Terry v. Burford

• Decision Date: 17 April 1915
• Citation: 175 S.W. 538
• Parties: TERRY et al. v. BURFORD.
• Court: Tennessee Supreme Court

175 S.W. 538

TERRY et al. v. BURFORD.

Supreme Court of Tennessee.

April 17, 1915.

Certiorari to Court of Civil Appeals.

Action by Lawson Burford, administrator, against Z. T. Terry and others. Judgment for plaintiff, and defendants appeal to the Court of Civil Appeals, which affirmed a judgment as to Terry, but reversed as to the other defendants. On certiorari to the Supreme Court, judgment of the Court of Civil Appeals reversed, and that of the trial court affirmed.

Wm. A. Guild, of Nashville, for plaintiffs. Larkin E. Crouch and J. M. Anderson, both of Nashville, for defendant.

NEIL, C. J.

This action was brought in the circuit court of Davidson county to recover damages for the unlawful killing of Lawson Burford, Jr., son of the defendant in error. There were verdict and judgment for $3,500, and the plaintiffs in error appealed to the Court of Civil Appeals. There the judgment as to Terry was affirmed, but reversed as to the other plaintiffs in error; that court holding that the trial judge should have granted a peremptory instruction in favor of the latter. The case then came here by certiorari.

The facts are as follows:

Z. T. Terry was a special policeman appointed by the board of public works and affairs of the city of Nashville. He was one of many appointed by the city to perform duties for the protection of special private citizens who would pay for their services such sums as the officers and the parties might agree upon. The regular policemen of the city were employed and paid by the city. Private policemen, like Terry, were employed and paid by the citizens whose property they were detailed to protect, and were subject to the orders of those employing them.

The appointment was made pursuant to section 268 of Smith & McAlister's Digest of the Laws of Nashville. This section, after making provision for the appointment of a regular police force, and for their compensation by the city, continues:

"Provided, however, that in addition to the force above authorized to be appointed, the board of public works and affairs be and they are hereby authorized to appoint such additional policemen, not exceeding two hundred in number, as the board may deem necessary for special duty, as members of the metropolitan police force, the services of said such special policemen to be paid for by the firm, company, or corporation for whom they may be appointed. Such special policemen shall each give bond to the mayor and city council in the sum of one thousand dollars, conditioned for the faithful discharge of their duties, and for the use and benefit of any person who may be wrongfully damaged whether in person or property, by their action."

The regular policemen of the city are required to report to the police department every two hours. They also report in person, and keep in constant communication and close touch. But there is no rule requiring special policemen, or watchmen, such as Terry was, to report. Such special policemen make no reports to the department at all. It was not the custom for the police department to give special policemen any instructions, and no instructions were given by that department to Terry. The custom was for the board of public works and affairs to appoint such special policemen upon request of the persons who desired their special services, and Terry was so appointed.

The contract with Terry was signed by 60 odd citizens, and was in the following language:

                                 "Nashville, January, 1911
                

"We the undersigned hereby agree to employ Capt. Z. T. Terry as special night policeman to guard our property along the following route:

"Commencing at the corner of West End avenue and Twentieth street; thence north on Twentieth to Hayes street; thence west on Hayes to Vanderbilt avenue; thence north with Vanderbilt avenue to Patterson street; thence west on the south side of Patterson street to Twenty-Third avenue; thence south on Twenty-Third avenue to Church street; thence west on Church street to Twenty-Fifth street; thence south on Twenty-Fifth street to West End avenue; thence east on West End avenue to Twenty-Fourth avenue; thence south on Twenty-Fourth avenue two blocks; thence north on Twenty-Fourth street to West End avenue; thence east on West End avenue to the place of beginning.

"Said Z. T. Terry will begin his rounds of the above territory during the fall and winter months before dark each day, and continue the same until four o'clock a. m., or longer, if necessary. In the summer time he will begin his rounds by sundown and continue until broad daylight. In consideration of the above services we will each pay to Capt. Terry the sum of $1 per month, payable at the end of each month during the continuance of this agreement. Capt. Terry will make his headquarters during each night at ____, at which place he will report as near each hour as he can during the period of his watch for calls or instructions from the subscribers hereto."

Opposite each name subscribed was the residence number of such subscriber.

The territory in question covers about five blocks, is about one-half a mile long, and one-fourth of a mile broad. The houses are not all contiguous.

None of the plaintiffs in error who subscribed to the paper at any time gave instructions to Terry what to do, or in what way to discharge his duties, further than those embraced in the contract. Terry states that the place to which he reported, left blank in the contract, was the Broad street engine house; that the only purpose for which he ever reported there was to obtain information, if any of the subscribers had any information to impart.

The area covered by the contract was in the residence part of the city, and the property to be watched and guarded consisted of the residences of the several subscribers and their appurtenant property.

Owing to the insufficient number of men composing the police force of Nashville, at and before the time the contract with Terry was entered into, police protection in the neighborhood in question was very limited. The policemen assigned to that part of the city had more territory than they could cover. Just before Terry was employed, a number of houses in the neighborhood embraced in the contract had been entered, several burglaries had been committed, and much stealing had been going on. It was the existence of this state of affairs that caused the employment of Terry, to perform the services indicated in the contract.

Nothing was said concerning Terry's going armed, or the contrary, but the subscribers testify they supposed he was to be thus equipped as other policemen.

On the night of March 10, 1912, Z. T. Terry, while in the discharge of the duties imposed by the contract, entered on the premises of Mr. W. R. Cole, a party to the contract but not sued. While on Mr. Cole's premises Terry shot and killed Lawson Burford, Jr., Mr. Cole's chauffeur. Terry testifies that he had never seen the deceased before that night; that he had shadowed and traced two strange negroes into the back premises of Mr. Cole; that he saw Burford walk backwards and forwards in front of the back door of the basement of the dwelling house, and look around in a suspicious manner, and, believing him to be a person about to commit crime, he ordered him to throw up his hands; that Burford uttered a word of defiance and threw his hand behind him, as if to draw a pistol, and thereupon two other negroes drew close to him, whom he believed were the same persons he had traced into the premises, and, believing his life was in danger, he fired one shot into the body of Burford; that thereupon the other two fled, and he fired at them, but without effect; that Burford ran into the basement of the building, and he saw nothing further of him at the time. A colored man and woman who were in the basement, in the room of the woman, testified, in substance, that they heard some words just outside of the basement, and presently the door of the basement was unlocked and two persons entered; that one of them, who subsequently proved to be Terry, commanded Burford to knock on the woman's door, or open the door; that Burford replied that it was no use; that he lived there, and was Mr. Cole's chauffeur. Terry replied that that made no difference, to open the door; that if he did not he would kill him; that soon after this two or three shots were fired, and they went out and found Burford on the stairway leading from the basement to the upper part of the house in a dying condition, with the front of his shirt on fire. These witnesses testified that the language of Burford in his replies was mild and submissive.

The jury disregarded the evidence of Terry, indicating that he exercised the right of self-defense, and placed their verdict, without doubt, on the testimony of the two witnesses, the man and the woman referred to.

A motion was made in the trial court for peremptory instructions in favor of the defendants, who were subscribers to the contract, on the ground that the contract was several, not joint, and Terry was not acting as their agent, while he was protecting the house of W. R. Cole, also on the ground that the act of Terry in killing Burford was not in pursuit of his employment, but was, on the contrary, out of the scope of that employment.

The Court of Civil Appeals held that the peremptory instruction should have been given in behalf of the subscribers on both points.

1. Was the contract joint or several? In our opinion it was joint. It was signed by all the parties. It bound Terry to guard the property of all, during the whole of each night. It specified when his vigil should begin and when it should end. It required that he should make "rounds" of the territory, and that the "rounds" should continue throughout the night, with the exception only that they should be broken by reports each hour at "headquarters" (subsequently fixed at Broad street engine house), "for calls or instructions from the...