Howsley v. Gilliam

• Decision Date: 08 January 1975
• Docket Number: No. B--4490,B--4490
• Citation: 517 S.W.2d 531
• Parties: Kay Morris HOWSLEY et al., Petitioners, v. Harvey GILLIAM, Respondent.
• Court: Texas Supreme Court

Page 531

517 S.W.2d 531

Kay Morris HOWSLEY et al., Petitioners, v. Harvey GILLIAM, Respondent.

No. B--4490.

Supreme Court of Texas.

Jan. 8, 1975.

Weldon & Smith, Inc., P.C., Gerald J. Smith, El Paso, for petitioners.

Shafer, Gilliland, Davis, Bunton & McCollum, Inc., Perry Davis, Jr., Odessa, for respondent.

SAM D. JOHNSON, Justice.

This is a suit for wrongful death brought by the surviving parents and the estate of Robert C. Howsley, who was shot and killed while removing a battery from respondent Dr. Harvey Gilliam's automobile. The trial court granted summary judgment for Gilliam and the court of civil appeals affirmed. 503 S.W.2d 628. We reverse.

It is undisputed that on October 26, 1971 at approximately 11:00 p.m. Robert Howsley, who was eighteen years of age, was engaged in attempting to steal a battery from Dr. Gilliam's car. The car was parked in the driveway of Dr. Gilliam's home. Harlan Gilliam, Dr. Gilliam's minor son, heard a noise in the front yard, looked out and saw someone attempting to open the hood of his father's car. He informed his father of what he had seen. Dr. Gilliam obtained a .22 rifle from a closet and went upstairs to his son's room to observe from a window. Dr. Gilliam's position at the window was approximately thirty feet from the event he was observing.

Though it was dark, Dr. Gilliam was able to perceive the shadowy figure of a person bent over the engine compartment of his automobile. He saw this person lift the battery out of the car, set it down in front of the car, and close the hood. At this time Dr. Gilliam decided to fire a warning shot at the intruder's feet in order to apprehend him and to keep him from running away. The rifle shot, however, which traveled the approximate thirty-foot distance, struck Howsley in the head, killing him instantly.

The trial court granted summary judgment for defendant Gilliam on the ground that Article 1222, Vernon's Texas Penal Code Annotated (hereinafter cited as Article 1222), exonerated Gilliam as a matter of law for civil liability for the shooting. The court of civil appeals affirmed, holding that establishment of the defense of justifiable homicide under Article 1222 precluded the recovery of damages under the wrongful death statute. Article 1222 provided:

'Homicide is justifiable when inflicted for the purpose of preventing murder, rape, robbery, maiming, disfiguring, castration, arson, burglary and Theft at night, or when inflicted upon a person or persons who are found armed with deadly weapons and in disguise in the night time on premises not his or their own, whether the homicide be committed by the party about to be injured or by another in his behalf, when the killing takes place under the following circumstances:

'8. In cases of burglary and theft by night, the homicide is justifiable at any time while the offender is in the building or at the place where the theft is committed, or is within reach of gunshot from such place or building.' (Emphasis added.)

The issue presented to this court is whether Article 1222 provides, in a civil case, exoneration as a matter of law for a killing which we assume would otherwise be actionable. We hold it does not.

It is well established that the mere fact the Legislature adopts a criminal statute does not mean this court must accept it as a standard for civil liability. Parrott v. Garcia, 436 S.W.2d 897, 899 (Tex.1969); Rudes v. Gottschalk, 159 Tex. 552, 324 S.W.2d 201 (1959). See 2 Harper & James, The Law of Torts §§ 17.5, 17.6 (1956); Restatement (Second) of Tort §§ 286--288B (1965); Thayer, Public Wrong and Private Action, 27 Harv.L.Rev. 317 (1913); Morris, The Role of Criminal Statutes in Negligence Actions, 49 Colum.L.Rev. 21 (1949). In Rudes v. Gottschalk, Supra, Justice Norvell explained the discretion of the court:

'Fundamentally, however, the application of proscriptions contained in criminal statutes as standards for determining tort liability stems from the judicial action of civil courts. The statute here does not expressly provide for the fixing of civil liability in a negligence action. Actions expressly provided for by statute are to be distinguished from actions based upon the doctrine of negligence per se. In the latter type of action, the civil courts may and often do consider acts or omissions as negligent because of criminal regulations against them, although such acts or omissions would not be considered negligent under the ordinarily prudent man test. In the usual negligence per se case, however, we are concerned with alleged conduct which would be considered substandard even in the absence of statute. We adopt the statutory test rather than that of the ordinarily prudent man as the more accurate one to determine negligence because the Legislature, by reason of its organization and investigating processes, is generally in a better position to establish such tests than are the judicial tribunals. But this does not mean that the criminal statute is always accepted as a test of negligence by the civil courts under all circumstances. We have applied tests and standards taken from criminal statutes, even though such provisions are too indefinite for criminal proscriptions, Gann v. Keith, 151 Tex. 626, 253 S.W.2d 413, and even when the statute may be wholly invalid as a criminal regulation because of a failure to comply with a procedural condition precedent. Clinkscales v. Carver, 22 Cal.2d 72, 136 P.2d 777.

'As the power of adopting or rejecting standards rests with the civil courts, we may accept or reject the criminal statute or use such part thereof as may be deemed appropriate for our purposes. Phoenix Refining Co. v. Powell, Tex.Civ.App., 251 S.W.2d 892, wr. ref. n.r.e.; . . .' 324 S.W.2d 201 at 204, 205.

Article 1222 establishes the minimum standard of conduct necessary to relieve one from the burden of criminal prosecution. The statute's purpose is to delineate the exceptional circumstances under which an individual who would otherwise be guilty of criminal homicide is exonerated. If an individual establishes that he is within the ambit of the protection afforded by the statute, he is not, in essence, a wrongdoer under the criminal law.

In the instant case the court of civil appeals apparently adopted the reasoning underlying the theory of negligence per se to arrive at the conclusion that Article 1222 precluded civil liability. Under the negligence per se doctrine, civil law will not condone behavior which does not at least meet the minimum standard for behavior set by penal statutes. Violation of a penal statute will thus result in civil liability as a matter of law. E.g., Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950); Rial v. Curtis, 274 S.W.2d 117 (Tex.Civ.App.--Galveston 1954, writ ref'd n.r.e.). However, it is well established that civil law can require a higher standard of behavior than that established by the criminal law. See, e.g., Prosser, Handbook of the Law of Torts 203, 204 (4th Ed. 1971); Morris, The Role of Criminal Statutes in Negligence Actions, Supra at 43. Thus, proof that an individual did not violate any penal law would not necessarily preclude civil liability. It follows that simply because one may be statutorily relieved from criminal prosecution does not mean he will be universally exonerated from civil liability when his conduct falls below the minimum standard applicable to the civil law. This has now been expressly recognized by the Legislature by its enactment of Section 9.06 of the Penal Code, Vernon's Texas Codes Annotated:

'The fact that conduct is justified under this chapter does not abolish or impair any remedy for the conduct that is available in a civil suit.' ¹

Dr. Gilliam argues that in any event it is conclusively established in this state that the killing of an individual engaged in theft at night is not actionable as a matter of law. In support of his contention respondent relies upon a series of cases, the first of which is March v. Walker, 48 Tex. 372 (1877). In March suit was instituted by the minor children of the deceased to recover damages for the alleged willful and malicious killing of their father. The defendants alleged that they were acting in self-defense, and that the killing was therefore justifiable homicide. The March court reversed the judgment of the trial court, holding that the plaintiffs had failed to show a wrongful killing since it was done in the justifiable exercise of the right of self-defense. The holding of the court was thus grounded upon the fact that self-defense was conclusively established. In McMurrey Corporation v. Yawn, 143 S.W.2d 664 (Tex.Civ.App.--Texarkana 1940, writ ref'd), the element of self-defense was also present and was likewise considered controlling. In that case there was evidence that the plaintiff's decedent had threatened to kill the defendant several times before the final confrontation, and that on the night of the killing he attempted to carry out his prior threats. The court held that if the defendant was acting in his own self-defense at the time he shot and killed the deceased, the killing would not be wrongful. In other words, if the jury could find that it reasonably appeared to the defendant that he was in danger of death or serious bodily injury, he had the right to defend himself with deadly force. The...