Rhoden v. Booth, 15759

• Decision Date: 17 February 1961
• Docket Number: No. 15759,15759
• Parties: Harold R. RHODEN et al., Appellants, v. Mrs. Joseph L. BOOTH et al., Appellees.
• Court: Texas Court of Appeals

Page 481

344 S.W.2d 481

Harold R. RHODEN et al., Appellants, v. Mrs. Joseph L. BOOTH et al., Appellees.

No. 15759.

Court of Civil Appeals of Texas, Dallas.

Feb. 17, 1961.

Rehearing Denied March 17, 1961.

Burt Barr and Stanley C. Hogg, Dallas, for appellants.

Storey, Armstrong & Steger and John K. Delay, Jr., Dallas, for appellees.

DIXON, Chief Justice.

This is a wrongful death suit brought by Mrs. Joseph Laurence Booth, surviving widow of Joseph Laurence Booth, suing in her individual capacity, and also as next friend of Betty Jo Booth, Judith Elaine Booth, and Charlene Cupples, children of Joseph Laurence Booth. The last named plaintiff was joined pro forma by her husband R. E. Cupples.

There were originally eight defendants, but a take nothing judgment was entered in behalf of five defendants, who are not involved in this appeal. The other defendants, appellants herein, were T. A. Vines, Constable, Precinct No. 7, Dallas County, Texas, Harold R. Rhoden, Deputy Constable under Vines, and Aetna Casualty and Surety Company, surety in the amount of $1,000 on Vines' official good performance bond.

Appellees in their petition alleged that Deputy Constables Harold R. Rhoden and C. S. McKissick, (now deceased), while serving an instanter subpoena on Booth, wrongfully and maliciously shot and killed Booth.

The suit was tried to a jury which found that (1) Vines did not know of the alleged wrongful acts of his deputies, (2) did not authorize; and (3) did not ratify said acts; (4) Rhoden and McKissick, the deputy constables, were under bond; (5) Rhoden did not fire his pistol at Joseph Laurence Booth in defense of McKissick, as the term defense had been defined; and (6) the act of Rhoden and McKissick in shooting Booth was malicious and wilful. The jury found actual damages in excess of $15,000 and exemplary damages of $1,000.

Based on the jury verdict judgment was rendered in favor of Mrs. Joseph Laurence Booth against T. A. Vines and Harold R. Rhoden, jointly and severally, for $14,000; and against Vines, Rhoden and Aetna Casualty and Surety Company, jointly and severally, for $1,000. A judgment was also rendered in favor of Mrs. Joseph Laurence Booth individually and as next friend for the three children of the deceased against Rhoden and Aetna Casualty and Surety Company for $450. And finally judgment was rendered in favor of Mrs. Booth individually and as next friend of the three children against Rhoden alone for $1,000.

The judgments of $450 and $1,000 in favor of Mrs. Booth individually and as next friend of the three children do not state what portion of said awards should go to Mrs. Booth or what portion should go to each of the children.

Rhoden's Appeal.

Appellant Rhoden's first point on appeal is that the trial court should not have charged the jury to the effect that Rhoden was limited to 'reasonable' means to defend McKissick since Booth attacked McKissick with a wrench about eighteen inches long. It is appellant's contention that under the law applicable he was entitled to use any means to protect McKissick from death or bodily injury.

Among the definitions and instructions given to the jury in the court's charge were the following:

'Upon the law of self defense you are instructed that when a person is attacked or threatened with an attack by another, and there is created in the mind of the person so attacked a reasonable expectation or feat of death or of serious bodily injury, then the law excuses or justifies such person so attacked in resorting to any reasonable means at his command to prevent his assailant from taking his life or inflicting upon him any serious bodily injury, and it is not necessary that there should be actual danger as a person has a right to defend his life and person from apparent danger as fully and to the same extent as he would had the danger been real, provided he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time; and in such case the party acting under such real or apparent danger is in no event bound to retreat in order to avoid the necessity of killing his assailant.

'You are further instructed as a part of the law in this case that a person is justified in acting in defense of another against unlawful violence against such person as it appears to him in the same manner and to the same extent as he would be acting in his own defense.

'You are further instructed that 'serious bodily injury' means such injury as gives rise to an apprehension of danger to life, health or limb.' (Emphasis ours).

The above instruction was requested by appellant Rhoden except that the court, at appellees' urging and over Rhoden's objection inserted the word 'reasonable' between the words 'any' and 'means' in the phrase 'resorting to any means at his command.'

The jury during its deliberations sent a note to the judge asking for a definition of the word 'reasonable'. The judge answered that the word was used in its ordinary sense.

Evidence in Rhoden's Appeal.

Rhoden in his own defense testified that he was given an instanter subpoena to be served on a person known as 'Tennessee', whose real name was Joseph Laurence Booth. The subpoena did not come to Rhoden through Constable Vines' office, but was handed to him in the office of Justice of the Peace, W. C. Richburg, by the clerk of the justice court. Rhoden called by telephone from the clerk's office and informed Booth of the subpoena. Rhoden testified that Booth 'told me that he was not coming to that court or any other 'son-of-a-bitching court' now or later. If I wanted him, if I came out there to bring $25 and twenty-five men'. Rhoden and McKissick then left together to go to the place where Booth was working, their purpose being to serve the subpoena. The address given on the subpoena proved to be a service station and garage.

On arriving they found two men in the garage, one of them standing near an automobile on which the other man was working. Upon inquiry they were informed that 'Tennessee' was the man working on the automobile. Rhoden did not know 'Tennessee', or Booth, as we shall hereafter call him, and had never seen him before. Booth, who was in a stooping position at the time, straightened up with a speed wrench in his hand. According to Rhoden he then told Booth that he and McKissick worked out of the constable's office and that he was the officer that called him on the 'phone, that they had a subpoena for him out of Judge Richburg's court and the Judge wanted him to come to his court immediately. Rhoden had the subpoena in his right hand. McKissick had his identification folder in his hand and also had his badge.

Booth, according to Rhoden, said that he was not going to the court now or later. McKissick then said 'Man, you might as well go on over there. You eventually will have to go to see the judge.' At that time Booth drew the wrench back over his head and hit straight at McKissick, who was standing in front of booth. Booth would have hit McKissick if McKissick had not jumped back. McKissick then circled to Booth's left. Rhoden tried to hit Booth's hand with a night stick in order to knock the wrench out of his hand, but missed. He then asked Booth to lay the wrench down, but Booth did not do so. Instead he turned and tried to his Rhoden with the wrench, but missed when Rhoden jumped back. Then Booth turned toward McKissick again, bringing the wrench up and down over McKissick's head. It was at this juncture that Rhoden fired his pistol at Booth. Rhoden said he did not have time to take aim, so fired quickly in Booth's direction. McKissick fired at the same time. Booth was hit. In due time an ambulance arrived at the scene. Within about an hour Booth was dead.

Rhoden testified that in attempting to serve the subpoena he did not arrest or attempt to arrest Booth. He had the subpoena in his hand because it was customary to read criminal subpoenas to persons summoned. His instructions were that if a person summoned refused to obey an instanter subpoena, the officer would then report back to the court, and upon affidavit, the court would issue an attachment. But until the attachment was issued he never attempted to arrest a person for denying the subpoena, or try to force him to obey it. In this case, according to Rhoden, he never got around to reading the subpoena because he did not have time to do so before Booth lanunched his attack.

The testimony of D. O. Milburn is in sharp conflict with that of Rhoden. Milburn was the man standing near the automobile on which Booth was working. He was the owner of the service station and garage. He had an arrangement with Booth whereby Booth used the garage shop and paid Milburn a percent of the revenue as rent on the garage.

According to Milburn one of the officers inquired for 'Tennessee'. When Booth was pointed out to them he stepped down from the fender on which he was sitting and said 'Yes, I am Tennessee'. Rhoden spoke next and said 'Come on, we are taking you in', which statement was repeated two or three times. Each time Booth asked why they were taking him in. At the time Booth had a three-eighths speed wrench in his hand. McKissick had a black jack in his hand. Rhoden had a wooden 'billy' or club. Rhoden then pulled a piece of paper out of his inside coat pocket and said, 'That is the reason why'. After the officers had told Booth several times to come on, Rhoden made a lunge at Booth and hit him on the head and shoulder with the 'billy' club, knocking Booth to his knees. Booth quickly arose. The officers again told him several times to come on. The officers then drew their guns, and after a lapse of five or six seconds, both of them fired their pistols. Only the two shots were fired. Booth again fell to his knees. Some time later he was placed in the ambulance and taken to the hospital.

The testimony is undisputed that the wrench Booth had in his hand was about eighteen inches long, made of solid...