Davis v. Smith

• Decision Date: 01 May 1936
• Parties: DAVIS et al. v. SMITH.
• Court: Kentucky Court of Appeals

94 S.W.2d 20

264 Ky. 20

DAVIS et al. v. SMITH.

Court of Appeals of Kentucky

May 1, 1936

Appeal from Circuit Court, Bell County.

Action by Harold Smith, by his next friend against Willard Davis and others. Judgment for plaintiff, and defendants appeal.

Affirmed.

Robert J. Watson and J. E. Sampson, both of Middlesboro, for appellants.

Golden Lay & Golden, of Pineville, and Richard Priest Dietzman, of Louisville, for appellee.

STITES Justice.

This is an appeal from a judgment of the Bell circuit court based on the verdict of a jury in the gross sum of $6,000 in favor of appellee and against the appellants. There is little disagreement as to the essential facts. The appellee, Harold Smith, who sues by his next friend, was, at the time of the acts herein complained of, a child of four and a half years of age. During the evening of June 11, 1933, Harold was riding in the back seat of an automobile operated by his father, William Smith. Wilson Phipps, a boy of about fourteen, was with him in the back seat, and "Doc" Edwards was with the driver in the front seat. The group had just returned from an expedition up Cumberland Mountain, for the purpose of securing two gallons of moonshine whisky for William Smith, and were proceeding at an orderly rate of speed down Cumberland avenue, in the city of Middlesboro when they encountered the appellants, Willard Davis and P. L Perry, police officers of that city, who at the time were cruising about in a police car. The attention of the officers was directed to the automobile occupied by appellee by the fact that one of its headlights was not burning and it had no tail-light, and they pulled alongside Smith to warn him of his delinquency in these particulars. Recognition of the occupants of each automobile was instant and mutual. Conscious of graver faults than missing lights, Smith accelerated his speed down Cumberland avenue, and thence down Fitzpatrick avenue, with the officers in pursuit. As the chase reached the overhead bridge on Fitzpatrick avenue, the cargo of liquor in the Smith car was "jettisoned," and thereupon the appellant Willard Davis opened fire with his pistol and fired a number of shots at his quarry. In something over a mile farther, the police car overtook and passed the Smith machine and compelled it to stop. It was then discovered that Harold had been seriously wounded by one of the bullets which Davis fired. This action was filed against the two policemen and their bondsmen to recover damages in the sum of $10,000, resulting from the injuries sustained. The jury found a verdict of $3,000 against each of the policemen and their sureties, and the court reduced the judgment against the sureties to the penal amount of $1,000 fixed in each bond.

The case was tried before Judge J. B. Hannah, sitting as special judge of the Bell circuit court. There was no stenographic report of the evidence. On September 29, 1934, Judge Hannah entered an order overruling the appellants' motion for a new trial and giving them until the 10th day of the November term to file a bill of exceptions. Within the time allowed, appellants tendered a narrative bill supported by the affidavits of six bystanders. Judge Gilbert, the regular circuit judge, being doubtful as to his duty in the premises, passed the matter over, and on January 11, 1935, appellee tendered a narrative form bill of exceptions differing from that of the appellants only in that it extended and amplified the testimony of Dr. Charles P. Stacey, who was a witness in the case. With this bill of exceptions was filed an affidavit by Dr. Stacey certifying the correctness of the narration of his evidence. On January 25, 1935, Judge Gilbert entered an order reciting that he was uncertain of his duty in the matter, but filing both bills of exception as a part of the record. He signed neither bill, although, clearly, he should have done so (Civil Code of Practice, § 334). Appellants contend that the bill of exceptions prepared by appellee should not be considered because not filed in time. Appellee, on the other hand, has made a motion in this court to strike the bill of exceptions prepared by appellant on the ground that it has never been signed or approved by the lower court.

It is settled that an unsigned bill of exceptions will not ordinarily be considered, although filed in the record. Brineger v. Louisville & N. R. Co., 72 S.W. 783, 24 Ky.Law Rep. 1973; Louisville Bridge Co. v. Neafus, 110 Ky. 571, 62 S.W. 2, 23 Ky.Law Rep. 183, rehearing denied 63 S.W. 600; Wisconsin Chair Co. v. Columbia Finance & Trust Co., 60 S.W. 717, 22 Ky.Law. Rep. 1374. If the trial judge refuses to permit the filing of the bill or to sign it, it has been held that the proper remedy is to apply to this court for a mandatory order requiring him to do so. Proctor Coal Co. v. Strunk, 89 S.W. 145, 28 Ky.Law Rep. 241. It has been held also that under such circumstances the appellant may prepare a bystanders' bill and bring it to this court and file it as a part of the record. Thompson v. Tyrie, et al., 200 Ky. 741, 255 S.W. 526; Carter Coal Co. v. Love, 173 Ky. 49, 190 S.W. 481. In Striger v. Carter, 190 Ky. 319, 227 S.W. 448, 449, the court said:

"The failure or refusal of the lower court to sign a bill tendered in time will not deprive a litigant of his right of appeal. When the judge refuses to sign the tendered bill, the proper course for counsel to pursue is to prepare a bystanders' bill and have it certified. Commonwealth v. Hourigan, 89 Ky. 305, 12 S.W. 550 . Such a procedure is authorized by a fair construction of the Code provisions relating to this subject. The prevalence of a contrary rule would leave a party remediless when the trial judge refuses to sign any bill."

While these authorities recognize an application to this court for a mandatory order as the better practice, they have likewise considered bills of exception certified by bystanders, though for some reason not signed by the judge. Under the circumstances, therefore, appellee's motion to strike the bill of exceptions is overruled.

Considering next the claim of appellants that the bill of exceptions as tendered by appellee was filed too late (Civil Code of Practice, § 337), it will be observed that the order entered by Judge Gilbert did not actually file appellants' bill of exceptions until January 25, 1935, and that the same order filed the bill theretofore tendered by appellee, different only in the extension of the testimony of Dr. Stacey. Appellee had fifteen days after appellants' bill was filed within which to controvert its statements, and we conclude, therefore, that we...