Tucker v. Gurley

• Decision Date: 19 October 1936
• Docket Number: 32323
• Court: Mississippi Supreme Court
• Parties: TUCKER et al. v. GURLEY et al

170 So. 230

176 Miss. 708

TUCKER et al. v. GURLEY et al

No. 32323

Supreme Court of Mississippi

October 19, 1936

Division A

Suggestion Of Error Overruled November 30, 1936.

APPEAL from circuit court of Union county, HON. T. H. MCELROY Judge.

Action by Mrs. Evelyn Gurley and others against Leslie Tucker and others. From the judgment, the defendants appeal. Reversed and remanded.

Reversed and remanded.

L. A. Smith, Sr., of Holly Springs, for appellants.

It has long been the law, and obviously it should be the law, that where there are both parties corporate and individual to a lawsuit the corporation should not be permitted to be singled out for attack, or undue emphasis be permitted to be put upon the liability of a corporation, especially where the judgment would be joint, as in this case. It is common knowledge that when this corporation is an insurance company and its bond or policy is being sued on, so that jurors gain the impression or feeling that the individuals will not have to pay any judgment they may render, but it will fall upon the insurance corporation to pay, and that having received a premium for this service it is natural justice that they be required to pay, regardless of the merits of the controversy and that therefore not justice but a mistaken idea of compensation prevails in the minds of jurors, and a fair trial is impossible.

Herrin v. Daly, 80 Miss. 340, 31 So. 790, 92 Am. St. Rep. 605.

Subject to the exception that the fact of indemnity may be shown in the record by the pleadings and the exhibit of the obligation where the insurance company is a party to the trial, it is held generally to be highly improper for plaintiff to inject such matter into the case and before the jury either directly or indirectly, more particularly, where his action is willful or without legitimate cause, as, for example, through questions by his counsel on examination or cross examination, or by offers of proof, or through the arguments of his counsel.

64 C. J., 105, sec. 111; Rosummy v. Marks, 246 P. 723, 118 Ore. 248; International Co. v. Clark, 127 A. 647, 147 Md. 34.

This judgment is void in its entirety, for a judgment against two or more parties defendant is an entirety and if void against one is void against all.

Comentz v. Bank of Commerce, 85 Miss. 662, 32 So. 35; Graves v. Williams, 10 Miss. 286; Ayer v. Bailey, 8 Miss. 688; Demors v. Camp, 6 Miss. 516.

A judgment rendered against a party after his death is utterly void and subject to collateral attack.

Weiss v. Aaron, 75 Miss. 138; Richter v. Reaumont, 71 Miss. 713, 16 So. 293; Young v. Pickens, 45 Miss. 553; Tarleton v. Cox, 45 Miss. 430; Miss. R. Co. v. Wynne, 42 Miss. 315; Parker v. Home, 38 Miss. 215; Lee v. Gardner, 26 Miss. 521.

A judgment erroneous as to one defendant is so as to all.

Mhoon v. Colment, 51 Miss. 60.

I submit that the admission of the evidence of putting handcuffs on Glenn Gurley in a suit for the killing of Lloyd Gurley violates two rulings by the trial court on objections by appellants to the injection of such testimony, those against under prejudice and confusion of issues, and that such evidence was not relevant or competent in this case. It was, of course, used to prejudice the jury against the defendants in this case, although the handcuffs remained on him just a very small time, and were immediately removed by Deputy Overton on the request of Glenn Gurley that they be removed. The defense should not have been prejudiced and handicapped in the trial of this case, and their efforts to get a fair trial, by admitting such evidence in this particular case.

The court gave these two instructions for the plaintiff:

"The court charges the jury for the plaintiff that while it is true that the burden is upon the plaintiffs to prove every material allegation of the declaration, this does not mean that every material allegation must be proved beyond all reasonable doubt, but only by a greater weight of the evidence; and if the jury after considering all the evidence in the case and the instructions of the court are satisfied that at the time Lloyd Gurley was killed the defendants were not in actual danger of losing their lives or suffering some great bodily harm at the hands of Lloyd Gurley, the jury should find its verdict for the plaintiffs."

"The court charges the jury for the plaintiff that if a misdemeanor is committed in the presence of or against the person of an officer, the officer may arrest said disdemeanant without a warrant, but the law does not justify the taking of the life of a misdemeanant for the commission of a misdemeanor in the presence of or against the person of an officer, and if the jury believes from all of the evidence in this case that Lloyd Gurley was shot and killed by the defendant Overton for the commission of a misdemeanor against the person of Deputy Tucker, at a time when said Tucker and Overton were not in actual danger of losing their lives or of suffering some great bodily harm at the hands of Lloyd Gurley, then the jury should find for the plaintiffs."

These two charges take away in a great measure the right of self defense, against reasonably apparent danger entirely.

The entire defense is based upon the right of self-defense by Tucker, and defense of Tucker by Overton in the case of Lloyd Gurley, and yet these instructions are not correct guides to the jury, further, because they omitted to save to Overton the right to shoot in defense of the life or body of Tucker, on reasonable appearances of imminent and impending danger to Tucker from the attack of Lloyd Gurley. This element of the case is cut out.

However, the real vice in these instructions is instructing the jury that the danger must have been actual to justify self defense or defense of each other by the Deputies Tucker and Overton.

Blaylock v. State, 31 So. 105, 79 Miss. 517.

The defendant in any particular case judges at his peril, and takes the risk of the juries finding that judgment to be reasonable, such an apprehension as a man of average courage would, under the circumstances, have entertained. These charges took away from those defendants the right to have the jury pass on whether their "judgment was reasonable," because they told the jury the danger must be actual.

Patterson v. State, 23 So. 647, 75 Miss. 670; Elerbee v. State, 30 So. 57, 79 Miss. 10.

Our Supreme Court has condemned these instructions definitely, positively and unequivocally in the case of Goodwin v. State. 19 So. 712, 73 Miss. 673.

Johnson v. State, 30 So. 79, 79 Miss. 42; King v. State, 23 So. 766; McCrory v. State, 25 So. 671; Waller v. State, 44 So. 825, 91 Miss. 557.

Where one's life is in real or apparent danger at the hands of another, and he believes it, he has a right to shoot to kill.

McNeal v. State, 76 So. 625, 115 Miss. 678; Boykin v. State, 38 So. 725, 86 Miss. 481; Regan v. State, 87 Miss. 422, 39 So. 1002.

Fred B. Smith, of Ripley, for appellants.

The court erred in sustaining the application for a change of venue.

It is the fixed policy of law in Mississippi that a public official shall not be sued out of the county of his household and residence, and if sued out of such county, he has a right to carry the action back to the county of his household and residence. This policy of the law is fixed because of the danger which might arise, in carrying public officials away from the county where their duty requires them to be and compel them to contest litigations brought against them in some other county. This provision is found in section 495 of the Mississippi Code of 1930. Of course, the same policy which would prohibit a public official from being sued out of the county of his household and residence, and the county where his duties required him to be, would likewise prevent an official so sued from having his cause removed and the venue changed to another county.

The statute of the state of Mississippi specifically declares that the position held by a deputy sheriff is "an office," and therefore a deputy sheriff is a public officer, as referred to in section 495, Code of 1930.

Section 3310, Code of 1930.

Again in section 3312 of the Mississippi Code of 1930 we find that the statute gives the sheriff a remedy against a deputy sheriff for a "default in office."

Not only has the statute referred to a deputy sheriff as an officer, but our Supreme Court has specifically held that a deputy sheriff is a public officer.

State ex tel. Baker v. Nichols, 106 Miss. 429; State ex rel. Brown v. Christmas, 88 So. 881; Railroad Co. v. Bolding, 69 Miss. 263; 67 C. J. 78.

The circuit court of Union county erred in trying, or undertaking to try this cause without a certified copy of any order from the circuit court of Marshall county, changing the venue of this action to the circuit court of Union county.

Sections 500, 501 and 502 of the Mississippi Code of 1930; Saunders v. Moss, 3 How 101.

The court erred in proceeding with the trial of this cause without the same being revived or dismissed as against R. F. Dancy, who had died since the institution of said suit.

The verdict of the jury in this cause was unintelligible.

The court erred in refusing to permit the witness Coyle to testify as to threats by Lloyd Gurley against Butler Overton.

Hendrix v. State, 161 So. 151; Muse v. State, 130 So. 693, 158 Miss. 449; Cartee v. State, 159 So. 618, 162 Miss. 263; Burks v. State, 67 So. 367, 101 Miss. 87.

We respectfully insist that not a single case has been cited by appellee to the effect that an instruction depriving a defendant of the right to defend himself on reasonable appearances of danger is not reversible error. We canot conceive of any instruction that could have been more damaging...