Summary
In Moore and Oliver, only two actors were involved as potential sources of harm and the appellate court accepted as established facts that both fired negligently, that both shot in the direction of the victim, and that injury was caused by a missile originating from one weapon or the other.
Summary of this case from Burton v. WallerOpinion
No. 33141.
April 4, 1938. Suggestion of Error Overruled April 18, 1938.
1. ASSAULT AND BATTERY.
Officers may not shoot fleeing misdemeanants to arrest them either on warrants or for crimes committed in their presence.
2. TORTS.
Joint tort-feasors may be sued jointly or individually, and liability may be joint or several.
3. ASSAULT AND BATTERY.
In action against one constable for shooting plaintiff while fleeing from place where contraband beer was being unloaded from an automobile, where it was admitted that constable sued and another constable both shot at plaintiff so that they could arrest him, instructions that plaintiff could not recover unless preponderance of evidence showed that constable sued fired shot inflicting injury were erroneous, since each constable was liable regardless of which one fired shot inflicting injury, and it was not necessary to prove which constable fired that shot.
APPEAL from the circuit court of Itawamba county; HON. THOS. H. JOHNSTON, Judge.
J.S. Finch, of Booneville and J.D. Finch, of Iuka, for appellant.
Tort-feasors may be sued singly, jointly, individually, or all combined.
62 C.J. 1131, sec. 44; 26 R.C.L. 13, sec. 12; Westerfield v. Shell Petroleum Corp., 161 Miss. 833, 138 So. 561; Saw Mill Construction Co. v. Bright, 116 Miss. 491, 77 So. 316; Waterman-Fouke Lbr. Co. v. Miles, 135 Miss. 146, 99 So. 759; Oliver v. Miles, 144 Miss. 852, 110 So. 666, 5 A.L.R. 357; I.C.R.R. Co. v. Clark, 85 Miss. 697, 38 So. 97.
Tort-feasors are jointly and severally liable, and are not entitled to contribution between themselves, and can therefore be sued alone, and judgment taken against one joint tort-feasor individually.
Thomas v. Rounds, 161 Miss. 713, 137 So. 894; Miller v. Phipps, 161 Miss. 564, 137 So. 479.
Appellee Foster and Constable Grissom, at the time of the shooting of appellant, were in pursuit of a common purpose, to-wit: attempting to arrest fleeing misdemeanants. In firing their pistols, as testified to by these parties, each did an unlawful and negligent act. They were jointly engaged in an unlawful enterprise when so firing their guns in attempting to arrest a misdemeanant. The firing of their pistols under such circumstances was negligence per se.
Johnson v. Cunningham, 107 Miss. 140, 65 So. 115.
Appellee Foster contends that he and Constable Grissom were not firing directly at appellant, but had their pistols elevated and were firing in the air over appellant's head. This does not relieve appellee Foster and his joint-feasor, Grissom, of liability for resulting injuries, for the highest degree of care is exacted of persons handling firearms.
Cooley on Torts (3 Ed.), 1232; Johnson v. Cunningham, 65 So. 118.
Appellee Foster and Constable Grissom were in pursuit of a common purpose at the time of the injuries inflicted upon appellant, to-wit: attempting to arrest appellant and others. Each officer committed an unlawful and negligent act in shooting a pistol while so engaged. These officers were acting in concert while so firing their pistols and were, at the time of the injuries to appellant, jointly engaged in the unlawful enterprise of shooting at a fleeing misdemeanant. Regardless of which one of the two officers actually fired the shot that injured appellant, each is liable for the resulting injuries.
Oliver v. Miles, 144 Miss. 852, 110 So. 666.
I.L. Sheffield, of Fulton, for appellees.
Where several persons acting in concert engage in a common unlawful enterprise all are answerable for any injury done by either, except in the case of officers acting under color of their offices. Where two or more are acting lawfully together in the furtherance of a common lawful purpose, one is not liable for the unlawful act of another, done in furtherance of the common purpose, without his concurrence. The proof shows in this case that these men were engaged in a lawful enterprise. They were attempting to apprehend parties violating the criminal laws of the state. There was no concert of action. Each officer was attempting to frighten these parties and if Jack Grissom fired the shot that inflicted the injury John Foster is not liable because in the beginning it was a lawful enterprise.
26 R.C.L. 767, sec. 15.
Where several persons act separately and independently, and not in concert, one is not liable for all the damage suffered by another by their separate torts. Each is liable only by their separate torts. Each is liable only for the damage done by his own act, to which rule no exception is created by the difficulty or impossibility of separating the damage.
26 R.C.L. 763, sec. 13.
This announcement of the law is referred to by counsel for appellants and I submit is controlling and since he sued John Foster and alleged that John Foster inflicted the injury and not that he did it by concert with Jack Grissom that he has wholly precluded himself and he is bound by the judgment of the jury. The jury was told that unless they believed from a preponderance of the evidence that John Foster inflicted the injury they should return a verdict for him. They so returned their verdict. I submit that the appellant is bound thereby.
In the case at bar it is lawful to arrest people for violating the law; they were therefore not in an unlawful enterprise and the rule announced in 26 R.C.L., pages 763 and 764, governs and that rule is that each is liable only for the damage done by his own act and that text states that there is no exception to that rule.
If two people are doing a thing which is unlawful in itself, acting in concert, then they are joint tort-feasors, and perhaps one is liable for the action of the other; and if the suit is brought so as to base it upon that ground then such verdict would be proper but in the case at bar the declaration is not founded upon any unlawful action of Jack Grissom nor is it charged that they were allied in an unlawful enterprise. They were in a lawful enterprise and someone did an unlawful thing, shot this plaintiff. The jury said by their verdict that Foster did not do it. I submit under the pleadings he and his bondsmen can not be held liable.
Arthur Moore, appellant, brought an action against John Foster, one of the appellees, a constable of Itawamba county, for wrongfully and negligently shooting appellant on or about July 15, 1934. On said date appellant and some other young men were parked in an automobile on a public road near Kirkville, in Itawamba county, and had some beer which, at that time, was not legal in that county. It seems that appellee Foster and Jack Grissom, another constable, having received information that there might be trouble, had secreted themselves near the place where the shooting occurred, while a deputy sheriff was farther down the road in his car; that seeing the unloading of the contraband beer, they ran from their place of hiding, and upon the approach of the officers, the appellant, and some of the other young men, ran from the scene, and as they ran Foster and Grissom started after appellant and others firing their pistols concertedly in seeking their arrest. As appellant did not stop, these officers in firing at him hit his arm, breaking it. These officers testified that their purpose was to arrest appellant, and that they shot at an elevation not intending to hit him, but only to frighten him into stopping.
According to the testimony for the appellant, Foster fired and Grissom had turned back to the car for the purpose of arresting the others, while the testimony of Foster and Grissom showed that they were firing at the same time, and that Foster did not continue shooting after Grissom turned back to the car.
It is not shown that these officers had warrants for these parties, but that is immaterial, as officers are not permitted to shoot fleeing misdemeanants for the purpose of arrest, either upon warrants, or for crimes committed in their presence. Brown v. Weaver, 76 Miss. 7, 23 So. 388, 42 L.R.A. 423, 71 Am. St. Rep. 512; State, to Use of Johnson v. Cunningham, 107 Miss. 140, 65 So. 115, 51 L.R.A., (N.S.), 1179.
It was contended by the appellees that there could be no recovery unless it was shown by a preponderance of the evidence that the shot fired by Foster inflicted the wound on appellant. Foster was sued alone, and Grissom and the deputy sheriff were not joined in the suit.
It will be seen from the statement that Foster and Grissom were acting in a common purpose in seeking the arrest of the appellant, and each negligently and wrongfully fired at the fleeing appellant. It has long been settled in this state that joint tort-feasors may be sued jointly or individually, and that liability may be joint or several. Westerfield v. Shell Petroleum Corporation et al., 161 Miss. 833, 138 So. 561; Sawmill Const. Co. v. Bright, 116 Miss. 491, 77 So. 316; Waterman-Fouke Lumber Co. et al. v. Miles, 135 Miss. 146, 99 So. 759; Oliver v. Miles, 144 Miss. 852, 110 So. 666, 50 A.L.R. 357, and Illinois C.R.R. Co. v. Clarke, 85 Miss. 691, 38 So. 97. In the case of Oliver v. Miles, supra, the facts are very much in point here. There Oliver and one Shamburger were hunting birds and a covey flew across the public road. Both fired at this covey across the highway, and Miles, who was traveling on the highway, was wounded. He was unable to tell which one shot him, and the court there held that Oliver and Shamburger were jointly and severally liable, and that Miles was entitled to recover against either or both.
Under the authorities above cited, Foster and Grissom were each liable, regardless of which one of the pistols used hit appellant.
Instruction No. 1, complained of by the appellant, told the jury that before they could return a verdict against the defendants they should be convinced by a preponderance of the evidence that John Foster shot and thereby inflicted the injury, and if not so convinced, it was their sworn duty to return a verdict for defendants.
Instruction No. 2 charged the jury for the defendants that: "John Foster, one of the defendants in this case, is not liable for the acts of any other man, and unless the proof convinces you by the preponderance thereof, that he and not some other, fired the shot that inflicted the injury, then it is your sworn duty to return a verdict in favor of the defendants."
Instruction No. 3 charged the jury for the defendants that if "you should return a verdict against the defendants, it should be for only such sum that you have been convinced by a preponderance of the evidence will compensate for the injury, but the Court says to you, in this connection, that you can not find against the defendants for any sum unless you are convinced by a preponderance of the evidence that John Foster fired the shot that inflicted the damage."
These instructions are erroneous, as the parties, according to their own testimony, were engaged in a common enterprise, and each committed the negligent and wrongful acts in carrying out their common enterprise. It was not necessary to prove which one inflicted the wound.
The judgment of the court below will therefore be reversed, and the cause remanded for a new trial in accordance with the principles above announced.
Reversed and remanded.