Suzore v. Rutherford
| Decision Date | 10 March 1952 |
| Citation | 35 Tenn.App. 678,251 S.W.2d 129 |
| Parties | SUZORE v. RUTHERFORD. |
| Court | Tennessee Court of Appeals |
McDonald, McDonald & Kuhn, of Memphis, for plaintiff in error.
Harry Jamerson W. E. Hendrix, of Memphis, for defendant in error.
James Rutherford sued the plaintiff-in-error, Fred Suzore for damages, both actual and punitive, for wilfully, maliciously and unlawfully shooting him.
Suzore plead self-defense.
The case was tried to a jury which rendered a verdict for $4,000 actual and $10,000 punitive damages.
The cause was tried at the March Term, and judgment entered on the verdict on April 19, 1951. Defendant seasonably filed his motion for a new trial on May 1, within the fifteen days allowed by the rules of the court, the same was submitted and was overruled July 5, which was in the succeeding May Term. On July 6 defendant filed an amended motion for a new trial setting up new grounds not covered in the original motion for a new trial. The Court overruled same 'with leave granted to the defendant to rely upon said amendment with supporting affidavits and to file said amendment in this cause.'
The assignments of error raise two questions (1) the verdict is so excessive as to show passion, prejudice or caprice, and (2) the alleged error of the trial Court in overruling the amendment to the motion for a new trial based upon the alleged misconduct and bias of a juror.
As to the first question, it is not insisted that there is no evidence to support the verdict as to liability, but only that the evidence does not support such an alleged excessive amount.
A recital of the evidence favorable to plaintiff below is necessary to show what was before the jury. James Rutherford is a Negro farmer age 56, married and the father of nine children, the eldest being 28 years of age, and lives with his wife and family on a 40-acre farm where they have lived the past 15 years, which farm he is buying, in the upper part of Shelby County near a small farm owned by defendant Suzore. He served 15 months in War I, one year of which was overseas.
Early on September 30, 1950, he was hunting squirrels on defendant's farm, which is posted, and about eight-thirty A.M. he had killed one squirrel and wounded another and was leaning against a bush watching for it when defendant, age 62, armed with a 16 gauge shot-gun and his younger companion, age 17, came upon him. 'Mr. Suzore and Mr. Birchfield came from this direction, and when he hollered to me to drop the gun, I stooped over in this position to see who it was talking to me; I looked through the bush, you understand, to see who it was talking to me, and when I stooped over in this position, before I could straighten back up, Mr. Suzore shoots me; he says 'drop your gun', and before I could make out who he was, or which way the talk was coming from he shoots me; he shot me twice before I could even straighten back up, like I am now.' They were about 30 yards from him and he had said nothing to Suzore before he was shot.
About 100 pellets entered his left wrist and arm, left leg and left side and abdomen and he fell to the ground. The other two men came up to him, Suzore kicked the gun away from him and told the young man to get him a heavy shell; that 'If he even looks at me, I am going to shoot him right in the eyes'.
He further testified that he asked them to do something for him and not leave him there to die; that mosquitoes covered his face; that these men did nothing to help him and Suzore took his hunting bag, squirrel and shells and left him. He lay there unconscious most of an hour and a half, until he regained a little strength. His left leg and arm were useless, but by means of a stick he dragged himself, using the stick as a crutch, about a half a mile to the road where he was soon picked up by a deputy sheriff, who called an ambulance, and was taken to Kennedy Veterans Hospital where they had to perform an exploratory operation on his lower viscera to determine whether the shot had penetrated the intestines. There were shot in the viscera but no puncture of the intestine proper. He remained in the hospital 12 or 13 days and has had to return periodically for observation. Many shot remain in his body and arm and leg. The hand and wrist still have some stiffness and damage to the cartilage of the wrist which could become arthritic. There is a possibility of adhesions causing a locked bowel in the future, which would necessitate another operation, although it may never occur.
He testified that he had not been able to do his farm work and that he lost about $3000 that he would have made by cutting and selling hay off the Millington Powder Plant field, where he had been getting the hay for several years.
Of course, the defendant's and Birchfield's version of the circumstances is at variance with plaintiff's but the jury was settled those conflicts in the evidence in favor of plaintiff and we are not permitted to pass judgment on which is the true picture.
Yet it seems patent that defendant's own statement could hardly have made a favorable impression on the jury, giving it full credence. He testified:
'Q. Well, take up at the point where you first saw the boy in this case and tell us what happened? A. When I first saw him we had been down to look under a hickory nut tree to see if the squirrels had been out there, and we didn't find any signs and we started up a little ridge and when we got up to the top of the ridge I noticed this man standing and looking at me. And I says to this boy with me, 'There is a man hunting in here,', and he, at that time, turned and started walking away from me.
'I hollered at him four or five times and he kept walking, kept getting a little faster, and I said, 'Wait a minute, I want to talk to you.' So when he finally turned around, and as he did, he had his gun like this. And I says, 'What are you doing in here?' He said, 'I am hunting squirrels.' 'Well' I says, 'this land is posted'. 'You are not supposed to be in here'. He said, 'I am still hunting squirrels.' 'Well' I said, 'at least you know you don't own this property'. And he never answered me. He backed back behind a tree and held his gun like that, not quite on me but toward me.
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