Fulmer v. Rider

• Decision Date: 17 June 1982
• Docket Number: No. 1519,1519
• Citation: 635 S.W.2d 875
• Parties: Lois Chandler FULMER, et al., Appellants v. Jerry Don RIDER, et al., Appellees.
• Court: Texas Court of Appeals

Page 875

635 S.W.2d 875

Lois Chandler FULMER, et al., Appellants v. Jerry Don RIDER, et al., Appellees.

No. 1519.

Court of Appeals of Texas, Tyler.

June 17, 1982.

Rehearing Denied July 22, 1982.

J. T. Maroney, Jr., Maroney & Whiteker, Lufkin, M. G. Holt, Holt, Tatum & McCarver, Nacogdoches, Howell E. Stone, Talbert, Giessel & Stone, Houston, Robert A. Fanning, Don Martinson, Fanning, Harper, Wilson, Martinson & Fanning, Dallas, for appellants.

Craig Stripling, Stripling & Sutton, Forrest G. Braselton, Nacogdoches, Jerry L. Calhoon, McDonald, Calhoon & Kolstad, Palestine, for appellees.

McKAY, Justice.

This is an appeal from a judgment in a suit for damages in which the wife and daughters of Vernis Fulmer (Fulmer), deceased, sought to recover for the wrongful death of Fulmer. Fulmer's death occurred during an altercation involving Fulmer and Jerry Don Rider (Rider), during which Fulmer was shot and killed, and Rider and Nancy Hester (Hester) were shot and wounded. Rider and Hester filed separate counterclaims alleging that their bullet wounds were caused by the negligence of Fulmer.

Lois Chandler Fulmer, Individually and as Executor of the Estate of Fulmer, Charlotte Fulmer Murphy, and Sandra Fulmer Davidson are appellants; Rider and Hester are appellees.

Trial was to a jury. ¹ With regard to appellant's claim for damages, the jury failed to find Rider negligent in firing the rifle that resulted in the death of Fulmer.

Regarding Rider's counterclaim, the jury found that Fulmer was negligent (1) in pointing the rifle in the direction of Rider; (2) in discharging the rifle at a time when Rider was in the path of its barrel; and that both acts of negligence were a proximate cause of his injury.

In connection with the counterclaim of Hester, the jury found that Fulmer was negligent (1) in pointing a rifle in the direction of Hester; (2) in discharging a rifle at a time when Hester was in the path of its barrel; and that both these negligent acts proximately caused her injury.

The jury did not find that Fulmer was acting in self-defense when he shot Rider and Hester, as contended by appellants. The jury did find that Rider was acting in self-defense or in Hester's defense in shooting Fulmer, but failed to find that Hester was acting as a principal to Rider in Fulmer's shooting.

On January 1, 1979, Fulmer hired appellees Rider and Hester to manage the Clayton House Apartments. Their duties were to collect rent and keep track of the apartment units that were available for rental. In return, appellees were to receive a rent-free apartment.

On July 25, 1979, Hester called Mrs. Fulmer and told her she had collected some rent money that needed to be picked up. On that same day Fulmer appeared at the apartment occupied by appellees. Fulmer came in through the back door into the kitchen. Hester asked Fulmer if he wanted a Coke and prepared one for him. Fulmer then sat down at one end of the dining room table. Rider was at the other end of the dining room table and Hester was sitting at the table between Fulmer and Rider.

At the point in time when Fulmer and appellees were seated at the dining room table, Rider's AR-15 rifle was leaned against a desk in the dining room area. The rifle was equidistant to Fulmer and Rider. This rifle had rounds in it, including a bullet in the chamber. A purse belonging to Hester was on the table and it contained a .38 pistol.

Fulmer and Hester initially discussed the rental money that he was there to pick up. Hester was chastised by Fulmer for having taken two fifty dollar deposits on two rental units when the deposit should have been one hundred dollars per apartment.

Fulmer then asked Rider when appellees would be ready to move back to the apartment unit which they had earlier vacated because of flooding in the unit. Rider pointed out to Fulmer that the initial lease between appellees and Fulmer had expired, and that they disagreed with Fulmer about a few of their job requirements. Fulmer responded to Rider that appellees were like everyone else who worked for Fulmer because they wanted something for nothing.

Hester told Fulmer that he (Fulmer) was not well known for returning rental deposits; that he wouldn't make adequate repairs to the tenants' apartments; and that he refused to allow appellees to rent to blacks. Hester asked Fulmer whether he would help with the expenses that they would incur in moving because of the flood. Fulmer said "hell no" and added that he didn't take them to raise and share their expenses. After hearing Fulmer's response, Hester said to Rider, "let's move" and then stood up and began walking down the hall to her bedroom.

While proceeding to her bedroom, Hester heard Fulmer ask Rider what things were bothering him. Rider responded that there were three problems. First, appellees did not want to assist Fulmer in confiscating tenants' televisions and stereos after they were only two or three days delinquent in their rent. Second, Rider wanted to discontinue the practice of storing confiscated property in one of the two bedrooms located in appellee's apartment. Finally, Rider wanted permission to rent to blacks.

At that point in time, the discussion had become heated insofar as Fulmer was concerned. Fulmer stated that appellees would do things his way or no way at all. Fulmer threatened to give Rider a "good thrashing." When Rider finally refused to renew the lease, Fulmer told him that they had thirty-six (36) hours to move out and that Rider was going to lose his three hundred dollar deposit.

Finally, after Fulmer became loud and aggressive and started cursing, Rider told Fulmer that he would have to leave the apartment unit or Rider would have Hester call the police. Fulmer responded "there ain't nobody going to throw me out of my own G.D. house, I own these S.O.B.'s. There ain't nobody going to do it."

From the back bedroom Hester could not hear all of the conversation between Fulmer and Rider, but she did hear Fulmer say: "Boy, you don't know who you're messing with"; and "Nobody tells me to get out of my own property." She also heard Rider say to Fulmer that if Fulmer didn't leave he was going to have Hester come in and call the police.

Fulmer then turned and reached for the AR-15 rifle. In doing so, he said "I'll kill you first." After Fulmer grabbed the gun, he turned and pointed it at Rider. Fulmer flinched like he expected a recoil from the AR-15. It was on safety. At that time Fulmer had his finger on the trigger.

Fulmer started flipping the gun over looking for a safety. Rider didn't get out of his chair until Fulmer started flipping the gun looking for the safety. Then Rider ran at Fulmer. Fulmer side-stepped Rider and butted him with the gun. This caused Rider to fall to the floor on one knee with his back to Fulmer. Rider turned, went back after Fulmer, and was only a couple of feet away from Fulmer when Fulmer shot him. When the bullet hit Rider, it did not knock him backwards but just turned him a little bit to the side. He continued his forward motion which brought him into contact with Fulmer. Rider fell forward on his knees with his arms around Fulmer's back like a bear hug. Fulmer had the AR-15 rifle down and out in front of him so that Rider couldn't reach him (it). Rider yelled for Hester to come help him and get the gun away from Fulmer. Hester responded by going to the bedroom door, opening it, and taking a couple of steps into the hallway where she stopped. Rider then called again for help while Hester was in the hallway and she moved forward to a location closer to Fulmer and Rider. At that time, Fulmer gave an indication that he had seen Hester come into the hallway and he responded: "I'll kill her, I'll kill her." While saying those words, Hester testified Fulmer was slowly taking the gun in his hands and very slowly moving it around to a point where he had the gun pointed at her. Rider testified "he looked back down and reached the gun around, never aimed at nothing. Just pointed the gun in a direction and fired it." The rifle in Fulmer's hand discharged and hit Hester in the left leg near the upper part of her thigh.

After Fulmer shot Hester, his body relaxed for just a second. Rider got a hold on the barrel of the gun. The two wrestled around for the gun. When Rider wrestled the gun away, he threw Fulmer toward the end of the hallway. At that point, Rider and Fulmer were approximately eight feet apart. Fulmer said, "Son, give me the gun; Son, give me the gun. I can fix this." Hester heard Rider tell Fulmer, "Don't come any closer, just leave." Fulmer said again, "Son, give me the gun; I can fix this." At that point, Hester noticed Fulmer's right hand going up the back side of his leg as if he were going to put his hand in his pocket. Hester screamed at Rider to watch Fulmer's hands. When Rider shifted his eyes off of Fulmer's eyes in order to look and see what Fulmer was doing with his hands, Fulmer ran at Rider and Rider shot him. It was later discovered that Fulmer was carrying a loaded pistol in his right hand pants pocket.

As a result of these circumstances, Fulmer was killed and Rider and Hester suffered bullet wounds that required medical treatment.

We first discuss the question concerning the Dead Man's Statute. By their ninth point, appellants urge that all testimony of appellees Rider and Hester was barred by art. 3716, ² Tex.Rev.Civ.Stat.Ann. (Vernon 1926); and that absent their testimony there was no evidence, or alternatively, insufficient evidence to submit special issues 7 through 18 to the jury. Since Lois Chandler Fulmer brought this suit in her representative capacity as executor of the Estate of Vernis Fulmer, the statute would seem to apply. However, when the testimony of a witness, otherwise incompetent to testify under art. 3716, is taken by deposition or he is called as a witness during trial by the opposite party, and inquiry is initiated about a transaction with the deceased,...