Foster v. Emery

• Decision Date: 14 March 1972
• Docket Number: No. 43481,43481
• Citation: 495 P.2d 390
• Parties: Helen FOSTER, Administratrix of the Estate of James Anthony Foster, a Deceased Minor Child, Plaintiff in Error, v. Sampson EMERY, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 390

495 P.2d 390

Helen FOSTER, Administratrix of the Estate of James Anthony Foster, a Deceased Minor Child, Plaintiff in Error, v. Sampson EMERY, Defendant in Error.

No. 43481.

Supreme Court of Oklahoma.

March 14, 1972.

McConnell & Rice, Oklahoma City, for plaintiff in error.

Jake Hunt, Hunt & Thomas, Oklahoma City, for defendant in error.

JACKSON, Justice:

This action was brought for damages for the wrongful death of a 15-year old boy, James Anthony Foster, by his mother, Helen Foster, as administratrix of his estate. After verdict and judgment for defendant, Sampson Emery, plaintiff appeals.

In her brief on appeal plaintiff questions the sufficiency of the evidence to take the case to the jury, and the refusal to give certain requested instructions. We will summarize the evidence before discussing the arguments presented.

It is agreed that plaintiff's decedent, to whom we shall refer as James, was killed by a shot fired by defendant with a pistol; it is further agreed that the shooting happened after an 'incident' at defendant's home on Sunday night, June 4th, about 10 o'clock P.M. There is no suggestion in the pleadings that defendant actually intended to kill James, or to shoot him, and the record shows that no criminal charges were filed against him. Defendant's conduct was described in the pleadings as wrongful, unlawful, negligent and careless, but not as willful.

As to the details of what happened, the evidence is in conflict. There were material conflicts between the account given by defendant to police at the scene a few minutes after the shooting, his later testimony on deposition, and the oral testimony he gave at the trial. There were similar material conflicts between a statement given to the police the day after the shooting by M, plaintiff's principal witness, a 16-year old boy who was with James, and the oral testimony of M given at the trial. The conflicts were fully and completely exposed to the jury. The resolution of such conflicts, and the question of the credibility of witnesses, are of course matters peculiarly for jury determination. Since by their general verdict the jury resolved these conflicts in defendant's favor, all conflicts have been resolved in defendant's favor in the following summary.

Defendant, for many years a science instructor in the Oklahoma City Public Schools, lived with his wife and three daughters in a residential section of Oklahoma City. The daughters were 18, 15 and 13 years of age. To earn extra money defendant worked five nights a week, from 6:30 p.m. to 9:30 P.M., instructing in a private institution. For this reason he was not at home with his wife and daughters during those hours on week nights.

Beginning about a month before the shooting, defendant's family was bothered by prowlers and window-peeping incidents. On one occasion the intruder spoke to the 15-year old daughter through the partially open bathroom window, and she ran frightened into her parents' bedroom. What the intruder actually said to the daughter on that occasion was not permitted to go to the jury. On another occasion, the defendant found two 'gallon cans' against the wall under the window. The first incident happened early in May, and although the intruder had fled when defendant got outside, he fired some shots into the air 'to scare the man away so he wouldn't come back'. The last prior incident had happened the night before the shooting of James. Defendant testified that he was nervous and scared 'about a man being around my house'.

On Sunday night, June 4th, a little after 10 o'clock P.M., defendant was in the den of his home watching television, when he heard his dog barking and 'cutting up'. After telling his wife to call the police he took his pistol and went outside. He saw someone standing at a bedroom window, 'facing the window and close to the window'. Defendant shouted 'hey' and the intruder ran through a hedge between defendant's premises and the house next door, out of defendant's field of vision. Defendant fired his gun two or three times 'in the air'. He brought his arm 'up like this' and finally agreed on cross examination that the gun 'might have been at any angle' while he was firing. Defendant went back into the house and asked his wife if she had called the police; she told him she had. He went back outside and saw someone 'bending over' in the back yard of the house next door. It was James who died of the effects of a gun shot would later that evening in a hospital.

Two police officers responded to the call reporting the prowler. While they were on their way to defendant's residence, they were notified, via radio, that a shooting incident had occurred there. When they arrived about 12 minutes after the first call, they found defendant 'extremely distraught', 'lying prostrate in the front yard', and 'from a layman's point of view in shock'. Their conversation with him, upon which a part of their report was based, was 'rather sketchy because of his condition'. Defendant spent nine days in the hospital after the shooting incident.

The officers also talked with James, who was still alive and conscious, but the details of the conversation were not permitted to go to the jury.

On the night of the shooting, M and James had been watching television in James' home about a block from defendant's residence. Late in the evening M decided to go home, and James accompanied him part of the way 'so they could talk' They took a short-cut through a back alley and some of the back yards, going in the general direction of defendant's home. They stopped at an apple tree and pulled and ate some apples. James started to 'pulling' at M to go. He wanted M to go with him 'over to Mr. Emery's' 'so they could peep in the window'. M refused to do so; James then left and 'walked toward the Emery home'. Shortly thereafter M heard some shots and 'panicked and ran'.

In his instructions to the jury, the trial judge defined the term 'trespasser' and told the jury that as against a trespasser, a land owner must refrain 'from intentional harm, from willful and wanton injury'. There was no objection to this instruction, and it is not questioned in the briefs. For this reason, we think it may have escaped the attention of the Court of Appeals. Most of the rest of the instructions were those ordinarily given in a negligence action.

In her first proposition on appeal, plaintiff argues that the court erred in failing to direct a verdict for plaintiff at the close of all of the evidence.

We are unable to agree. We have noted that there were conflicts in the evidence requiring jury determination. Also, the court's instructions in effect left to the jury the question of whether plaintiff's decedent occupied the status of one to whom defendant owed an affirmative duty to exercise ordinary care, or was a trespasser, to whom the duty was only to refrain from intentional, willful or wanton injury. We think the evidence justifies a jury conclusion that James was a trespasser, and that the applicable test of defendant's liability was whether his conduct amounted to intentional harm or willful or wanton injury.

As we have seen, there was no allegation or evidence that defendant actually intended to shoot or kill James, or anyone else. The precise issue thus becomes whether defendant was guilty of 'wantonness' or 'wanton conduct' proximately causing James' death.

It is said that strictly speaking, wantonness and negligence are mutually exclusive and incompatible terms, 57 Am.Jur.2d Negligence, Sec. 103, and that mere carelessness or inadvertence may constitute negligence whereas wantonness is essentially a state of mind, 65 C.J.S. Negligence § 9(1) (b). Nevertheless, wanton conduct is so inextricably connected or interwoven with the law of negligence as to be incapable of separate treatment as a distinct tort. 57 Am.Jur.2d Negligence, Sec. 103.

Wanton conduct has been said to be such conduct as exhibits a conscious indifference to consequences in circumstances where probability of harm to another within the circumference of the conduct is reasonably apparent, although harm to another is not intended, but only that the act is so unreasonable and dangerous that the actor either knows or should know that there is an Eminent likelihood of harm. It has also been described as conduct which manifests a disposition to perversity, and it must be under such surrounding circumstances and conditions that the actor must know that It will...