Smith v. Tate

• Decision Date: 19 January 1921
• Citation: 227 S.W. 1026
• Parties: SMITH et al. v. TATE et al.
• Court: Tennessee Supreme Court

227 S.W. 1026

SMITH et al. v.TATE et al.

Supreme Court of Tennessee.

January 19, 1921.

Certiorari to Court of Civil Appeals.

Three suits by Robert Smith, Mattie Smith, and George Smith, against M. G. Tate and others, consolidated for trial.Judgment for defendants in each suit was affirmed by the Court of Civil Appeals, and plaintiffs bring certiorari.Affirmed.

Jno.E. Bell and Settle & Bentley, all of Memphis, for plaintiffs in error.

C. M. Bryan and Metcalf & Metcalf, all of Memphis, for defendants in error.

E. J. SMITH, Special Judge.

These are three suits instituted by Robert Smith, Mattie Smith, his wife, and George Smith, their son, against M. G. Tate, as sheriff of Shelby county, R. B. Wilroy, H. M. Palmer, and Ed Bradley, deputy sheriffs, and the United States Fidelity & Guaranty Company, as the surety on the sheriff's official bond.

The suits are based on the alleged wrongful act of the sheriff and his deputies in entering the home of Robert Smith, and after such entrance assaulting and wounding Robert Smith, his wife, and their son.

The cases were consolidated in the trial court and tried together, and as a result thereof the jury rendered a verdict in favor of all the defendants, which was approved by the trial court, and on appeal affirmed by the Court of Civil Appeals.The Smiths have filed a petition for certiorari in this court.

As the respondents here were successful before the jury, on evidence which was materially conflicting, it is our duty to take that view of the evidence most favorable to the respondents herein.

On Sunday night, September 17, 1912, between 9 and 10 o'clock, Mr. Tate, the sheriff, received a telephone call from the marshal of Bartlett, about 17 miles distant from Memphis, in Shelby county, and was told that a murder had been committed there, and was requested to come out.The sheriff thereupon got in telephone communication with the three deputies, who, coming from their respective homes to the home of the sheriff, drove to Bartlett in two automobiles, reaching there about 11:30 o'clock or a little later.There they were met by the marshal of the town and several of the citizens, who informed them that one Benny Smith had killed a man in a crap game during the earlier part of the evening and had gone to the place of his uncle, several miles distant from Bartlett, and that, if they, the sheriff's party, would go with them, they would point out the place to which Benny Smith had gone a short time before.

The sheriff's party and four or five of the citizens went in pursuit of Benny Smith.The party was taken to the home of the plaintiffRobert Smith, who was, as above stated, an uncle of Benny's.Two of the party went to one of the houses there and awakened the occupants, one of whom was Curtis Smith, a son of the plaintiffRobert Smith.He went with the deputy next door, a short distance away, to the home of his father, telling the deputy that Benny might be at his father's house.Certain of the sheriff's party had in the meantime knocked at the door of the plaintiff, and had informed the occupants of their official character and asked admittance for the purpose of arresting Benny Smith.There was some stirring within, and the sheriff directed one of the deputies to go to the back of the house to prevent the escape of Benny Smith.When the deputy reached there he found the door open and the wife of Robert Smith near by.Mr. Wilroy, a deputy, alone entered through the back door, which was open, into the room where Robert Smith was sitting with a high-powered rifle across his lap.After a friendly assurance to the plaintiffRobert Smith that no harm was meant to him, he(Robert Smith) and Mr. Wilroy, a slender, frail deputy sheriff, together sat on the trunk which was near the bed of Robert Smith and his wife.

A moment or two later Mr. Palmer, one of the deputy sheriffs, following Mr. Wilroy to the rear of the premises, followed him into Robert's room, and behind him came the third deputy, Mr. Bradley, the sheriff remaining at the front of the premises.

As Robert Smith observed the two deputies entering the room, Bradley in the rear of Palmer, he(Robert) arose from the trunk where he was sitting, and fired his Winchester rifle at the two approaching deputy sheriffs, missing them, the ball evidently going on out into the open through the open door through which they entered.As Robert Smith raised to fire, Bradley threw his body against Robert in an effort to wrench from him the rifle.The two scuffling fell together on the bed, Robert Smith getting the better of Mr. Bradley.The plaintiff was a large, powerful, and muscular negro.Mr. Bradley had shortly before had an operation for hernia and had lost in weight from 50 to 75 pounds.Mr. Palmer, seeing that the negro was about to overpower Bradley, and in order to compel a release of the rifle, but with no intention of doing Smith other than necessary injury to make him release his grasp, shot him through the hand.This had no effect on the negro, and Palmer then shot him in the shoulder, and the negro released the rifle.

Mattie, the wife, picked up the rifle which her husband had released when shot, and Bradley was seeking to take it away from her, scuffling with her from room to room, when Palmer lightly struck her over the head with the butt of his pistol and made her release the Winchester rifle.

At that moment there came from the adjoining room, which was without light, George Smith, a big, powerful negro of about 30 years of age, who attacked Palmer, but Palmer without shooting him, struck him on the head with the butt end of his pistol, felling him and breaking a piece of the bone handle of his weapon.The officers did not have a warrant for the arrest of Benny Smith.

From the foregoing statement of facts, which was evidently accepted by the jury in finding a verdict in favor of the respondents, we are of the opinion that the sheriff and his deputies had reasonable grounds for believing that Benny Smith, the alleged culprit, was in Robert Smith's house, and this disposes of the first and second...