Clark v. Carney

• Decision Date: 02 February 1942
• Parties: CLARK v. CARNEY et al. (two cases).
• Court: Ohio Court of Appeals

42 N.E.2d 938

71 Ohio App. 14

CLARK v. CARNEY et al. (two cases).

Court of Appeals of Ohio, First District, Hamilton.

February 2, 1942

David L. Shannon, of Cincinnati, for Martha Clark adm'x.

Regland Dixon & Murphy, of Cincinnati, for Walter J Carney.

Nichols Wood, Marx & Ginter and Timothy Hogan, all of Cincinnati, for Fidelity & Deposit Co. of Maryland.

ROSS Judge.

Two appeals on questions of law from a judgment of the court of common pleas of Hamilton county are here considered together. The first is an appeal by the defendant, Walter J. Carney; the second, an appeal by Walter J. Carney and the defendant bonding company.

The trial resulted in a joint verdict against the defendant Carney, who is a policeman, and the bonding company of $2,500.

Motions for new trial and judgments non obstante were filed and overruled.

Judgment was rendered against the Bonding Company and Carney for $1,000, the limit of the liability of the defendant company, and for $1,500 and costs against Carney.

The action was instituted by the plaintiff to recover damages for the death of her decedent who was shot by the defendant Carney, when fleeing from arrest in company with three other men.

The evidence of the plaintiff indicates that the decedent in company with three other men attempted to gain entrance to a bakery. Some of these men testified they were only attempting to secure pies and used a stick, with which they knocked the pies off a rack and then drew them from under a locked screen door.

The defendant Carney and other officers were notified of the burglary and ordered by police headquarters to repair to the bakery and apprehend the law violators. In compliance with such orders received by radio, they repaired to the designated place, found the decedent and others gathered about the rear entrance to the bakery, and from the undisputed facts had every reason to believe that these men were violating the statutes of Ohio and committing or attempting to commit a burglary in violation of section 12438, General Code. The men, upon seeing the officers' automobile lights, fled, the officers then and there gave chase when the men ran, finally cornered them in an alley, and only shot, when, and after repeated orders to surrender, the men still fled, even after shots were fired over their heads. The defendant Carney finally directed his fire at the criminals and the decedent was shot and another man shot in the hand. One man escaped and was never apprehended. So it is apparent that had the officers not used the means adopted, all would have escaped.

It is the claim of the plaintiff that the police officer used excessive force.

The action was predicated upon section 10509-166, General Code, the so-called wrongful death statute.

If the act of the defendant...