Fidelity & Deposit Co. of Maryland v. Commonwealth

• Decision Date: 29 October 1929
• Parties: FIDELITY & DEPOSIT CO. OF MARYLAND et al. v. COMMONWEALTH, for Use of FREER et al.
• Court: Kentucky Court of Appeals

21 S.W.2d 452

231 Ky. 346

FIDELITY & DEPOSIT CO. OF MARYLAND et al. v. COMMONWEALTH, for Use of FREER et al.

Court of Appeals of Kentucky

October 29, 1929

Appeal from Circuit Court, Trigg County.

Action by the Commonwealth, for the use of John Freer and others against the Fidelity & Deposit Company of Maryland and others. From the judgment, defendants appeal, and plaintiffs cross-appeal. Affirmed on cross-appeal; reversed for new trial on direct appeal.

N. W Utley, of Eddyville, John King, of Cadiz, D. P. Smith, of Hopkinsville, and C. C. Molloy, of Kuttawa, for appellants.

C. C Grassham, of Paducah, and J. W. Blue, of Marion, for appellees.

WILLIS J.

One Sunday evening in December, 1926, as the people of Eddyville were gathering at their various places of worship, one Jim Ferguson, with a companion, was driving an automobile rather recklessly about the city. It was known that the sheriff held several misdemeanor warrants for the arrest of Ferguson. He had been arrested on some of them, but had escaped from the custody of the jailer. Earl Moneymaker, a deputy sheriff learned of the presence and conduct of Ferguson, and notified Sam G. Cash, the sheriff, who lived outside of the city, to bring the warrants and to help arrest Ferguson. The sheriff and his son came to town and joined the deputy sheriff and the chief of police of Eddyville in an effort to apprehend the accused. The officers were stationed at the intersection of Franklin and Water streets, a prominent and well-lighted corner. Ferguson soon drove along Franklin street, at its intersection with Water street, and was there called upon by the officers to stop and submit to arrest. He knew the officers, and was aware of their purpose to execute the warrants upon him. Moneymaker stepped out into the intersection and endeavored to stop the car. Ferguson speeded up the car, and, according to the weight of the evidence, tried to run down the deputy sheriff. The latter pulled his pistol and fired four shots at the automobile. The direction of these shots was across Franklin street. The sheriff was then back of the automobile, on the opposite corner from the deputy sheriff, and immediately fired two shots toward the escaping car. The general direction of these shots was along and across Franklin street, upon which the car was speeding away from the officers. The car came to a stop at a point in Franklin street about 80 yards from the intersection with Water street, and there is testimony that two flashes of a pistol were seen issuing from a space between the windshield and curtain, and that reports were heard of two pistol shots fired from Ferguson's car.

A young man named John Freer was walking on the sidewalk about opposite the place where Ferguson's car stopped, and some time during the progress of the shooting he was struck in the abdomen by a stray bullet. He was very seriously injured, and later instituted this action in the Lyon circuit court against the sheriff, the corporate surety on his official bond, and the deputy sheriff, to recover damages in the sum of $54,000. The plaintiff applied for and was granted a change of venue to the Trigg circuit court, where a trial resulted in a verdict for the plaintiff in the sum of $7,000. A judgment was rendered upon the verdict against the sheriff and his surety jointly for the sum of $2,500, the penal amount fixed in the bond, and a further judgment was entered against the sheriff alone for $4,500. The action against the deputy sheriff was dismissed. The sheriff and his surety have prosecuted the present appeal, and the appellee has taken a cross-appeal to test the validity of the statute limiting the liability of the surety to the penal sum designated in the bond.

Appellants complain that (1) the court erred in denying a motion for a directed verdict; (2) in giving and refusing instructions to the jury; (3) in permitting an improper and prejudicial argument on behalf of plaintiff to be made to the jury; and (4) in refusing to set aside the verdict on the ground that it was flagrantly against the evidence.

1. It was the theory of the plaintiff that he was struck by a bullet from the sheriff's pistol, which was fired without justification in an attempt to arrest Ferguson upon a charge of misdemeanor, when he was offering no resistance, except flight. The defense was rested upon two grounds. The sheriff denied that he shot plaintiff, and contended that the injury was inflicted by a shot from Ferguson's car. There is some testimony tending to show that Freer himself first thought he was shot by an occupant of Ferguson's car. But, if the plaintiff was struck by a bullet from the sheriff's pistol, it was nevertheless insisted by him that the shooting was necessary and excusable, because Ferguson had committed a felony in resisting the officers and in attempting to injure the deputy sheriff, which made it lawful to shoot in order to prevent the escape of the felon. There is some testimony that tended to sustain the theory of the plaintiff, which rendered it proper to submit the case to the jury. The conflict in the evidence made it necessary for the jury to determine the issues between the litigants. It is argued that some of the testimony relied upon to produce the conflict in the evidence was vague, incredible, and unconvincing; but it is well settled that the credibility of the witnesses is for the jury and may not be determined by the court. It is not error to deny a request for a directed verdict, when there is any evidence tending to sustain the cause of action alleged by the plaintiff. Mead v. Ashland Steel Co., 125 Ky. 114, 100 S.W. 821, 30 Ky. Law Rep. 1164; Supreme Lodge, K. of P., v. Bradley, 107 S.W. 209, 32 Ky. Law Rep. 743; Terrell v. Southern Ry. Co., 225 Ky. 645, 9 S.W.2d 993; Hobson, Blain & Caldwell on Instructions to Juries, p. 31, § 54; Mylett's Adm'r v. Burnley, 163 Ky. 277, 173 S.W. 759.

2. The court gave the jury five instructions. The first instruction submitted to the jury the plaintiff's theory of the case, and the second merely defined the measure of damages. Instruction No. 5 was a formal one, advising the jury that a verdict might be made by nine or more of them agreeing thereto and signing it. These instructions are not, and could not be, complained of, if the case was to go to the jury at all. Serious criticism is leveled at the third and fourth instructions given by the court. The third instruction told the jury that the verdict should be for the defendants, if it was found from the evidence that the shots were fired in the necessary, or apparently necessary, defense of the deputy sheriff. It is hard to see how that instruction could have prejudiced the defendants. The evidence tended to show that Ferguson had attempted to run down the deputy sheriff, and when the sheriff fired his pistol he could not see that the deputy sheriff was safe. Whilst the sheriff did not specifically claim that he shot to save the deputy, insisting that he had fired to prevent the imminent escape of a felon, yet the court was justified by the evidence in submitting the matter to the jury. The court might very properly omit the instruction, if defendants do not desire it given, since they alone could complain, if that defense was not submitted. But we see no error on the part of the court in presenting to the jury the law to govern them, if the facts should be found as therein outlined, when there was evidence to warrant it.

The fourth instruction reads: "The court says to the jury that it was the duty of the defendant Sam G. Cash, and his deputy, Earl Moneymaker, to arrest Jim Ferguson under the warrants of arrest for misdemeanors which they held, and in doing so, the...