Modesett v. Emmons

• Decision Date: 30 March 1927
• Docket Number: (No. 933-4723.)
• Parties: MODESETT et al. v. EMMONS et ux.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Supreme Court

292 S.W. 855

MODESETT et al. v. EMMONS et ux.^*

(No. 933-4723.)

Commission of Appeals of Texas, Section A.

March 30, 1927.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Action by Ike Emmons and wife against H. T. Modesett and others. Judgment for plaintiffs was affirmed as to the defendants other than Modesett by the Court of Civil Appeals (286 S. W. 276), and defendants bring error. Reversed and remanded.

Stevens & Stevens and Cole, Cole & O'Connor, all of Houston, for plaintiffs in error.

A. F. Sundermeyer and Ewing Werlein, both of Houston, for defendants in error.

BISHOP, J.

In 1921 H. T. Modesett was the owner of a tract of land in San Jacinto county, Tex., upon which Ike Emmons and his wife were trespassers. They were occupying a small house on the tract. Modesett filed suit against Emmons to recover title and possession of the land, and sued out a writ of sequestration, which was placed in the hands of Turner Ross, sheriff of said county. On December 23, 1921, the sheriff notified Emmons of the issuance of the writ, and on December 31, 1921, placed the writ in the hands of his deputy, Ruge Elmore, with instruction to execute it. Elmore, accompanied by two other deputies and Modesett, went to the house occupied by Emmons and wife for the purpose of executing the writ of sequestration. When they reached the house Emmons was sitting on the front gallery, and his wife was sitting in a chair in the doorway. The deputy Elmore advised them that they had come to execute the writ of sequestration. When an attempt to execute the writ was made, Mrs. Emmons told the officers she did not want her "things moved," and, rising from her chair, she caught hold of a shotgun. When she did this one of the other deputies said, "Look out for that gun," and Elmore shot and seriously wounded her arm. While the testimony of all the witnesses shows that Mrs. Emmons had hold of the gun at the time she was shot, it is conflicting as to the position in which she held it at the time the shot was fired. Emmons and his wife testified that she had only pulled the gun to her, while the deputies testified that she was presenting the gun as if to shoot. One of the deputies testified that just after the shooting and while they were tying up Mrs. Emmons' arm, Mr. Emmons said to either his wife or mother-in-law, who was present, "You see, I told you that would not work." Emmons admitted that something like this was said, but denied that he understood that his wife was going to get the gun. After the shooting Mr. Emmons was put under arrest. Handcuffs were put on him, and he and his wife were carried to Shepard, some 12 miles away, where her wound was treated.

Defendants in error Emmons and wife filed this suit against plaintiffs in error Modesett, Elmore, and Sheriff Ross and his official bondsmen for damages for the injuries inflicted upon Mrs. Emmons by the shooting, and also for damages actual and exemplary for illegal arrest of Emmons. In their petition they alleged that they "were entirely unarmed, and made no effort or attempt to resist" the officers in the performance of their duty in executing the writ of sequestration, but that one of the officers, "unlawfully, maliciously, and with the deliberate intent to injure," shot Mrs. Emmons, and that, though the officers had no warrant of arrest, they, with malice and without probable cause, arrested Emmons and placed handcuffs on him and carried him and his wife to Shepard. Plaintiffs in error answered by general denial, and specially pleaded that the shooting was done in self-defense against an assault made by Mrs. Emmons with a gun. The cause was submitted to the...