Reed v. Philpot's Adm'r

• Decision Date: 07 October 1930
• Citation: 31 S.W.2d 709,235 Ky. 429
• Parties: REED et al. v. PHILPOT'S ADM'R et al.
• Court: Kentucky Court of Appeals

31 S.W.2d 709

235 Ky. 429

REED et al. v. PHILPOT'S ADM'R et al.

Court of Appeals of Kentucky

October 7, 1930

Appeal from Circuit Court, Estill County.

Suit by Lilly Reed and others against R. C. Philpot's administrator and others. Judgment for defendants, and plaintiffs appeal.

Affirmed.

A. F Byrd, of Lexington, for appellants.

Hugh Riddell and H. M. Shumate, both of Irvine, for appellees.

STANLEY C.

This suit for damages was filed by the widow and children of Henry Reed against the administrator of R. C. Philpot's estate Joe Spivy, and the sureties on the bond of Philpot, as chief of police of the city of Irvine. The jury returned a verdict for the defendants, and the plaintiffs appeal.

The petition alleges that Reed was a deputy sheriff of Estill county, and that, while he had one Estes in custody on a charge of transporting and possessing intoxicating liquor Philpot, while acting in his official capacity, had summoned Spivy to assist him, and the two attempted to arrest Estes and take him unlawfully and forcibly from the custody of Reed, and also to seize a suitcase containing intoxicating liquor. It is charged that in attempting to do so they maliciously and wrongfully, not in their self-defense or apparently necessary self-defense, and by using more force than was necessary or believed by them to be necessary to make the arrest, assaulted and wounded Reed by striking him with a pistol and by shooting him, from which he died; Philpot and Spivy each aiding and abetting the other. In the affray both Reed and Philpot were killed, and the two other men wounded.

The evidence introduced in behalf of the plaintiffs was that Estes, a pool room operator and bootlegger, got off the midnight train of August 20, 1920, at Ravenna, which adjoins the city of Irvine, with a suitcase of whisky. He was drinking, but does not remember that he was drunk. Reed, a deputy sheriff of Estill county, had been at the station about an hour waiting for the train. Joe Spivy, a railroad policeman, was there with a fellow officer, Rollings. A few minutes after the train came in he saw a man with liquor, as he supposed, going around the depot, and they followed him. There they met up with Philpot, and he asked which way Reed and Estes had gone. They told him, and he said: "Come you fellows and go with me." Rollings declined to go, and advised Spivy it was not his place to do so either, but Spivy said he would go with Philpot, and accompanied him.

Estes testified that Reed had arrested him when he got off the train and had started to jail with him, but did not give any reason for the arrest; that, when they had gotten within the limits of the city, Philpot and Spivy drove up in an automobile, and Philpot stated: "Come on Joe, we will take them now," drew his pistol and climbed out of the car. Addressing Estes, Philpot charged him with being drunk or drinking or having whisky--the testimony is indefinite--and demanded of Estes that he "hand over that grip," or something of that kind. Reed told Estes not to do it, and grabbed it himself, informing Philpot that Estes was his prisoner and that he could examine the grip at the jail. There was considerable argument between the two officers, according to Estes, and both of them had their pistols drawn. In a few moments, however, the four men continued the journey together a short distance, Reed carrying the suitcase. He told Philpot, "You are perfectly welcome to go on down with me or anywhere you want to." Spivy was just back of them, and Philpot told him to go cut the switch off the car, the engine of which had been left running, and the lights burning. Spivy did so. Estes further testified:

"So they come on, must have been twenty five or thirty yards from there, Philpot, he seemed to get awful mad because Mr. Reed wouldn't give him the grip and let him look into it. He told him, he said, by God he was going to see in the grip or something, he was police of Irvine, he was going to look in that grip, something to them words, Reed told him no, said, 'When I turn this boy over to the jail or put him in jail, I will turn the grip over to the court, you can look in it or whoever wants to, I don't care who looks in it.' About that time I looked around, he was talking so sassy, just as I looked around he struck Mr. Reed by the side of the head with a gun, he fell right back in the building like, about the time he got there then there was a gun fired and struck me."

The building referred to was under construction, with a low foundation or some obstruction along the pavement over which Reed fell. Several shots were fired, and Estes says that Spivy ran up and began shooting "right down in on them" back in the building just off the sidewalk. He could not or would not say whether either Philpot or Reed fired, because both were out of his sight. Spivy shot him (Estes). It is almost impossible to tell from Estes' evidence as to who began the shooting, or, indeed, as to who fired the shots which killed either Philpot or Reed. A doctor who examined Philpot's body stated he had been shot apparently with a .44 or .45 bullet which went through his neck and carotid artery and caused instant death. It was established that Reed's pistol was a .45 caliber. Another witness testified Philpot was shot in the arm, in the neck, and in the small of the back.

The defendants denied the allegations of the petition and pleaded self-defense and the defense of each other on the part of Philpot and Spivy. In the practice of the case they appear also to have gone on the theory that Reed was associated with Estes in bootlegging and had met him at the depot to escort him or to get the liquor from him. More than one witness testified that Reed had sold liquor or had it in his possession, and a witness stated that during the afternoon, upon his inquiry, Reed told him he did not have any whisky then, but would have some by the next morning. They undertake to justify the action of Philpot in attempting to arrest Estes and take him from the custody of Reed on this ground. It may be said that Estes denied any arrangements with

Reed, and stated he only knew him slightly.

There is no evidence introduced by the defense as to the immediate facts except a statement made by Reed to a physician about thirty minutes after being shot, which was admitted over the objection of the plaintiff. The substance of that statement is that he (Reed) was bringing Estes down the street, and he thought Philpot and Spivy were trying to...