Wells' Administrator v. Lewis

Decision Date26 March 1926
Citation213 Ky. 846
PartiesWells' Administrator, et al. v. Lewis, et al.
CourtSupreme Court of Kentucky

1. Sheriffs and Constables. — Whether sheriff was negligent in killing bystander while pursuing and shooting at another in a crowd at night held for jury.

2. Death — Widow and Children of Bystander, Killed by Sheriff Shooting at Another, May Bring Action for Damages Under Statute (Ky. Stats., Section 4). — Widow and infant children of bystander, killed by sheriff pursuing and shooting at another, may bring action for damages against sheriff, under Ky. Stats., section 4, authorizing such action where killing results from careless, wanton, or malicious use of firearms.

3. Death — Personal Representative of Bystander, Killed by Sheriff Shooting at Another May Bring Action, where Widow and Children Fail to do so (Ky. Stats., Sections 4, 6; Constitution, Section 241). — Where widow and children of deceased bystander, killed by sheriff who was shooting at another in crowd, failed to prosecute action for damages against sheriff, under Ky. Stats., section 4, personal representative of deceased could bring such action, under section 6, similar to Constitution, section 241, though primarily right of action was in widow and children.

Appeal from Muhlenberg Circuit Court.

WILIKINS & SPARKS for appellant.

EAVES & SANDIDGE and T.O. JONES for appellees.

OPINION OF THE COURT BY JUDGE SAMPSON

Reversing.

While pursuing and shooting at one Simms in a crowd at night, appellee, Lewis, at the time sheriff of Muhlenberg county, unintentionally shot and killed Earl Wells, and this suit, originating in the Muhlenberg circuit court, is by Wells' Administrator against the sheriff and his bondsmen, Fidelity and Deposit Company of Maryland, to recover damages for the wrongful death of Wells under section 6 of the statutes. At the conclusion of the evidence for the plaintiff the trial court directed the jury to find and return a verdict for the sheriff and his sureties, and this was done. Judgment being entered in accordance with the verdict, the administrator of Wells appeals.

The evidence shows that a crowd had gathered at night at a country schoolhouse to attend an ice cream supper, and that Sheriff Lewis was on hand for the purpose of preserving order, and especially to seek out and apprehend bootleggers, if any should appear upon the scene. Shortly after the sheriff arrived he noticed one Simms behind the schoolhouse with whiskey, and attempted to arrest him, but Simms fled through the crowd, the sheriff in pursuit, calling to him to halt. As they ran through the crowd the sheriff, pistol in hand, fired a shot in the direction of the fleeing culprit, the bullet taking effect in the head of Wells, who was standing at an automobile with his family not far from the point where Simms passed in his flight from the sheriff. Wells died instantly. The answer of the sheriff denied negligence on his part in firing the shot, and in a second paragraph pleaded "that the decedent, Earl Wells, came to his death at the time and place complained of in the petition solely as the result of an unavoidable accident and casualty." As the case must be reversed for a new trial we will refrain from a further discussion of the facts, what we have said, we think, being sufficient to make the question of the sheriff's negligence one for the jury. While the judgment does not indicate on what grounds the court sustained the motion for a directed verdict for the sheriff and his surety, we assume from the statements in brief of counsel it was because the court was of opinion that the administrator of Wells could not maintain the action, when it was proven that the deceased left a wife and some infant children. As the death was the result of the use of firearms we think it will be admitted by all that the action might have been brought and maintained by the widow and infants, under section 4 of the statutes, in part reading: "The widow and minor children, or either or both of them, of a person killed by the careless, wanton or malicious use of firearms, . . . not in self-defense, may have an action against a person who committed the killing and all others aiding or promoting, or any one or more of them." Certainly the action may have been maintained under section 6 by the personal representative, which provides: "Whenever the death of a person shall result from an injury inflicted by negligence or wrongful act, then in every such case, damages may be recovered for such death from the person or persons, company or companies, corporation or corporations, their agents or servants, causing the same, . . . and the action to recover such damages shall be prosecuted by the personal representative of the deceased," when the widow and infants failed to sue. This section also provides for distribution of the amount recovered in such action between the widow and children of the deceased. Section 6 of the statutes reads much like section 241 of the Constitution, which says:

"Whenever the death of a person shall result from an injury inflicted by...

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