Alexander v. Jones

• Decision Date: 16 May 1952
• Citation: 249 S.W.2d 35
• Parties: ALEXANDER v. JONES. MORGAN v. JONES. DALE v. JONES.
• Court: United States State Supreme Court — District of Kentucky

Page 35

249 S.W.2d 35

ALEXANDER v. JONES.

MORGAN v. JONES.

DALE v. JONES.

Court of Appeals of Kentucky.

May 16, 1952.

John E. Richardson, Brents Dickinson, Jr., Glasgow, for appellants.

Terry L. Hatchett, Glasgow, for appellee.

COMBS, Justice.

Appellants, Charles Alexander, Jr. and Robert L. Morgan, filed separate suits against appellee for assault and battery and false arrest. H. A. Dale filed a companion suit for assault with a deadly weapon and false arrest. Upon trial of the consolidated cases, the jury returned a verdict for appellee. Appellants assign 16 grounds for reversal.

A summary of the facts is necessary. On the night on November 14, 1948, Charles Alexander, Jr., accompanied by three companions--Harold Dale, Robert Lee Morgan, both of whom are appellants here, and a youth by the name of Vernon Landers--was driving Alexander's father's 1939 model Chevrolet 1 1/2 ton truck. The truck had been damaged in a wreck and was used mainly by the senior Alexander to haul slop and whey to his hogs. Attached to the flat bed of the truck and held in place by chains was a tank, referred to in the testimony as a 'whey' tank. At that time Charles Alexander was 15 years old; Robert Lee Morgan was 17; Vernon Landers was 17, and Harold Dale was 21. The boys apparently drove aimlessly about the countryside. They had in their possession two shotguns which they fired at random when the mood struck them. About 10 p. m. they stopped the truck on the side of the county road near an old store building owned by appellee. According to the appellants, one wheel of the truck ran into a ditch. They first attempted to drive the truck out of the ditch under its own power but were unable to do so. Under the impression the occupants of another truck were coming to assist them, they then removed the rear chain from the whey tank for the purpose of using the chain to attach the stalled truck to the other truck so that it could be pulled from the ditch. The other truck did not come to their rescue and they then commenced to hunt for stones and other objects to place under the wheels of their truck. While thus engaged appellee fired four shots at them. The shots, two from a shotgun and two from a pistol, were fired without notice or warning of any kind and before any of the boys had knowledge of the presence of appellee.

Morgan and Alexander were wounded. The wound of Morgan was superficial, but Alexander was permanently blinded in one eye by one of the pellets from the shotgun. During the shooting, Alexander was sitting under the wheel of the truck; Dale, who had been standing nearby, took refuge in the cab; Morgan dropped a piece of timber he was carrying toward the truck and ran behind the vehicle; Landers, who was carrying rocks to place under the wheels, escaped through a fence. They had not molested appellee's property, and at the time of the shooting were on the highway right of way. One of their shotguns was under the driver's seat and the other had been placed on the ground beside the truck.

After the shooting, appellee forced Alexander, Dale and Morgan, at gun point, to accompany him to the home of one Bernice Clark. He ignored Alexander's plea to be taken to a doctor or to his home, and forced the boy to walk back to the scene of the shooting, ostensibly to show Clark what the appellants had done, although it does not appear that he was able to show Clark anything relevant to the incident. Alexander then was taken home by Clark. The appellee had the other boys accompany him back to his home where he kept them until Alexander's father appeared on the scene.

According to appellee, he heard two shots at about 7:30 that night when he went to bed; he thought they came from the direction of Bernice Clark's store; he was awakened about 10 o'clock by noises at or near his storehouse. The storehouse was approximately 175 yards from the residence. He got up, went out on the porch, and then decided he would ignore the noises, but he heard a rock hit the storehouse and he put on his trousers and went down there. He took his shotgun and pistol with him. From his house he followed a cow path to a point about 20 steps from the fence on the side of the road opposite the storehouse. He saw the truck on the road in front of the storehouse, but at first did not see the appellants. Shortly thereafter, he saw one person run behind the storehouse and two other persons walking toward him. One of them had something in his hand. He felt like he was in 'right smart danger,' and that they might shoot him. He fired two shots from his shotgun and two shots from his pistol into the air over their heads. He did not recognize any one until after he had fired the four shots and Alexander said he...