men went about to guard themselves against every risk to themselves or others which might, by ingenious conjecture, be conceived as possible, human affairs could not be carried on at all. The reasonable man, then, to whose ideal behavior we '.are to look as the standard of duty, will neither neglect what he can forecast as probable, nor waste his anxiety •on events that are barely possible. He will order his precaution by the measure of what appears likely in the known course of things. Pollock, “Torts”, 36. But we cite the following case of Dixon v. Stale, 61 So. 423, which is another case of a deflected ball, in which the law -on this question is so clearly and forcefully defined as to place it beyond cavil or doubt. This case is found not •only on the highest character of reason, but is amply supported by the authorities cited by the court. We are perfectly contented to rely upon these two cases as the unmistakable announcement of the law on this subject. Complaint of counsel under assignment of error IV to the court’s ruling in permitting certain testimony introduced on the part of appellees, showing the custom among officials of experience, to fire as a rnse to effect arrest, cannot in any way be prejudicial to the rights of appellant, if, for argument’s sake, the same be conceded as error. This evidence was introduced to show the reasonableness of Cunningham’s purpose in firing off his pistol, and to go in for what it was worth in showing the reasonableness of the stories of the witnesses for appel-lees, who swore the pistol was so fired. We most earnestly insist that this record discloses p cause fairly submitted to a jury on the issue joined, and one in which a fair jury rendered its finding on the facts as presented on the issue, and that thei.r finding should not be molested by this court.