Benton v. Kentucky Bankers' Ass'n

• Citation: 211 Ky. 554,277 S.W. 858
• Parties: BENTON v. KENTUCKY BANKERS' ASS'N ET AL.
• Decision Date: 01 December 1925
• Court: Court of Appeals of Kentucky

277 S.W. 858

211 Ky. 554

BENTON v. KENTUCKY BANKERS' ASS'N ET AL.

Court of Appeals of Kentucky.

December 1, 1925

Appeal from Circuit Court, Perry County.

Action by Leonard Benton and others against the Kentucky Bankers' Association and others. From the judgment, named plaintiff appeals. Reversed and remanded.

Willis W. Reeves, of Hazard, for appellant.

Trabue Doolan, Helm & Helm, of Louisville, for appellee Kentucky Bankers' Ass'n.

Cope &amp Cope, of Jackson, for appellees Miller and others.

Wootton Smith & Wooton, of Hazard, for appellee Deaton.

A. H Patton, of Jackson, for appellee Jennings.

Duff & Eversole, of Hazard, for appellee Deaton.

McCANDLESS J.

The Bank of Vico, in Perry county, was robbed on the 27th day of March, 1924. The State Bankers' Association offers a standing reward of $1,000 for the apprehension and conviction of every person committing that offense in this state. In this instance the robbed bank offered an additional reward of $500 for the apprehension and conviction of the perpetrators. Lawrence Harp and Dock Harp were indicted and convicted on this charge in the Perry circuit court, and a number of persons sought to recover the rewards, in a suit brought for that purpose. Prior to the filing of this suit, the bank officials had paid $500 (the amount offered by it) to J. E. Miller, Wm. Haddicks, and James Deaton. The Bankers' Association filed an interpleader, alleging that the reward was claimed by several persons, and asking permission to pay the $2,000 offered by it into court to be paid to whomsoever the court should adjudge. The issues were joined and the law and facts submitted to the court, which confirmed the payment of the $500 to Miller, Haddicks, and Deaton and awarded to them $1,250 of the amount paid by the Bankers' Association. He also awarded $500 to Allie Deaton and $250 to D. B. Deaton and refused the claims of Leonard Benton, Fred Jennings, and Nelson Baxter. Leonard Benton appeals. The appellees appear satisfied and no cross-appeal is prayed.

The facts are: On the evening of the 28th, the president of the robbed bank, Jesse Morgan, who lives at Hazard, learned of the robbery. He at once called police headquarters at Jackson over the telephone and gave information of the robbery and of the reward and asked to have all the officers on the lookout for the robbers if they should pass through Breathitt county. Shortly after noon of the following day, Morgan learned that the Harp boys were implicated in the robbery, and that one of them had been seen on a railroad train the night before. At that time the telephone lines of the railroad company were the only ones in working order, and he had this information sent up and down the line.

Leonard Benton was a conductor on a north-bound freight train leaving Hazard about 1 p. m. on the 29th. He had heard of the robbery, and of the reward, and had a description of the men and was looking for them. Defective air brakes caused the train to stop at a small station, and on walking to the place of trouble he passed a number of parties along the side of the train who had been stealing a ride. Two of these attracted his attention, and after fixing the brakes he walked to the station and gave the agent this information and told him to call the next station, Chavies, and have officers apprehend the suspects upon the train's arrival. This agent conveyed the information to the agent at Chavies, and he to a constable of Perry county, Allie Deaton. The train slowed down, but did not stop, at Chavies; however Deaton and some other parties he had with him boarded the train and ejected several, not including the robbers, from it. Deaton continued the search on the moving train, and in climbing upon a car encountered them, whereupon they presented their pistols and made him enter the car, threatened to kill him, but later relented, gave him $45, and permitted him to alight from the moving train upon his solemn assurance that he would not betray them. The train was a long one, and Benton, who was in the caboose, did not come in contact with the officers, though he saw Deaton near the track as the caboose passed him about a mile from the station. Deaton ran back to Chavies and telephoned up the road to the various stations that the robbers were on the train and to be on the lookout for them. He also followed on the next train.

Altro, in Breathitt county, is a meeting point for several trains, and this train took the siding there. At this place Benton inquired of his head brakeman, Racter, if the two parties were still on the train, and on being answered in the affirmative, the two located them, and Racter observed a roll of bills upon one of them. He reported this to Benton, who went up to the station and called the chief dispatcher at Ravenna and asked him to have some officers come down and arrest them. He also asked permission to hold the train until the south-bound passenger train No. 3 arrived, which was granted.

Allie Deaton also telegraphed to the First National Bank at Jackson, and the cashier of that institution notified the sheriff of Breathitt county, Mr. Blair, of all these facts, and Blair testifies that he informed his deputy, James Deaton, and instructed him to look out for the robbers. James Deaton denies this, but admits that he was expecting the robbers to come in on the train at Jackson and was down at the depot looking for them. J. E. Miller, chief of police of Jackson, and Wm. Haddicks, were also at the depot, and shortly before the arrival of the south-bound passenger train, at Miller's suggestion they decided to go down on it and see if they could apprehend the robbers. They went to Altro and were met by Benton, who together with Jennings and Racter had the suspects under surveillance. Benton asked if they were the officers and, upon being informed that they were, told them of the location of the robbers. According to his statement, he went with Haddicks on one side of the train directly to one of the suspects, and though unarmed was present at the time of the arrest; the other robber being arrested by Miller on the opposite side of the train. Benton then telephoned the dispatcher and procured permission to carry the officers and prisoners to Jackson, which was done. He also attended their trial and claims that he was ready to assist in their prosecution. The defendants, however, pleaded guilty.

It is claimed by the three men from Jackson that they knew nothing of Benton; that upon their arrival at Altro they immediately went to the suspected persons and arrested them without any assistance from any one; deny that Benton had anything to do with it or that they received any information from Allie Deaton. They carried the prisoners to Jackson that night, and on the following day took them to Harlan and delivered them to the custody of the jailer.

Jesse Morgan paid them the $500 offered by the bank, and they were present when the robbers pleaded guilty and accepted 20 years each in the penitentiary. Allie Deaton came to Jackson after they had arrested the defendants and admitted having $45, which the robbers had paid him. They took $16,045 and gave it to Jesse Morgan and took his receipt therefor.

Allie Deaton's evidence is along the line above indicated: He discovered the robbers at Chavies; they got the drop on him, and he had to beg for his life; upon being ejected from the train, he ran back and telegraphed as stated. He followed on the first train, but arrived after the arrest. He showed several parties the $45 and repaid it to the bank.

Fred Jennings was a railroad man "deadheading" his way home to Jackson. Acting in connection with Benton, he had the suspects under surveillance during the time the train was at Altro, something like three hours. Racter, the head brakeman, corroborated the statements of Benton. The railroad agents at the point above named testified as above indicated; the one at Jackson testifying positively that he had advised Miller, Haddicks, and Deaton of Allie Deaton's communication before they left Jackson.

D. B. Deaton was at Altro. He claims to have heard of the robbers about ten minutes before train No. 3 came in, and that he tried to get some one to assist him in arresting them; that he was present at the time of the arrest and assisted one of the officers, covering a robber with a pistol and making him keep his hands up. While there is some corroboration of his statements, the weight of the evidence does not indicate that he had much, if anything, to do with the performance.

On this appeal it is urged: (1) That the court erred in overruling appellant's motion for a jury trial. (2) That J. E Miller, James Deaton, and Allie Deaton are peace officers, and therefore not entitled to share in the reward. (3) That under the pleadings appellant was entitled to judgment pro confesso. (4) That the judgment was flagrantly against...