Loreno v. Ross

• Decision Date: 12 March 1931
• Docket Number: 6 Div. 473.
• Citation: Loreno v. Ross, 222 Ala. 567, 133 So. 251 (Ala. 1931)
• Parties: LORENO v. ROSS.
• Court: Alabama Supreme Court

133 So. 251

222 Ala. 567

LORENO v. ROSS.

6 Div. 473.

Supreme Court of Alabama

March 12, 1931

Rehearing Denied April 9, 1931.

Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.

Action under homicide act by Phillip Ross against Ben Loreno. From a judgment for plaintiff, defendant appeals.

Affirmed.

Wilkinson & Burton, of Birmingham, for appellant.

Altman & Koenig, of Birmingham, for appellee.

BROWN J.

This is an action by the plaintiff against the defendant for wrongfully causing the death of plaintiff's minor son, a boy about seventeen years of age. Code 1923, § 5695.

The plaintiff and the defendant are brothers-in-law, and the evidence goes to show that on the occasion of the boy's injury, the families of the two had been to church, going in the plaintiff's automobile, and after leaving the church had gone to the house of a relative, and were returning to defendant's home in the automobile which was stopped a short distance from defendant's home to allow the defendant and the members of his family to disembark. The evidence offered by the plaintiff tended to show that after defendant and the members of his family had gotten out of the car, the defendant took from his inside coat pocket a pistol with his left hand and, in transferring it from his left to his right hand, the pistol was discharged, inflicting on the boy a mortal wound which caused his death.

The defendant's testimony goes to show that he had the pistol-a thirty-two special six-shooter, six-inch barrel loaded in all of its chambers-in the inside pocket of his coat with the barrel extending downward, leaving the butt or grip end out of the pocket, and in stooping to get out of the automobile the pistol fell from the pocket, and when it hit the running board of the car or the ground it was discharged inflicting the wound causing the death of plaintiff's son.

The law imposes on persons carrying or handling firearms a high degree of care to avoid injury to others, and if injury results from the negligent discharge of such firearm, though accidental in the sense that it was not intentional, the person causing such injury is liable therefor. 20 R. C. L 52, § 48; 40 Cyc. 872; Bahel v. Manning, 112 Mich. 24, 70 N.W. 327, 36 L. R. A. 523, 67 Am. St. Rep. 381; Judd v. Ballard, 66 Vt. 668, 30 A. 96; Hankins v. Watkins, 77 Hun, 360, 28 N.Y.S. 867; Manning v. Jones, 95 Ark. 359, 129 S.W. 791; Seltzer v. Saxton, 71 Ill.App. 229; Sullivan v. Creed, 2 Brit. Rul. Cas. 181, note; 1 Thompson on Negligence, § 780; Rudd v. Byrnes, 156 Cal. 636, 105 P. 957, 26 L. R. A. (N. S.) 134, 20 Ann. Cas. note 126; Winans v. Randolph, 169 Pa. 606, 32 A. 622.

There was an absence of evidence showing or tending to show that the defendant intentionally shot Ross, or that he had any reason to apprehend an attack from the deceased or any member of his family. On the contrary, the evidence shows that the two families were on most friendly terms. Therefore, testimony going to show the occasion for defendant carrying the pistol in his pocket, and that defendant's "place had been held up," was not material to the only issues in the case-whether or not the defendant was guilty of negligence in handling the pistol or in allowing it to fall from his pocket.

If it should be conceded that the fact that defendant's place had been previously held up, and that this justified him in carrying the pistol concealed on his person at his place of business, this was no excuse for carrying it on the occasion in question. Chatteaux v. State, 52 Ala. 388.

The evidence being wholly immaterial, the court cannot be put in error for entertaining a motion to exclude, though it be conceded that the plaintiff waived his right to have it excluded by failing to object thereto. The court had the right to exclude the evidence ex mero motu, and the granting or refusing of plaintiff's motion was a matter addressed to the court's sound discretion.

The objection of defendant's counsel evoking the order of the court for counsel "to keep quiet," complained of in the fortieth assignment of error, was made during the cross-examination of the defendant, who had testified on his direct examination that the pistol had a six-inch barrel, and had, just immediately before the question to which the objection was made, stated: "The pistol never showed up at all. I don't think it had a six inch barrel." The form of the objection, in these circumstances, might well have been construed as a suggestion to put the witness on...