Cain v. Skillin

• Decision Date: 21 March 1929
• Docket Number: 6 Div. 996.
• Citation: 121 So. 521,219 Ala. 228
• Parties: CAIN ET AL. v. SKILLIN.
• Court: Alabama Supreme Court

121 So. 521

219 Ala. 228

CAIN ET AL. v. SKILLIN.

6 Div. 996.

Supreme Court of Alabama

March 21, 1929

Rehearing Denied April 18, 1929.

Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.

Action for damages for assault and battery by Percy W. Skillin against Fred Cain and the Union Indemnity Company. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Charge jury could disbelieve all witness' testimony if they believed he was contradicted in material part held properly refused.

Charges 10 and 13, refused to defendants, are as follows:

"10. I charge you that if you believe that the witness Grady Chamblee had been contradicted in any material part of his testimony the jury would be authorized to disbelieve all the testimony of such witness."

"13. If the circumstances attending the shooting were such as to justify a reasonable man in the belief that he was in danger of great bodily harm or death, and that he could not retreat without adding to his peril, and if defendant believed such to be the case reasonably, he would be justified in shooting although he was not in actual danger and retreat would not have added to his peril; and if the defendant Cain acted under such circumstances the burden of showing that he was not free from fault in bringing on the difficulty is on the plaintiff."

F. D. McArthur, of Birmingham, for appellants.

Altman & Koenig, of Birmingham, for appellee.

FOSTER J.

Appellee brought this action in the circuit court against appellant Cain, a state law enforcement officer, and appellant Union Indemnity Company as surety on his official bond, charging that in the line and scope of his official duties he committed an assault and battery on him.

Some of the tendencies of the evidence necessary to be stated to understand the questions presented are: That plaintiff and two companions had been to a dance and drank liquor, and plaintiff was considerably under its influence; that he had a room at the Hillman Hotel, and he and his companions entered the hotel about 2 o'clock in the morning, and went up to the fourth floor, where his room was located. As he passed down the hall he kicked a dish on the outside of the door of a room, and began to curse loudly, and was quite boisterous. They went to his room, and he continued to curse and made much noise. He had begun to undress, when defendant, who was occupying a room with his wife and baby on the same floor, having been awakened and become partly dressed, went to plaintiff's room and knocked, and was invited in. Plaintiff testified that when Cain came to his door, after he stepped in over the threshold, he said, "How in the hell do you get this way? What in the hell do you mean?" That plaintiff jumped up and started after him, just as soon as he reached the door, Cain said, "Don't come any further, I am an officer;" that plaintiff took another step and Cain threw up his hand with a gun; that plaintiff, having no weapon, said, "Throw down your gun and I'll whip you like a man;" then Cain started shooting.

Defendant's evidence tended to show that he spoke to plaintiff, but not in an offensive manner, but plaintiff became greatly incensed and rushed at him, waving his hand, in which he held something bright, and he backed off down the hall telling plaintiff not to advance, which he repeated a time or two, but plaintiff continued to advance with hostile demonstrations, when he shot three times. Two of the shots took effect, and plaintiff was seriously and permanently injured, spent a large sum for treatment, lost one leg and much time from his employment, and was caused much suffering, etc. There was a judgment for plaintiff for $5,000, the penalty of the bond.

Appellant Union Indemnity Company earnestly insists that it was due the affirmative charge, which was refused by the circuit court. The basis of that contention is that there was no evidence justifying a fair inference that Cain was acting in the line and scope of his authority. The court charged the jury that they must be reasonably satisfied of this to find against the bonding company. A consideration of the facts must be had in the light of the law. The court, in charging the jury, read section 926 of the Code, which in effect provides that the law enforcement officers may act as such anywhere in the state, and at all times, and shall see that the laws of the state are enforced, and have the same authority as sheriffs to make arrests, and have the power to suppress crime, and execute the criminal laws, and therefore are conservators of the peace. Section 5135. It was the duty of such law enforcement officer to have pursued such reasonable effort as was necessary to suppress the disturbance, or to arrest the offender. He dressed and put on his belt with pistol in his scabbard, and went in search of the scene of the disturbance. There were others shown to occupy rooms on the same floor, but not shown to be officers. He was presumably the only officer on the floor, and charged with the duty to suppress this crime and execute all the criminal laws. He proceeded to where a crime was committed in violation of the state laws (public drunkenness and cursing in the hearing of a woman), and pursued a line of conduct which the jury could say had as its object the suppression of crime if not the arrest of the offender. His official person cannot be dissociated from his private person. He was within the line and scope of his authority if he was doing something in the furtherance of his duty to suppress crime or enforce the criminal laws, and was not solely impelled by motives that, wholly personal, or to gratify his own feelings or resentment. But, if he was acting in promotion of his duties, his conduct, though in gratification of his feelings or resentment, was within the line of his authority. Rochester-Hall Drug Co. v. Bowden (Ala. Sup.) 118 So. 674; Palos Coal & Coke Co. v. Benson, 145 Ala. 669, 39 So. 727; Gulf, M. & N. R. Co. v. Havard, 217 Ala. 639, 117 So. 223; Nat. Life & Acc. Ins. Co. v. Cruso, 216 Ala. 421, 113 So. 396; 39 C.J. 1283. The affirmative charge for the surety company is not due from the fact that the officer may have acted improperly in performing his duties. Such improper conduct is the gist of this action. As said in our recent case of Union Indemnity Co. v. Webster (Ala. Sup.) 118 So. 794, 800: "It is sufficient that he is acting, pretending or professing to do so, in the premises, under color of or by virtue of his office, and inducing others interested or affected thereby to believe he is so acting"-citing many authorities.

We think that to determine whether one, who is an officer, is acting under color of his office, where the facts do not clearly establish the issue without adverse reasonable inference, is one for the jury, and that in this case it was properly submitted to the jury.

On cross-examination of Will Harris, a witness for the plaintiff, and before defendants had offered any evidence, they proposed to prove that plaintiff was known to the witness to bear the reputation of being a quarrel-some, turbulent, and violent and dangerous man. The court sustained objection, and defendants excepted. After the wife of defendant had testified tending to show an overt act by plaintiff as evidence of self-defense by Cain, defendants again offered to make this proof, and the court sustained an objection.

In a criminal case, in order to give color to an attack on defendant, and as incidental to a claim of an overt act by the assaulted party as evidence of self-defense by defendant, and after there has been evidence of such overt act, and as tending to show who was the aggressor when that is in dispute, defendant may prove the character of his assailant as to violence, turbulence, blood-thirstiness, and the like. Roberts v. State, 68 Ala. 156; Green v. State, 143 Ala. 2, 39 So. 362; Griffin v. State, 165 Ala. 29, 49, 50 So. 962; Pate v. State, 162 Ala. 32, 50 So. 357; Lambert v. State, 208 Ala. 42, 93 So. 708; Smith v. State, 197 Ala. 193, 194, 72 So. 316; Watson v. State, 181 Ala. 53, 54, 61 So. 334. This is not permissible if defendant without question is the aggressor. Griffin v. State, supra; Green v. State, supra.

We have never had a case in Alabama of a civil nature where this question was presented, so far as we are aware. It has been often held that in civil cases defendant may not prove his good character as he may do in criminal cases. Drummond v. Drummond, 212 Ala. 242, 102 So. 112; Hancock v. Hullett, 203 Ala. 272, 82 So. 522; Lester v. Gay, 217 Ala. 585, 117 So. 211; Sharp v. Clopton (Ala. Sup.) 117 So. 647.

In the case of Pate v. State, supra, it is said that "defendant is presumed to know the general reputation of the deceased, as that means that it is generally known in the community." But defendant Cain testified that he did not know the plaintiff, and therefore we cannot presume that at that time he knew that plaintiff had a bad character for turbulence, etc.

In civil actions for assault and battery, when there is evidence of an overt act by plaintiff as evidence of self-defense by defendant, an exception to the rule in other civil cases seems to prevail in respect to evidence of plaintiff's character for violence, etc. The text of 2 Jones on Evidence (2d Ed.) p. 1231, states that under such circumstances defendant may make such proof. The same statement is made in the text of 5 C.J. 681, and in 2 R. C. L. 568, with the proviso added that such character has been brought to the knowledge of defendant prior to the assault. The texts of the three authorities cite the same cases, and they all assert that this is an exception to the general rule. An analysis of such cases discloses that Michigan is probably the leader in...