State ex rel. Johnson v. Cunningham

Reed, J., delivered the. opinion of the court. Appellants, the parents and brothers of Frank Johnston, brought suit against appellees, W. W. Cunningham, the sheriff of Prentiss county, and the sureties on his official bond, for the full penalty of the bond, claimed as damages for the wrongful death of Frank Johnston, who was shot and killed by the sheriff. Frank Johnston, when killed, was twenty years old. He was a hunci hack, carrying his head tilted far back and a little to one side, and was five feet high. On Sunday, September 18, 1.910, at a church meeting in the country, called an £ ‘ all Olay singing,” several boys, including Frank Johnston, became engaged in a fight, or disturbance of the peace The sheriff’s attention was called to the matter and with two deputies he proceeded to arrest the boys. The scene of the disturbance was something over one-hundred .yards from the church. When the sheriff and his deputies approached, Frank Johnston ran off through the woods and was followed by the officers and a number of ■other persons. After running a distance of one-hundred to one-hundred and fifty yards, the sheriff drew Ms pistol and fired. The boy dropped instantly, shot in the head, and died in a short time. While pursuing Frank — 148 — Johnston, the sheriff called to him, “Stop, or I’ll shoot you!” and the youth replied, “Shoot, damn you!” One witness testified that the sheriff fired just as Johnston made his reply. Another witness said that he heard the sheriff speak to Johnston and then shot as he turned his head to reply. The sheriff testified that he went some steps before firing. He says that he told Johnston several times to stop or he would shoot, and that the boy made reply. There was a clear or open space in the woods from where the sheriff stood when he shot to-where the young man fell. The distance between them is estimated by the witnesses to have been about fifteen or seventeen yards. The bullet entered the left side of the head, a little behind and above the left ear, and ranged forward and downward and to the right. The downward range of the bullet was estimated by one physician to be about thirty degrees, and by another, about forty-five degrees. The wound was a round bullet hole. Measurements by an engineer of the elevations of the places where the sheriff stood when he fired and where Johnston fell, as located by the witnesses for plaintiffs, show the same to be practically on a level. The sheriff statek that the young man was on higher ground than he was and he estimates the difference to be about six feed. There is a conflict in the testimony as to whether tibíe sheriff or the boy was on a higher elevation. The ipistol used by the sheriff was a 41 Colts, loaded with a long cartridge and a round nose lead bullet. Frank Johnston had been guilty of committing a misdemeanor, only when his arrest was sought. Appellants ’ testimony shows that the sheriff, while still following the. boy and comparatively near to • him, pulled out his pistol, presented it, fired, and the boy fell immediately, shot in the head. The sheriff testified that he fired at an angle-of forty-five degrees and at the same angle up. Several of his witnesses support his statement, that he did not aim directly at the youth, but to the right and up. — 149 — It is contended by appellants that the trial court erred in refusing them a peremptory instruction. There can be no question that a sheriff and the sureties on his official bond are liable in a civil action for damages arising from the intentional or negligent shootr ing of a misdemeanant who flees to avoid arrest. The officer owes to the fugitive the duty to exercise care and precaution not to injure him. He must not intentionally shoot a misdemeanant who is a fugitive, nor must, he •discharge a firearm while in pursuit, in such a manner as to cause such fugitive injury. It is claimed by appellees that the issue of the liability in this case is narrowed by the pleadings. They, in support of this claim, refer to the following allegation. in the declaration: ‘ ‘ Then and there negligently, carelessly, willfully, intentionally, wrongfully, • and unjustifiably, fired his pistol at and toward the said Frank Johnston, and the ball from the pistol so fired by the said W, W. Cunningham struck and instantly killed him, the said Frank Johnston.” Their argument is, in effect, that the proof must show that the sheriff pointed and aimed his pistol directly at the deceased when he fired; and that they would be relieved of liability in the case, as made by the pleadings, if it is established that he fired to the side, even though the ball thus fired struck and caused the death. We consider this view of the case quite too narrow. This suit is to recover for the death of Frank Johnston resulting from the firing of a pistol by the sheriff. In order to get the gist of the cause of action, we make a more extended quotation from the declaration: “Plaintiff further avers that the said W. W. Cunningham, while sheriff as aforesaid, did not faithfully perform and discharge all the duties of the said office •of sheriff and all acts and things required by law, or incident to the said office, as required by law, or- incident to the said office, as required by law and the obligations of his said official bond; bqt, to the contrary, not — 150 — regarding Ms duty as such, sheriff as aforesaid and plaintiff’s rights, for the use aforesaid, did on or about the 18th day of September, 1910, at Piney Grove Church in. said county and state and while acting as said sheriff, and in the course of Ms duty as such, attempted to arrest the said Prank Johnston, on information that he, the said Prank Johnston, was then and there disturbing' public worship, that in attempting to arrest the said Prank Johnston he went towards him and commanded him to halt, when the said Prank Johnston turned and ran away in attempting to avoid arrest, ’when the said W. W. CunMngham, in attempting to make the arrest as aforesaid, then and there negligently, carelessly, recklessly, willfully, intentionally, wrongfully, and unjustifiably fired his pistol at and towards the said Prank Johnston, and the ball from the pistol so fired by the said W. W. Cunningham struck and instantly killed him, the said Prank Johnston.” It will be seen that it is charged that the sheriff failed to faithfully perform the duties of his office, and that, disregarding such duties, did in his attempt to arrest Johnston for the offense of disturbing public worship, negligently, etc., fire his pistol, the ball from which struck and killed Johnston. The gravamen of the statement of the cause of action is the officer’s negligence in making arrest whereby deceased lost his life. We cannot see that the words “at and towards” have the effect of narrowing the charge in the declaration of liability, as contended. These words have a some what indefinite meaning. In the Century Dictionary “at” is described as “a preposition of extremely various use.” It is therein said that according to its context it is equivalent to “near, about, under, over, toward.” The same dictionary defines “toward” as meaning “in the direction of.” Anderson’s Law Dictionary says the word “at” “is somewhat indefinite.” A statute of Indiana made the pointing of a firearm “at or toward any other — 151 — person” an offense. In the case of Lange v. State, 95 Ind. 114, it was held that the pointing of a gun at the door of a dwelling wherein the person threatened was a sufficient proof that the gun was pointed “at or toward.” The court said, “The word ‘toward’ is óf very comprehensive signification, for it means, ‘ in the direction of. ’ ” The general significance of these words is controlled by the context. This is so in the case at bar. The charge against the sheriff is his failure in his official duties, consisting of his improper use and discharge of a firearm. It is admitted that he fired his pistol and that the ball therefrom struck and killed Johnston. The ball went out of the muzzle of the weapon and went into the head of the unfortunate youth. The ball was going in the direction of its victim when it struck. The sheriff, when asked by his own counsel on direct examination, “Did you shoot at him?” answered, “Tes.” He evidently understood “at” to mean in the general direction of. The proof in this case clearly establishes that the sheriff fired his pistol willfully and intentionally, and his act in so doing amounted to negligence. The explanation of counsel for appellee that the ball fired up and to the right struck a twig glancingly which diverted it to the left, where it struck another twig and then, glancing downward, went into Johnston’s head, is not in keeping with the reasonable and ordinary view of the matter. We must bear in mind that the sheriff was shooting with a modern pistol of high power, the ball from which would have easily gone through any twig of average size; and we should also keep in mind that the wound did not show that the ball was in any manner affected by having struck an object glancingly. On the other hand, a round bullet hole is shown. However, it is our view of the case that appellees should be held liable because of the negligent, careless, reckless, willful, intentional, wrongful, and unjustifiable discharge by the sheriff of his pistol while he was in pur — 152 — suit of the deceased, who had only committed a misdemeanor. The highest degree of care is exacted of a person handling firearms. They are extraordinarily dangerous, and in using them extraordinary care should be exercised to prevent injury to others. We quote from Cooley on Torts (3d Ed), p. 1232, as follows: “A high degree of care is necessary in the use or manipulation of loaded weapons in the presence or vicinity of other persons, and where injury results from a failure to exercise such care the defendant is liable.” We take the following rule from Barrows on Negligence, p. 367: “The bearer of loaded firearms is bound to exercise the utmost diligence in their handling and he is liable for any injury caused by their'discharge, unless it appear that he was entirely without fault.” We do not find that the sheriff was exercising the degree of care required by law. He has failed to show that he was without fault. He was running after the deceased, a youth charged only with disturbing the peace, through the woods and over uneven ground; his drawing and firing his pistol, under the circumstances as shown by the proof in this case, was indeed reckless and careless. The evidence discloses that there is a custom among officers to fire their pistols when pursuing fugitives, even where they are misdemeanants, as a ruse to prevent their further flight. We unqualifiedly condemn this practice of the reckless use of firearms. Officers should make all reasonable efforts to apprehend criminals; but this duty does not justify the use of firearms, except in the cases authorized by law. Officers, as well as other persons, should have a true appreciation of the value of a human life. The peremptory instruction to find for the plaintiffs should have been given by the trial court. Reversed and remanded.