State ex rel. Harbin v. Dunn

CourtCourt of Appeals of Tennessee
Citation282 S.W.2d 203,39 Tenn.App. 190
PartiesSTATE ex rel. Hattie HARBIN, Administratrix, v. Robert DUNN et al. STATE ex rel. Arthur PARKER v. Robert DUNN et al. *
Decision Date13 November 1943

Page 203

282 S.W.2d 203
39 Tenn.App. 190
STATE ex rel. Hattie HARBIN, Administratrix,
Robert DUNN et al.
STATE ex rel. Arthur PARKER
Robert DUNN et al. *
Court of Appeals of Tennessee, Middle Section.
Nov. 13, 1943.

[39 Tenn.App. 194] J. B. Daniel, Paul Holbrook, Nashville, for plaintiff in error.

John W. Hilldrop, Collett Mayfield, Nashville, for defendant in error.

FELTS, Judge.

These two cases, tried together, are actions against Robert Dunn, a constable, his official bondsmen, and Wilbur Collins for causing the death of Spencer Parker and personal injuries to Arthur Parker by firing a pistol into their automobile.

Relators charged that while acting by virtue of his office as constable, being driven in his automobile and aided and abetted by Wilbur Collins, and pursuing Arthur and Spencer Parker to arrest them for a misdemeanor he claimed they committed in his presence, the constable fired several shots at them in their automobile, shot down one of its rear tires, and caused it to overturn and kill Spencer Parker and seriously injure Arthur Parker.

[39 Tenn.App. 195] The trial judge directed verdicts for defendants, and plaintiffs appealed in error and insist that the cases should have been submitted to the jury. The evidence disclosed these facts.

Arthur Parker was 28, married, and the father of two small children. For some ten years he had been employed at the DuPont Rayon Company at Old Hickory in Davidson County. His brother Spencer Parker was 21, unmarried, and lived on a farm in Davidson County with their mother, Hattie Harbin, who is now administratrix of Spencer Parker, deceased, and one of the relators or plaintiffs. On May 2, 1941, Arthur and Spencer Parker and their cousin Frank Parker, 18 years of age, went to Dickson in Arthur's automobile. On their way back home they stopped in White Bluff, Cheatham County, at Collins' place, Clearview Inn, a beer garden. Spencer had one bottle of beer and the other two had two bottles each. But none of them were drunk. At about 10 P. M. they left the beer garden and started home in the automobile, going toward Nashville on Highway No. 1 from White Bluff.

Spencer was driving the car. After going two or three miles they saw another

Page 206

automobile overtaking them, someone in it waving a flashlight. Thinking it might be 'somebody trying to hold us up,' Arthur told Spencer to outrun that car, and he speeded up to about 65 or 70 miles per hour. After running a mile or two and crossing the Cheatham County Line into Davidson County, they saw someone, later identified as Robert Dunn, the constable, lean out the pursuing car and begin firing a pistol at them. He fired four shots into their car, shot down its left rear tire, and caused it to overturn and injure all of them. They were taken to the Nashville General Hospital where their injuries were treated and where Spencer died of his injuries.

[39 Tenn.App. 196] The constable charged Arthur and Frank Parker with public drunkenness in Cheatham County and in Davidson County. They were tried and acquitted in Davidson County; but when they went to answer the charge in Cheatham County they found that the justice of the peace before whom it was brought was not at his office or his home. When they went back again the justice proposed to dismiss the charge if they would pay the costs. They agreed to this on the advice of their attorney, Mr. Paul Holbrook, not because they were guilty but because it was cheaper than the expense and trouble of making further trips to defend against the charge. Robert Dunn, the constable, was present when the costs were paid, and he admitted that he had fired the shots into the automobile. Also, without their knowledge, Mr. Holbrook paid Mrs. Collins 50 cents, which she claimed they owed her for the beer.

The constable did not testify, and the only witness called by defendants was Clarence Greer, the justice and also one of the defendant sureties on the constable's bond; and he testified to nothing except the payment of the costs and the dismissal of the charge of public drunkenness.

The record does not show upon what ground the verdicts were directed. The ground here urged to support that action is that the young men were guilty of not paying for what they had bought at the beer garden, guilty of public drunkenness, and guilty of driving while drunk; that these were offenses for which the constable had a right to arrest the offenders; and that when he undertook to do this and they tried to flee in the automobile he had a right to shoot down its tires, as the only means of accomplishing the arrest.

We cannot follow this argument. It is true that Code section 11536 authorizes an officer to arrest, without a warrant, a person for a public offense committed in his [39 Tenn.App. 197] presence; and that public drunkenness and driving while drunk are public offenses; but it is not true that an officer undertaking to arrest for such offenses, which are only misdemeanors, has a right to shoot the offender or endanger his life by shooting into his automobile to stop it and effect his arrest.

As regards the means to which an officer may resort to make an arrest, the law sharply distinguishes between felonies and misdemeanors. While an officer may shoot or even kill a felon, if that is the only means of taking him or preventing his escape; yet in so doing the officer acts at his peril, for a jury may find that there was no reasonable necessity for the killing and that he is guilty of at least manslaughter. But an officer has no right to shoot at one guilty of only a misdemeanor to stop his flight or prevent his escape. The law considers that it is better to allow him to escape altogether than to take his life or to do him great bodily harm. Reneau v. State, 70 Tenn. 720, 31 Am.Rep. 626; Love v. Bass, 145 Tenn. 522, 238 S.W. 94; Human v. Goodman, 159 Tenn. 241, 18 S.W.2d 381; Brown v. State, 159 Tenn. 422, 19 S.W.2d 231; Scarbrough v. State, 168 Tenn. 106, 76 S.W.2d 106; Johnson v. State, 173 Tenn. 134, 114 S.W.2d 819; Jennings v. Riddle, 20 Tenn.App. 89, 95 S.W.2d 946; State to Use of Johnston v. Cunningham, 107 Miss. 140, 65 So. 115, 51 L.R.A.,N.S., 1179.

In Reneau v. State an officer was held guilty of manslaughter for killing a misdemeanant to prevent his escape, and in Scarbrough v. State an officer was adjudged guilty of a like crime for killing a fleeing felon. In Love v. Bass, where a sheriff or

Page 207

his deputy killed a felon in flight, it was held a question for the jury whether there was any reasonable necessity for the killing and whether the sheriff and his bondsmen were liable in damages for [39 Tenn.App. 198] the death. Human v. Goodman affirmed a judgment for damages against an officer for shooting a misdemeanant running away, and so did Jennings v. Riddle. Likewise, in State, to Use of Johnston v. Cunningham, a sheriff and his bondsmen were held liable for damages for killing a fleeing misdemeanant.

Learned counsel argue that this case differs from those cases in that there the officer shot the person and here he shot the tire only to stop the car and arrest the occupants; and that this is 'the well-recognized method of stopping miscreants and law-breakers, all over the country, since the advent of the automobile.'

When applied to persons guilty only of a misdemeanor, however, a practice so unnecessary, so wanton, and so hazardous to human life by peace officers is not to be tolerated in a civilized state. Apart from the peril to innocent users of the highways, such a practice endangers the lives of petty offenders not only from mis-aimed gunfire but also from wrecking the automobile in consequence of shooting down its tires, as happened in this case.

The principle underlying the above decisions is that it is not only a civil wrong but also a crime for a peace officer to use firearms so as to imperil life or limb of a non-resisting, fleeing misdemeanant in an attempt to arrest him or prevent his escape. Johnson v. State, supra, held an officer guilty of a criminal assault for shooting at a misdemeanant fleeing from arrest; and in Brown v. State, supra, where an officer was convicted of manslaughter for killing a misdemeanant in an attempt to arrest him, the Court, through Mr. Justice Swiggart, said:

'* * * It was certainly unlawful for Brown to employ his pistol in making the arrest for a simple misdemeanor. This court has recently spoken on [39 Tenn.App. 199] this subject in no uncertain terms. Human v. Goodman, 159 Tenn. , 18 S.W.2d 381.' 159 Tenn. 426, 19 S.W.2d 232.

Likewise, in State, to Use of Johnston v. Cunningham, supra, the Supreme Court of Mississippi expressed itself on the point as follows:

'There can be no question that a sheriff and the sureties on his official bond are liable in a civil action for damages arising from the intentional or negligent shooting of a misdemeanant who flees to avoid arrest. The officer owes to the fugitive the duty to exercise care and precaution not to injure him. He must not intentionally shoot a misdemeanant who is fugitive, nor must he discharge a firearm while in pursuit, in such a manner as to cause such fugitive injury.

* * *

* * *

'The evidence discloses that there is a custom among officers to fire their pistols when pursuing fugitives, even where they are misdemeanants, as a ruse to prevent their further flight. We unqualifiedly condemn this practice of the reckless use of firearms. Officers should make all reasonable efforts to apprehend criminals; but this duty does not justify the use of firearms, except in the cases authorized by law. Officers, as well as other persons, should have a true appreciation of the value of a human life.' 107 Miss. 149, 152, 65 So. 117, 51 L.R.A.,N.S., 1182, 1183.

Under the foregoing cases, the duty to arrest for a misdemeanor affords no justification or excuse for shooting into an automobile to effect the arrest; and such an act is wanton or malicious...

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