State to use Of Johnson v. Cunningham

• Decision Date: 18 May 1914
• Docket Number: 16,445
• Citation: 65 So. 115,107 Miss. 140
• Court: Mississippi Supreme Court
• Parties: STATE TO USE OF JOHNSON et al. v. W. W. CUNNINGHAM et al

65 So. 115

107 Miss. 140

STATE TO USE OF JOHNSON et al. v. W. W. CUNNINGHAM et al

No. 16,445

Supreme Court of Mississippi

May 18, 1914

APPEAL from the circuit court of Prentiss county. HON. J. H MITCHELL, Judge.

Suit by the state for the use of John A. Johnston, and others against W. W. Cunningham and others. From a judgment for defendant plaintiff appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Thos H. Johnston, E. C. Sharpe and A. J. McIntyre, for appellants.

Appellees' argument seems to be based upon the idea that the phrase in the declaration, viz.: "Fired his pistol at and towards the said Johnston," must be met by proof on our part that the sheriff actually fired his pistol directly at and towards the boy who was killed; and that proof that the pistol was fired to one side, or above the boy, meets the issue presented by the pleadings, and entitles them to a verdict. Counsel's argument, reduced to the last analysis, simply means this, that if the sheriff had offered proof that he fired one inch to the right, or above the boy, or any other inappreciable distance, and could have convinced the jury of the truth of such statement, that this would entitle him to go free of all liability, because he had shown that he had not fired directly at and towards the boy. The two words "at and towards," taken in the narrowest sense, do not necessarily mean directly towards. The word "at" in its primary meaning and significance, means "in or near;" and the word "towards" means "in the direction of." So giving the phrase its primary meaning, it could but mean, "in or near the direction of the boy;" but we contend that this phrase, taken in connection with the other matter alleged in the declaration, is broad enough to cover liability for the negligent, careless, willful and intentional killing of the boy by the firing of the pistol by the sheriff. The only case which we have been able to find where a similar phrase has been construed is that of Lange v. State, 95 Ind. 114, 115.

But we submit, that even if it were incumbent upon appellants, under the pleadings, to prove that the sheriff fired directly at and towards the boy, as they so strongly contend that it does, but which we in nowise admit, the peremptory charge should have been granted upon the second ground urged in our original brief. That is to say, there was ample evidence by appellants' disinterested witnesses, and the physical facts show, that the shot, whether intentionally or not, was fired directly at and towards Johnston, and there was no evidence to countervail this. The testimony of appellees' witnesses was utterly at war with the proven physical facts and the laws within the knowledge of common experience and did not produce even a scintilla of evidence.

Relative to the extreme care required by those who handle firearms and the liability for injuries inflicted by by their discharge, counsel seem to think that these cited in our original brief go to unwarranted extremes. In view of the lamentable frequency with which injuries and death occur from the negligent handling of firearms, we doubt if they go far enough. There is a line of cases in which injuries are inflicted by one to another of a hunting party. The courts in these cases hold the plaintiff to proof of negligence in the handling of the firearm, apparently holding that the party injured, to a certain extent, assumed the risk, or at least voluntarily exposed himself to the risk of accidental injury by joining the hunting party. 12 Am. & Eng. Ency. of Law, 520.

In the case of Dixon v. State, Miss. , 61 So. 423, cited by counsel, the principal ground for reversal in that case, was that an instruction was given which was tantamount to a peremptory charge. This being a criminal case, the court held such a charge to be reversible error, for a peremptory charge can never be given to find the defendant guilty. Had this been a civil suit against Dixon for damages, would there have been any question as to the propriety of giving such a charge? He would have been liable beyond question. To this point see the case of Knott v. Wagner, Tenn. , 16 Lea., 481, where it was held that the defendant fired his gun within two hundred yards of a public highway, which was forbidden by the statutes of the state, was liable for the injuries resulting from his wrongdoing.

The case of Cleghorn v. Thompson, 54 L. R. A. 402, also cited by counsel, seems to have been decided upon the principle that the result of the defendant's action, in firing at a marauding dog running up hill towards a highway, three hundred and fifty to four hundred yards away, the bullet striking some object and glancing and killing a man in the highway, which it is doubtful that defendant even saw, could not have been foreseen. But the principle of law laid down in the case cited in our original brief is not criticized, or commented upon. To the contrary the annotator cites in the note to said case, the case of Sullivan v. Dunham (N. Y.), 47 L. R. A. 715, where it was held that where a person was killed on a public highway by a missile thrown by the explosion of a blast, the person firing the blast was held guilty as a trespasser without regard to his negligence. This seems to be the general rule where dangerous agencies are used.

Jas. A. Cunningham, for appellees.

Counsel for appellant, in their able brief, set up two lines of argument to convince this court of the merit of their contention, under assignment of error I. First, they take the position that the very act of the sheriff in shooting (though the death of Johnston is shown to have been effected by an entirely different cause, and under entirely different circumstances of shooting to that alleged) was unlawful, and that by his unlawful conduct, appellees are precluded from showing circumstances exculpating themselves from the clutches of the law.

So at this late hour, appellants seek to avoid the very burden assumed by them in specifically averring, in their declaration, that appellee Cunningham, sheriff did on this occasion, "negligently, carelessly, recklessly, wilfully, intentionally, wrongfully, and unlawfully, fire his pistol at and toward the said Frank Johnston," etc. This appellees denied; the issue so made went to the jury, and they found against the contention of appellant.

The purpose of the court in refusing instructions numbers 6, 7, and 8, complained of by appellant under assignment II, could not have escaped again the understanding of the learned counsel for appellant; and the instructions complained of under assignment III, given appellees, announced in unmistakable terms the purpose of the court to confine appellants to the issue made in this declaration, which was the only open course in the absence of amendment, and in support of the court's action, we quote the following authorities, which we think amply support his views, to wit: Hughes on Procedure, 1905 Edition, "Variance," page 1254; Bristow v. Wright, L. C. 135; I Gr. Ev., 51, 63-65; 2 Id.; See Res Adjudicata.

Pleadings, among other things, limit issues and narrow proofs. Consequently they are to exclude departures and variances; and courts cannot therefore authorize the latter without practically abolishing pleadings, which is impossible in a constitutional government. See, also, Puterbaugh's Common Law Pleading and Practice, 1904 Edition, pp. 27, 28. Also, the following: 29 Cyc. 583-5; 31 Cyc. 672, 3, 674; Richards v. City Lumber Co., 101 Miss. 691; A. & V. R. R. Co. v. Groome, 97 Miss. 209; 14 Am. & Eng. Pleading & Practice, pp. 342, 343.

The contention that, because this pistol was fired by the voluntary act of the sheriff and resulted in the death of Johnston, appellees are precluded from being heard on the defense set up in this record, is a most unreasonable demand--one that could not be maintained even under a declaration of general negligence against the sheriff for wilfully, etc., firing his pistol in the manner shown by this record.

The sheriff's sworn and official duty to make arrests under the circumstances such as confronted Cunningham on this occasion, is stripped by counsel for appellant of every semblance of its meaning. While no one would think it his duty, or even his right, to shoot wilfully or negligently at or toward Johnston, as alleged in this case, to effectuate this arrest, yet both public policy and the law demand that a sheriff exercise all reasonable means to arrest the participants of a drunken brawl and fight on an occasion of a religious meeting on the Sabbath Day. Not to be active and resourceful in effecting such arrest would expose a peace officer to the daring and ridicule of criminals and subject him to the contempt of law-abiding citizens.

A sheriff is only confined in the selection and exercises of the means of arrest to such reasonable means as ordinarily prudent men would likely adopt under similar circumstances. The officer, on this occasion, attempted the arrest by means of pursuit, by commanding decedent to stop, by threatening to shoot him if he did not stop, and by actually firing his pistol to get him to stop, at what would appear to any reasonable mind to be a safe range to preserve the safety of Johnston and all others. As to whether or not a sheriff or anyone else, in an effort to perform a duty, has selected reasonable means, and has exercised reasonable care in carrying the means into effect is, when controverted, a matter to be left to the sound discretion of a jury. Counsel seem to overlook the fact that the shooting was adopted by the sheriff as one of the means of achieving this arrest.

There is the strong and well-reasoned case of Cleghorn v. Thompson (Kan.), cited in 54 L. R. A. 402, in which a ball fired...