
    8334
    HAYNES v. SULLIVAN.
    Tort — Damages.—A police officer who shoots off his pistol in the air merely to frighten a fugitive on horse back into submission to arrest and who calls to others to arrest him but not to shoot, is not responsible for injuries inflicted on the horse by others shooting in assisting to arrest the fugitive, there being no concert of action between the officer and the citizen shooting the horse.
    Before Memminger, J., Anderson.
    Reversed.
    Action by S. A. Haynes against P. W. Sullivan and Van B. Martin in court of magistrate L. M. Wilson. Prom order on Circuit affirming judgment of magistrate, defendant, Sullivan, appeals.
    
      Messrs. Hood & Sullivan, for appellant,
    cite: Contributory negligence could not arise in this case: 73 S. C. 500. This Court may review the testimony to determine if there is any evidence to sustain the verdict: 65 S. C. 517; 73 S. C. 83; 91 S. C. 6.
    
      Mr. A. H. Dagnail, contra,
    oral argument.
    October 8, 1912.
   The opinion of the Court was delivered b)'-

Mr. Justice Woods.

The plaintiff recovered judgment in the magistrate’s court against the defendants, Sullivan and Martin, for damages for shooting his horse. On appeal by Sullivan to the Circuit Court the judgment was affirmed. Sullivan alone appeals to this Court, his main contention being that the proof was conclusive that he did not shoot the horse nor induce any one else to do so.

Sullivan, acting as a police officer in the town of Honea Path, undertook to arrest a negro named George Jones, who was riding the horse, in the belief that he was transporting contraband liquor. To prevent Jones from getting away and to frighten him into submission and arrest, Sullivan shot his pistol in the air, making no effort whatever to hit Jones or the horse. The shot did not hit Jones and Sullivan called out, “Arrest the negro, but don’t shoot,” The defendant, Martin, who was some distance off, shot twice, and the horse was found to be struck.

We think it evident that a police officer who shoots off his pistol merely for the purpose of frightening a fugitive into submission to arrest is not responsible for injuries inflicted by others who shoot without justification on the officer’s call to arrest the fugitive, but not to shoot. There was no evidence that Sullivan and Martin were acting in concert or even that Martin heard Sullivan’s shot and was influenced by that to shoot the horse.

Reversed.  