Barrow v. Barclay

• Decision Date: 30 January 1925
• Docket Number: (No. 1163.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: BARROW v. BARCLAY et al.
• Court: Texas Court of Appeals

269 S.W. 235

BARROW v. BARCLAY et al.

(No. 1163.)^*

Court of Civil Appeals of Texas. Beaumont.

January 30, 1925.

Rehearing Denied February 11, 1925.

Appeal from District Court, Tyler County; J. M. Combs, Judge.

Action by Mrs. Lily Barrow, for herself and as next friend of her two minor children, Ralph and Frank Barrow, against B. A. Barclay, as Sheriff of Tyler County, and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Howth, Adams, O'Fiel & Hart, of Beaumont, for appellant.

J. E. Wheat, Mooney & Smith, and B. C. Fuller, all of Woodville, and Dycus & Shivers, of Port Arthur, for appellees.

HIGHTOWER, C. J.

This suit was brought by Mrs. Lily Barrow, for herself and as next friend of her two minor children, Ralph and Frank Barrow, against B. A. Barclay, in his capacity as sheriff of Tyler county, and the sureties on his official bond, for the recovery of damages, both actual and exemplary, alleged to have been sustained as the result of the unlawful killing by Sheriff Barclay and his deputy, Carl Griffin, of Frank Barrow, who was the husband of Mrs. Lily Barrow and the father of the minor children.

The material allegations of the plaintiff's petition are, in substance, as follows:

That on or about the 23d day of September, 1923, Frank Barrow, the deceased, was engaged in the operation of a still in Tyler county, at which he was unlawfully manufacturing or making whisky or other intoxicating liquor, and that on that date Barclay, as sheriff, and his deputy, Carl Griffin, approached the place where deceased was operating the still, for the purpose and with the intention of arresting the deceased because of his violation of the law in unlawfully manufacturing or making intoxicating liquor; that when the sheriff and his deputy came upon deceased he attempted to evade an arrest by them, and sought to escape by running away from the still; and that when he attempted to so escape the sheriff and his deputy, with a gun or other deadly weapon, intentionally and unlawfully fired upon and so wounded the said Frank Barrow that he shortly thereafter died. It was further alleged that defendant Barclay was guilty of negligence in employing and appointing Carl Griffin as his deputy, for the reason that Griffin was a man who was addicted to the excessive use of intoxicating liquor, and was therefore unfit to be a deputy sheriff, which facts it was alleged were known to Barclay at the time he appointed Griffin as his deputy. Actual damages were prayed in the sum of $15,000, and exemplary damages in the sum of $5,000. This is a sufficient statement of plaintiff's petition for the purposes of this opinion.

Defendants filed a joint answer, containing general demurrer and many special exceptions, none of which are before us, a general denial, and a special plea admitting the killing of Frank Barrow by Carl Griffin, the deputy sheriff, but alleging in that connection that, at the time the deputy shot Barrow, Barrow was making an attempt to procure a deadly weapon with which to shoot and kill the sheriff and his deputy, as they thought and believed at the time of the shooting, and that therefore the killing of Barrow by the deputy was not wrongful, but justifiable or excusable, and that none of the defendants were liable to the plaintiffs in any damages because of the death of Frank Barrow so brought about.

The case was tried with a jury, and verdict and judgment rendered in favor of the defendants, and, after her motion for new trial was overruled, this appeal was in due time prosecuted.

When the case was called for trial in the lower court, plaintiff filed a motion for a change of venue, in which she alleged that she could not reasonably expect to have a fair and impartial trial in Tyler county, for the reason that a large majority of the qualified jurors in the county were the personal acquaintances and friends of Sheriff Barclay and the sureties on his official bond, and for that reason moved the court to change the venue. The motion was overruled, and appellant duly excepted, and has here assigned the action of the court in overruling the motion as one of the reasons why the judgment should be reversed.

In connection with the motion to change the venue, the evidence showed substantially the following:

Sheriff Barclay and a majority of the sureties on his official bond had been for a long time residents of Tyler county, and three of the sureties had theretofore held official positions in the county for several terms, and all of them, including the sheriff, were well acquainted throughout the county, and were popular with the people in general, and had many personal friends among the qualified jurors of the county. It was not shown that there was any prejudice against the deceased, Frank Barrow, nor against Mrs. Lily Barrow, but it was shown that the deceased was not largely acquainted in the county but was only slightly so. The evidence further showed that a number of the jurors, and it might be said a majority of them, when interrogated in that connection, stated that they were personally acquainted with the sheriff and the sureties on his official bond, and many of them, and perhaps a majority of them, stated that they were personal friends to the sheriff, and some of them personal friends to some of the sureties on his official bond, and a few of the jurors, being tested, had doubts as to whether they would be able to render a fair and impartial verdict in the case on account of such acquaintance with and friendship for the defendants. The record reflects that the trial judge was very careful to excuse a juror in each instance where any doubt was expressed by him as to his inability to render a fair and impartial verdict in the case, and the judge did not wait for objections in that connection, but of his own motion each time excused such juror. It is true that some of the jurors who were accepted by both sides in the case without objection stated that they were personally acquainted with and personal friends of at least some of the defendants, but each of such jurors stated, when being tested, that, notwithstanding such acquaintance and personal friendship, he could render a fair and impartial verdict, and would do so. There is no showing in the record that appellant's peremptory challenges were exhausted, and no attempt to show that any juror who sat in the case was disqualified to do so for any reason further than by way of argument that a juror who admitted that he was a personal friend of defendants in the case was an unfair and unqualified juror, and that, therefore, the motion to change the venue ought to have been granted. This matter was, of course, within the discretion of the trial judge, and, unless made to appear that such discretion was abused, this court would not disturb the trial court's action. It could not, of course, be successfully contended by appellant that the showing as made in connection with the motion was a statutory ground for change of venue. It might be further stated in this connection that there is no assignment challenging the jury's verdict on the ground that it is without support in the evidence, or that it is even against a preponderance of the evidence. We have been cited to no authority in this state that supports appellant's contention that it was the duty of the trial court to change the venue in this instance upon the showing made, and appellant's assignment of error in that connection must be overruled.

Appellant's next contention is that the trial court submitted the case to the jury under a general charge, denying appellant's request to submit the case upon special issues. This action was brought under Article 4694 of the Revised Statutes, as amended by the Act of 1913, c. 143 (Vernon's Sayles' Ann. Civ. St. 1914, art. 4694), authorizing a recovery of damages sustained by one in consequence of the wrongful death of another. The charge, so far as complained of, and with the exception of that portion submitting the measure of damages, was as follows:

"This case will be submitted to you on special issues. That is to say, certain questions will be hereinafter propounded to you and your answers to said questions, written upon a separate sheet of paper, will constitute your verdict.

"You are charged that under the law Carl Griffin had a right to arrest the deceased, Frank Barrow, on the occasion in question, and in order to make said arrest he was authorized to use all...