Pearson v. Taylor, 9134

• Decision Date: 22 December 1959
• Docket Number: No. 9134,9134
• Citation: 116 So.2d 833
• Parties: Luther W. PEARSON, Plaintiff-Appellant, v. Alonzo TAYLOR et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 833

116 So.2d 833

Luther W. PEARSON, Plaintiff-Appellant, v. Alonzo TAYLOR et al., Defendants-Appellees.

No. 9134.

Court of Appeal of Louisiana, Second Circuit.

Dec. 22, 1959.

George J. Ginsberg, Alexandria, for appellant.

Cameron C. Minard, Columbia, Gravel, Humphries, Sheffield & Fuhrer, Alexandria, for appellees.

AYRES, Judge.

This is an action in tort instituted by Luther W. Pearson against Alonzo Taylor, deputy sheriff, and Doug Floyd, sheriff of LaSalle Parish, Louisiana, for personal injuries arising out of his having been shot February 24, 1952. Taylor admitted the shooting, but alleged that he acted in self-defense. Sheriff Floyd was made a party to the proceeding because of his official position and based upon the proposition that the sheriff is responsible for the negligence of his deputy in the performance of his official duty.

Plaintiff's position is that the assault committed upon him was wanton and deliberate, without cause, justification, reason or excuse, having been committed while he was attempting to surrender and submit to an arrest.

Under similar allegations we held, in a companion case, Jackson v. Steen, La.App., 92 So.2d 280, under the legal injunction of accepting as true all well-pleaded facts on the trial of an exception of no cause of action, that a cause of action was stated. The issue now presented is primarily one of fact as to whether plaintiff's allegations are supported by adequate and sufficient proof, such proof as would warrant and justify a judgment in plaintiff's favor. The trial court held that defendant Taylor's action was in the performance of an official duty as deputy sheriff and in self-defense of himself, as well as in defense of fellow officers, and thereby rejected plaintiff's demands. From the judgment thus rendered and signed, plaintiff prosecutes this appeal.

A statement of the facts is deemed appropriate for a comprehension of the issues involved. On trial of the case, the plaintiff produced only himself and Martin L. Jackson, an accomplice in the offense for which their apprehension was sought and for which they claim it was their intent and purpose to surrender and submit to an arrest by the officers. Plaintiff admitted that near midnight he and Jackson had gone to the residence of Trooper Ulis Floyd and that he shot and killed, not only Floyd, but, his son, Donald Floyd; that he was charged with murder and, on trial, convicted of manslaughter and sentenced to and served a term in the State penitentiary. Plaintiff further admitted that, after the shooting, he and Jackson repaired to the residence of a Mrs. Hinton, under the mistaken belief that it was the residence of Carey Pritchard who lived nearby and to whose residence they immediately thereafter went. Pritchard was told that plaintiff had shot Ulis Floyd. Upon pritchard's request, Pearson and Jackson left Pritchard's residence and walked to the rear, near a strip of woods, where they remained for some 30 minutes.

In the meantime, Sheriff Floyd, a brother of the deceased, Ulis Floyd, and other officers stopped at the Pritchard residence and were informed that Jackson and Pearson had been there. A search in the immediate vicinity proving futile, the officers left and thereafter Jackson and Pearson returned, knocking on the rear door of the Pritchard residence. Pritchard denied them admittance and, on being informed they desired to telephone the officers of their intention to surrender, he advised them he would make the call and for them to await the officers' arrival on the front porch. While Pritchard was telephoning, Pearson and Jackson were seen crossing the highway, at a distance of 100 to 200 yards away, and proceeding in a direction opposite the courthouse. During their maneuvers, Jackson and Pearson went to the residence of a Mrs. Mary S. Buckhalter, where Jackson had a room, and phoned Mrs. Herschel Floyd, whose husband was a deputy sheriff, and informed her they were on their way to surrender. Request was made that their desire be communicated to the officers. Both Jackson and Pearson, at the Ulis Floyd home and at the Pritchard residence, were armed with carbines and Pearson was carrying an automatic pistol. After shooting the Floyds, Jackson and Pearson, in backing away, stuck their automobile in a ditch, after which they set out on foot on the journeys hereinabove detailed.

After learning that Pearson and Jackson had returned to, and, then departed from, the Pritchard residence, the officers made an intensive but unsuccessful search to locate them. About two hours following the shooting, Don Steen and R. C. McGuffee, members of the state highway police, accompanied by Deputy Sheriff Alonzo Taylor, in an automobile of the sheriff's department, driven by Steen, sighted Jackson and Pearson walking along a sidewalk in a wooded area adjacent to U.S. Highway 84. At that time the officers were under the impression the men were heavily armed. They had not been informed of Jackson's call to Mrs. Herschel Floyd nor of Pritchard's conversation with the sheriff. Nor did they have any information that the men desired to surrender. The officers were surprised by the sudden and unexpected appearance of the persons whom they desired to apprehend and arrest, whereupon Steen applied his brakes and brought the automobile to a stop within approximately 30 feet of them. Jackson and Pearson were then behind and out of the lights of the officers' car. The officers called and directed them to approach the front of the car with their hands uplifted. Two, and possibly three calls, were made. These instructions went unheeded.

Jackson and Pearson, according to their own testimony, approached the side of the car, as claimed by them, with their hands up, at least, shoulder height. The officers stated the approach was made by Jackson and Pearson in a semicrouched position, whereupon, as they neared the car, Taylor opened fire with two shots from a carbine rifle, shooting through the front car door, because of his inability to quickly open it. These shots struck Pearson in the abdomen. Jackson then took a course toward the front of the car and Steen, from the left side of the car, shot once, striking Jackson's right arm above the wrist, the bullet making its exit toward the elbow.

After Pearson and Jackson were thus wounded and after they had fallen to the ground, the officers searched them for weapons and, finding none, immediately took them to a local clinic for first aid and then to a hospital in Pineville, where Pearson remained under treatment for approximately two months, during which time he underwent surgery on three occasions. All of the officers testified that when Pearson and Jackson failed to uplift their hands and go within the illumination of the headlights of the automobile they were apprehensive of an impending attack upon them.

For the privilege of self-defense to exist, it is not necessary that the danger actually exist. It is only necessary that the actor have grounds which would lead an ordinary reasonable man to believe it exists, and that he so believe. All the facts and circumstances of the case are to be taken into account to determine the reasonableness of the belief. In Patterson v. Kuntz, La.App., 28 So.2d 278, 282, this principle of law was discussed and plaintiff denied recovery. There it was stated:

'If the evidence submitted by the defendant and his witnesses is sufficient to warrant a finding that he, as a reasonably prudent man, had good cause to believe that the intruder entered the property with an intent to do bodily harm to his wife or his daughter, then it matters not whether plaintiff's son trespassed on the premises for the purpose of relieving himself or to 'peep' or to commit acts of violence. It is...