Browning v. Graves

• Decision Date: 02 May 1941
• Docket Number: No. 14230.,14230.
• Citation: Browning v. Graves, 152 S.W.2d 515 (Tex. App. 1941)
• Parties: BROWNING et al. v. GRAVES et al.
• Court: Texas Court of Appeals

152 S.W.2d 515

BROWNING et al. v. GRAVES et al.

No. 14230.

Court of Civil Appeals of Texas. Fort Worth.

May 2, 1941.

Rehearing Denied June 13, 1941.

Appeal from District Court, Wichita County; Irvin J. Vogel, Judge.

Suit by Mrs. Ethel Graves and others against Perry Browning and others, for negligence resulting in death of Percy Graves at hands of prisoners in jail where Percy Graves had been placed after arrest for drunkenness. From judgment for certain plaintiffs, Perry Browning and Sid Johnson appeal.

Judgment affirmed.

John Davenport and W. W. Ballard, both of Wichita Falls, and Rogers & Spurlock and Ardell M. Young, all of Fort Worth, for appellants.

Smoot & Smoot, of Wichita Falls, for appellees.

SPEER, Justice.

This suit was filed in one of the District Courts of Wichita County by Mrs. Ethel Graves, for herself and in behalf of her daughter, Peggy Jean Graves, the surviving wife and minor daughter of Percy Graves, deceased, and J. W. Graves, the father of deceased, against Perry Browning, sheriff of Wichita County, Texas, Public Indemnity Company, a corporation, as surety on the sheriff's official bond, Sid Johnson and H. G. Gill, deputies of Sheriff Browning.

On November 24, 1934, Percy Graves was arrested by deputy Gill for drunkenness at about four o'clock in the morning, and taken to the county jail and delivered to Sid Johnson, the jailer. Johnson placed Graves in what is called "tank" or compartment No. 1, which contained other prisoners, some of whom were alleged to be notorious criminals known to be of a vicious and murderous disposition; that shortly after Graves was so incarcerated he was assaulted by one of the inmates with a "blackjack", alleged to be a deadly weapon, from which assault Graves died. It appears that the jail of Wichita County is a three-story structure and that there are four compartments, each of which has three or four cells, which may be locked and unlocked by the use of a lever on the outside of the compartment; each cell, when unlocked, permits the inmate of that cell to have access to the corridor or "run-around" adjacent thereto. Allegations were made to the effect that the sheriff and his deputies knew or by the exercise of ordinary care should have known of the vicious character of the prisoners contained in tank No. 1, and especially of one prisoner named Ebers; that it was negligence upon the part of the sheriff not to lock such prisoners in separate cells, so that they could not do harm to other prisoners, especially those held temporarily for misdemeanors, as was Graves, the deceased. Further allegations were made that the sheriff and his deputies knew, and by the exercise of ordinary care should have known, that the prisoners in the compartment in which Graves was placed had in their possession deadly weapons, such as "blackjacks", with which they could inflict serious bodily injuries upon each other, and especially the deceased, and that it was negligence for the officers not to discover and remove said deadly weapons from said prisoners. Many other acts of the officers were alleged to constitute negligence, but they were not presented to the jury and need not be mentioned here.

The case was tried to a jury on special issues. The verdict, as reflected by the issues and their answers, was substantially as follows: (1) The prisoners in the tank where Graves was placed were in possession of "blackjacks" at the time he was placed therein; (2) Johnson (the deputy) was negligent in placing Graves in the tank with prisoners possessing blackjacks; (2a) such negligence was a proximate cause of Graves' death; (5) Browning (the sheriff) was negligent in not discovering and removing the blackjacks from the prisoners in the cell in which Graves was placed; (5a) such negligence was a proximate cause of Graves' death; (7) Graves was killed by Ebers (a prisoner) in the jail on November 24, 1934; (8) Johnson (the deputy) was guilty of negligence in placing Graves in the jail tank occupied by Ebers, and (9) such negligence was a proximate cause of the death of Graves. Special issues 10 and 11 found the amount of damages awarded to the wife and daughter, respectively, of the deceased.

Judgment was entered in favor of Mrs. Graves and the daughter for the amount found, against Perry Browning (sheriff), Sid Johnson (deputy) and Public Indemnity Company (surety on the sheriff's bond). No recovery was allowed to J. W. Graves, the father of deceased, nor was recovery allowed to any party against H. G. Gill, the deputy who made the arrest. After motion for new trial was overruled, Perry Browning and Sid Johnson perfected their appeal to this court. Those two will be referred to as appellants, while Mrs. Graves and her daughter will be referred to as appellees.

No error is presented by first and second propositions by appellants. They claim it was not proper for the court to permit certain witnesses, who were inmates of the jail shortly prior to and at the date on which Graves was killed, to testify substantially that during the time they were in jail they were in tank No. 1, and that the prisoners organized a "kangaroo court" for the enforcement of their rules, which they called "sanitary regulations", and that they often tried those persons that were put into the compartment upon a charge of breaking into jail; that the prisoner Ebers was "sheriff" of the court and as such beat up other prisoners; that there were several blackjacks in the compartment, the judge of "court" had one and Ebers had one, which he often carried in his pocket; that others were hidden under bunks and in various places; the witnesses saw the assault by Ebers on Graves, and detailed how he was beaten, undressed by two prisoners, and thrown under the shower in a dying condition. The objections urged to the testimony was upon the grounds that it was hearsay and immaterial. Appellees' pleadings substantially covered the matters mentioned. The testimony was not hearsay, nor was it immaterial to the issues made.

Propositions 3, 4, 5 and 18 assert that an instructed verdict for appellants should have been given. By some of these propositions certain alleged acts of negligence are pointed out, and because there was no testimony offered to support them, it is claimed that the summary charge should have been given. Others go to the issues that were submitted and answered by the jury. It is asserted that before appellees could recover in this case it was necessary for them to prove that appellants knew, or by the exercise of ordinary care should have known, that Graves would be injured if he was placed in said cell. There is evidence in the record tending to show that appellants knew the prisoners fought each other in this compartment, that when this occurred they separated them, placing those apparently to blame in separate cells; the jailer's room was at the bottom of the stairs leading from the prison cells; one could hear from the jailer's room what was going on in the cells when the prisoners became boisterous; that when Graves was knocked in the head the prisoners did call to the jailer and asked him to come up; both appellants testified that they knew the prisoners had some kind of an organization among themselves for the purpose of enforcing the jailer's rules of sanitation. Testimony of other witnesses was that in addition to the jailer's rules they inaugurated many rules of their own; it was shown that the officers often searched the cells and never did fail to find weapons made of hard substances sufficient to inflict serious injuries on a man; that when this killing took place, the jail had not been searched for a week or ten days; it was shown by the testimony that three different deputies had been present at times when the "kangaroo court" was in session; the jailer said he knew that insofar as he was concerned it was dangerous for him to go inside of the cell; he said, in effect, that he would as soon go into a lion's den. One could readily see, perhaps, the danger to which the officer referred. The jailer knew that Ebers was charged with highway robbery in another county and had been brought to Wichita County in chains for safe-keeping. We think these are pertinent circumstances tending to show negligence of the sheriff and his deputies in placing the deceased, charged with a misdemeanor, in the compartment with those prisoners mentioned, especially when deceased was considered a "holdover", who had advised the jailer that he must go to work at eight o'clock, and there was another compartment conveniently situated containing three juveniles then confined in the cells adjacent to the run-around in which no other person was confined. It was said by the jailer that he would have had to go up another flight of stairs to get another place to confine Graves. We also think the testimony sufficient to raise the issue of negligence in the failure of the appellants to discover and remove the weapons then undeniably possessed by the prisoners in the compartment in which deceased was placed. The jury found these acts to be negligence and the proximate cause of Graves' death. The court's definition of proximate cause properly presented the point in this language: "Proximate cause is that cause which in a natural and continuous sequence, unbroken by any new or independent cause, produces an event or injury and without which such injury would not have occurred, and which injury, or a similar one, ought to have been foreseen by a person of ordinary care and prudence, in the light of attending circumstances."

In this connection, appellants argue that it was the imperative duty of appellants under Penal Code Art. 324, to receive and imprison Mr. Graves at the time in question, but it is conceded that it is the duty of the officer to use all reasonable efforts to protect his prisoner from harm while in his custody, but that there is no testimony tending to show that the jailer had any reason to expect...