McCamey v. Wright

• Decision Date: 14 November 1910
• Citation: 132 S.W. 223,96 Ark. 477
• Parties: McCAMEY v. WRIGHT
• Court: Arkansas Supreme Court

132 S.W. 223

96 Ark. 477

McCAMEY v. WRIGHT

Supreme Court of Arkansas

November 14, 1910

Appeal from Pulaski Circuit Court, Second Division; F. Guy Fulk Judge; affirmed.

Affirmed.

Cammack & White, J. A. Comer and J. H. Carmichael, for appellant.

1. After plaintiff by evidence established the facts that deceased at the time of the arrest was well and uninjured and that between that time and his trial he received an injury which resulted in his death, the burden was upon appellees to prove that deceased was injured by some agency over which they had no control. 3 Cyc. 1087; Id. 1104. Instructions 6 and 7 requested by appellant should have been given. 69 Ark. 134.

2. As to the officer's liability for unwarranted insults indignities, cruelty or oppression to the person arrested see 85 Ky. 486; 144 Mass. 365; 7 Blackf. 74; 31 Am. Rep. 626; 42 L. R. A. 423; 55 Ark. 502; 59 Ark. 133; 9 L. R. A. 445.

W. R. F. Payne and W. T. Tucker, for appellee.

1. Where the law governing a case is correctly stated in instructions already given, it is not error to refuse instructions upon the same questions. 90 Ark. 19; 87 Ark. 602.

2. Instructions 6 and 7, requested by appellant, were properly refused. They assume that deceased was in the custody of Rogers continuously from the time of his arrest until he was brought into court the next day. The burden was on plaintiff to show that Rogers had assulted deceased while in his custody, and, until she did so, Rogers was under no duty to explain anything. The issue was, did Rogers commit the assault? The jury's verdict, on conflicting evidence, settles that question in appellee's favor. 73 Ark. 377; 75 Ark. 111; 67 Ark. 339; 65 Ark. 116; Id. 255; 67 Ark. 433; 76 Ark. 326; 46 Ark. 524; 47 Ark. 196.

OPINION

KIRBY, J.

This is an action by appellant as administratrix for damages for the wrongful death of her son and intestate, Louis Hunley, against Ed Wright, constable, and F. C. Rogers, his deputy, it being alleged that such death was caused by the said Rogers unlawfully assaulting and striking said deceased on the head with a pistol.

The answer denied that an assault was committed upon deceased by defendant Rogers. The testimony shows that deceased was on Washington Street in Argenta the night before Christmas, intoxicated to some extent, and that he was arrested by F. C. Rogers for being drunk; that at the time he was uninjured, and went with the officer without resistance; that within ten minutes afterwards he was seen on the street, crying, with blood running down on his shoulder, with a pair of handcuffs on, or one handcuff, and complaining, "He hit me on the head." Shortly afterwards he was taken up the street, and turned over to Mr. Rogers, who claimed he had escaped.

There was a bruise on his head, caused by a blunt instrument that fractured his skull, and from which, after suffering great pain, he died about the middle of March afterward. The evidence was contradictory and conflicting to some extent, and the defendant, Rogers, did not testify in the case.

The court refused to give instructions numbered 6 and 7, requested by plaintiff, which are as follows:

"6. You are instructed that if you find from the evidence that the deceased was unhurt and uninjured when taken into custody by defendant Rogers, and was found to be hurt and injured before his trial on the next day, the defendant must show by a preponderance of the evidence how the deceased was hurt.

"7. If you find from the evidence that the deceased, Louis Hunley, was uninjured when he was taken into custody by defendant Frank Rogers, and you further find that he was injured when brought into court the following day in the custody of Frank Rogers, you will find for the plaintiff, unless you find that deceased, Louis Hunley, was injured by some one else not under control of defendants."

And gave, over plaintiff's objection, defendant's instruction:

"The jury are instructed that, before the plaintiff can recover, they must show by a fair preponderance of the evidence that the injury complained of was wrongfully and unlawfully inflicted by defendant Rogers, and that said injury was the natural, proximate cause of the death of the said Hunley; and if they fail in this, your verdict should be for the defendants."

The jury returned a verdict for the defendants, and plaintiff appealed.

There was no error in giving the instruction asked on the part of the defense. It was approved by this court in this cause on a former appeal. ^[*]

"The presumption is always in...