Love v. Bass

• Decision Date: 18 March 1922
• Parties: LOVE v. BASS ET AL.
• Court: Tennessee Supreme Court

238 S.W. 94

145 Tenn. 522

LOVE v. BASS ET AL.

Supreme Court of Tennessee.

March 18, 1922

Certiorari to Court of Civil Appeals.

Action by Dawn Love against R. P. Bass and others. The judgment for defendants on directed verdict was reversed by the Court of Civil Appeals and the cause remanded for trial, and defendants bring certiorari. Judgment of the Court of Civil Appeals affirmed and cause remanded to the circuit court.

T. Pope Shepherd and C. G. Milligan, both of Chattanooga, for defendants.

GREEN J.

R. K Love met his death while undertaking to bring a load of whisky from Georgia into Chattanooga in an automobile. R. P Bass, who was then sheriff of Hamilton county, and Charles Morrison, who was deputized for the occasion, tried to intercept and arrest Love before he got into the city. During the encounter Love was killed either by Bass or Morrison. Dawn Love, the widow of R. K. Love, has brought this suit against the former sheriff and the surety on his official bond to recover damages for the killing of her husband.

The trial judge directed a verdict in favor of the defendants. The Court of Civil Appeals reversed the judgment of the court below and remanded the case for trial. The defendants have filed a petition for certiorari and the case has been argued in this court.

On the night Love was killed, Morrison obtained information that Clyde Love, brother of deceased, had gone into Georgia in an automobile for the purpose of procuring and bringing back to Chattanooga a load of whisky. Morrison went to the jail and communicated this information to the sheriff. The sheriff after some conversation, deputized Morrison to go with him and the two went a few miles out of the city on the Wauhachie road leading into Georgia for the purpose of apprehending Clyde Love as he returned.

The sheriff and Morrison drove out in a Ford car to a point on Lookout Mountain, to where what is known as the Mountain road and the Wauhachie road fork. They parked their car across the Wauhachie road.

The road goes around the mountain side at this point. There is a wall on either side of it. When the car was parked across the road there was a space of four or five feet between the ends of the car and the adjacent walls.

After waiting for an hour or more, the sheriff and Morrison heard a car coming from Georgia, which they supposed was the Love car. The sheriff and Morrison stationed themselves on either side of the road, the sheriff somewhat in advance of Morrison, both being between their own car and the approaching car. The sheriff and Morrison were both armed with shotguns. As the car from Georgia approached, the sheriff came out into the road and ordered it to halt. Instead of halting, the driver of the car speeded it up and ran it directly at the sheriff. The sheriff jumped out of the way and the driver of the car then ran it at Morrison. Morrison testified for the plaintiff below and the sheriff in his own behalf. Both of them say that the driver of this car speeded up and attempted to run them down when he was called on to halt, and the effect of their testimony is that they had to jump for their lives.

After passing the sheriff, the driver of the car attempted to run between the end of the parked car and the wall of the road. He accomplished this successfully and got by, bending the fender on the parked car and scraping the wall of the road. After getting through this hole the operator of the car apparently lost control of it and ran it into the wall of the road a few yards below the parked car in the direction of Chattanooga, where the car was halted and wrecked. This car was being operated by the deceased, R. L. Love, and contained 60 gallons of whisky in 5-gallon milk cans.

After the whisky car passed the sheriff he fired his gun. After it passed Morrison he fired his gun. The sheriff claims that he shot across the road, not in the direction of the whisky car for the purpose of stopping a car following the whisky car in which Clyde Love, the brother of deceased, and two other men, were riding. Morrison claims that he fired at the wheels of the whisky car and that the load from his gun did not go above the wheels.

After the whisky car ran into the wall and was wrecked, Morrison and the sheriff went down there and found that R. K. Love, who was driving, had been killed, shot in the back with a load of heavy shot. The shot went through the rear curtain of the car, as clearly appears from the proof.

Clyde Love and the parties in the second car denied any connection with the whisky car in front of them, and, after stopping them and examining them, the sheriff told them to go on to town. He and Morrison then took the dead man in their own car and brought him into the city.

Although each of them, as seen, denies firing the shot which killed deceased, we think it fairly obvious from the proof that deceased must have been killed either by Morrison or by the sheriff. Morrison was indicted for this killing, but was tried and acquitted in the criminal court of Hamilton county.

The case was tried below when it was supposed that chapter 124 of the Acts of 1919 was a valid law. This statute made the transportation of three gallons of whisky or more a felony, and the defendants justified on the theory that it was permissible to kill Love to prevent the escape of one who had committed a felony.

Later this act was held unconstitutional by this court in the case of Walters v. State, December term 1920.

There has been much discussion in the case as to the protection afforded the sheriff and Morrison by the said statute subsequently held void. We think, however, these questions are not material in this case.

In undertaking to bring this quantity of whisky along the public road into the city of Chattanooga, the deceased was violating the laws of the state and committing a public offense. The sheriff and his deputy without a warrant had the right to halt deceased and put him under arrest for this offense committed in their presence. Both of them testified that the sheriff ordered deceased to halt, but that, instead of doing so, he increased the speed of his car and drove right at them. The lights were shining on the sheriff and deceased probably knew who he was. That, however, is not material, for a private person would have been justified in arresting deceased under the circumstances. Thompson's-Shannon's Code, § 7002.

Section 6998 of Thompson's-Shannon's Code is as follows:

"When arresting a person, the officer shall inform him of his authority and the cause of the arrest, and exhibit his warrant if he have one, except when he is in the actual commission of the offense, or is pursued immediately after an escape."

Section 7003 of...