Gallop v. Clark
| Citation | 124 S.E. 145,188 N.C. 186 |
| Decision Date | 17 September 1924 |
| Docket Number | 15. |
| Parties | GALLOP v. CLARK ET AL. |
| Court | United States State Supreme Court of North Carolina |
Appeal from Superior Court, Currituck County; Devin, Judge.
Action by Peter G. Gallop, administrator of Durwood Gallop deceased, against B. Preston Clark and others, associated under the name and style of the Pine Island Club, and St Clair Lewark. From a judgment for plaintiff, defendants other than Lewark appeal. No error.
Evidence held to authorize finding that reckless shooting of a person by one employed by owners of a game preserve to protect birds, on or coming to it, from trespassers, was in the scope of his employment.
The first issue submitted to the jury, with the answer thereto was as follows:
It was alleged in the complaint:
"That on the _____ day of November, 1920, plaintiff's intestate, Durwood Gallop, in company with a companion, was in a boat on the waters of Currituck county, adjacent to property held and claimed by the defendants, other than Lewark, and guarded by the said Lewark, and that, as said Durwood Gallop and his companion approached said property in said boat, the defendant Lewark, the employee and servant of his codefendants, wrongfully and unlawfully undertook to drive away the said Durwood Gallop and his said companion, and in so doing wrongfully and unlawfully shot and mortally wounded the said Gallop, as a result of which he shortly thereafter died."
The defendants all denied said allegation; there was evidence, however, sufficient to support the affirmative of said issue. There was no exception by defendants to the evidence, or to the charge of the court relative to this issue.
The second issue submitted to the jury, with the answer thereto, was as follows:
The plaintiff offered evidence relative to this issue, tending to show the facts as follows:
The defendants, other than Lewark, on Thanksgiving Day, 1920, and for some years prior thereto, were the owners and in possession of "all that tract or parcel of land and improvements thereon bounded and described as follows: On the north by Indian Gap, Beasley's Bay, and the lands of the Currituck Shooting Club; on the east by the Atlantic Ocean; on the south by North Banks, or Bank Woods, and Currituck Sound--and being all of the land, of every nature and description, formerly owned by Josephus Baum, within said boundaries and in said sound, including all marsh land, beach land, islands of marsh and lands covered by water contiguous and adjacent thereto, and islands in said sound." A clubhouse and other facilities for hunting and shooting wild fowl was maintained by the defendants on the said tract of land. The property was used as a game or hunting preserve for the benefit of the defendants and their guests. The defendants, other than Lewark, are associated together and known as the Pine Island Club.
The defendant Lewark was employed by his codefendants as a guard or watchman upon said property. He was required to watch over and guard said property, keeping a lookout for trespassers who might come on the same to hunt or shoot game. He went on duty each year in October, and remained on duty until the last of March of the succeeding year, thus being constantly on duty during the hunting season. The purpose of his employment was to protect the property and especially the wild fowl and other game thereon from trespassers. He often carried a rifle with him, and this fact was known to the superintendent of defendants, the owners of the property.
It is the habit of wild geese and duck, the game which made this property valuable as a hunting preserve, to feed during the winter months on the marsh lands and in the shallow water contiguous and adjacent to the islands in the sound. At nightfall they come in large numbers from the open sound to these marshes and shallow waters, when and where hunters in boats or blinds shoot them as they fly about. Decoys are placed about in the shallow water, and the hunters place themselves at convenient places to shoot the wild geese and duck as they fly toward these decoys. The value of the property as a private game preserve depends largely upon keeping others from shooting the wild geese and duck as they come in at nightfall to these marshes and shallow waters to rest during the night. It was the duty of the defendant Lewark to keep a lookout for trespassers upon these marshes and shallow waters at the close of day, in order that the geese and duck should not be disturbed as they went to their resting place.
During the afternoon of Thanksgiving Day, 1920, having been engaged in picking cotton during the morning, Durwood Gallop and James B. Shannon, both of them farmers, one with a double-barreled and the other with a single-barreled gun, went from their homes across the sound in a boat towards the Pine Island Club property to kill a goose. They rowed their boat north up Great Gap Bay to Arc Cove; they stopped off in the sound about 25 yards from the mainland, behind an island. It was about sundown, but light enough to see. Neither had fired a gun, but they were waiting for the geese to fly over toward the marshes and shallow waters, expecting then to get a shot. While thus waiting for the geese, sitting in their boat with their guns ready to shoot, they saw the defendant Lewark and another guard coming around the marsh in a skiff or small boat. When they first saw Lewark he was 45 or 50 yards away, with a small island between them. As Lewark came around the island, he called to them that he would beat them if they did not leave. Both Gallop and Shannon knew Lewark, and knew that he was employed as a guard on the defendant's property. They turned their boat around, and as they did so Lewark, again calling to them, began to shoot with a rifle. He shot between 15 or 20 times; the fourth shot striking Gallop as he sat in the boat, inflicting the mortal wound. While Lewark was shooting, the boat was on the marsh and near the islands. During the shooting, the boat, as it was being turned around, was at one time pointed toward the club property. After the shooting had ceased, and Durwood Gallop had been mortally wounded, Shannon, his companion, rowed away rapidly. Durwood Gallop died on Sunday morning following Thanksgiving Day; his death being the result of the gunshot wound received when Lewark was shooting at him in the boat. At the time of the shooting, Lewark and Wicker, the guard with him, had gone around the point in the marsh and had stopped in the marsh. They were about 125 yards from Gallop and Shannon.
At the close of plaintiff's evidence the defendants, other than Lewark, moved for a judgment of nonsuit. Motion overruled, and defendants excepted. Thereupon the defendants offered evidence tending to show the facts relative to the second issue as follows:
Lewark was 47 years old at the time of the shooting and had been employed by Dr. Baum, the superintendent of the club, for about 10 years. His duty was to watch the marsh, and, if anybody trespassed, to ask him to leave. If such person did not leave, it was his duty, after making the request, to report the matter to Dr. Baum. He had no authority from Dr. Baum or the defendants to do anything else. He was on duty Thanksgiving Day, 1920, guarding and watching the marsh. Lewark testified that he had no ill will toward Gallop and Shannon, and did not know Gallop, nor did he see them or shoot at any one on that day. Neither Dr Baum, the superintendent, nor any member of the club, authorized Lewark to use or carry a rifle or gun with him while performing his duty as a guard or watchman, although Dr. Baum knew that he sometimes carried a rifle in his boat while on duty, and most of the time carried a gun of some description. A camp on the premises of the defendants was provided for the guards, and Lewark spent the nights at one of these camps. He spent the night of Thanksgiving Day at his camp. No objection was ever made by members of the club to shooting, unless those who did the shooting came upon the marsh or the island. No one was permitted to hunt on the property of the club, except the members and their guests.
At the close of all the evidence, the defendants, other than Lewark, renewed their motion of nonsuit. Motion overruled, and defendants excepted.
The third issue...
To continue reading
Request your trial
-
Dickerson v. Atlantic Refining Co.
...Sawyer v. Gilmers, 189 N.C. 7, 126 S.E. 183, 41 A. L. R. 1184; Cotton v. Fisheries Products Co., 177 N.C. 56, 97 S.E. 712; Gallop v. Clark, 188 N.C. 186, 124 S.E. 145; Cook v. R. R., 128 N.C. 333, 38 S.E. 925; v. R. R., 124 N.C. 83, 32 S.E. 399, 44 L. R. A. 316. "A servant is acting in the ......
-
Parrish v. Boysell Mfg. Co.
...201 N.C. 90, 159 S.E. 446, Martin v. Bus Line, 197 N.C. 720, 150 S.E. 501, Grier v. Grier, 192 N.C. 760, 135 S.E. 852, Gallop v. Clark, 188 N.C. 186, 124 S.E. 145. exhaustive discussion of the subject appears in Stewart v. Lbr. Co., 146 N.C. 47, 59 S.E. 545. See, also, Sawyer v. R. Co., 142......
-
Smith v. Duke University
...1067, 46 L.R.A.,N.S., 199; Bucken v. R. R. Co., 157 N.C. 443, 73 S.E. 137; Gurley v. Power Co., 172 N.C. 690, 90 S.E. 943; Gallop v. Clark, 188 N.C. 186, 124 S.E. 145; Martin v. Bus Line, 197 N.C. 720, 150 S.E. Cole v. Funeral Home, 207 N.C. 271, 176 S.E. 553; Parrott v. Kantor, 216 N.C. 58......
-
Cole v. Atlantic Coast Line R. Co.
...servant in motion, at least to the extent of requiring the question to be submitted to the jury for determination." See Gallop v. Clark, 188 N.C. 186, 124 S.E. 145. in Union Depot Co. v. Londoner, 50 Colo. 22, 114 P. 316, 33 L.R.A. (N.S.) 433, it was held: "A corporation organized for the p......