Cain v. Skillin, 6 Div. 996.

CourtSupreme Court of Alabama
Writing for the CourtFOSTER, J.
Citation121 So. 521,219 Ala. 228
Decision Date21 March 1929
Docket Number6 Div. 996.
PartiesCAIN ET AL. v. SKILLIN.

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. [121 So. 522]

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 [121 So. 523] 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...

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33 practice notes
  • In re Herring, Bankruptcy No. 94-00545-BGC-7. Adv. P. No. 94-00062.
    • United States
    • U.S. Bankruptcy Court — Northern District of Alabama
    • June 30, 1995
    ...225 Ala. 627, 630, 144 So. 834 (1932); Mount Vernon-Woodberry Mills v. Little, 222 Ala. 605, 608-609, 133 So. 710 (1931); Cain v. Skillin, 219 Ala. 228, 232, 121 So. 521 (1929); Ashworth v. Alabama Great Southern R. Co., 211 Ala. 20, 25, 99 So. 191 (1924); Bean v. Stephens, 208 Ala. 197, 19......
  • State v. Wilson, No. 46312.
    • United States
    • United States State Supreme Court of Iowa
    • June 19, 1945
    ...the Rogers' home and what Bolden said and did there gave him some knowledge of Bolden's aggressive disposition. See also Cain v. Skillin, 219 Ala. 228, 121 So. 521,64 A.L.R. 1029 et seq., and annotation; State v. Beird, supra, 118 Iowa 474-482, 92 N.W. 694. The admission of this testimony w......
  • Smith v. Civil Service Bd. of City of Florence
    • United States
    • Alabama Court of Civil Appeals
    • January 30, 1974
    ...fact in an alienation of affection action). The particular exception cited by the appellant arises from the case of Cain v. Skillin, 219 Ala. 228, 121 So. 521. In that case the plaintiff's reputation for violence was allowed to be shown as evidence by the defendant in an assault and battery......
  • Rich v. Cooper
    • United States
    • Supreme Court of Oregon
    • April 10, 1963
    ...--------------- 1 McCormick, Evidence § 155, p. 325 (1954). 2 Linkhart v. Savely, 190 Or. 484, 227 P.2d 187 (1951); Cain v. Skillin, 219 Ala. 228, 121 So. 521, 64 A.L.R. 1022 (1929); Mong Ming Club v. Tang, 77 Ariz. 63, 266 P.2d 1091 (1954); Brown v. Simpson, 293 Ky. 755, 170 S.W.2d 345 (19......
  • Request a trial to view additional results
33 cases
  • In re Herring, Bankruptcy No. 94-00545-BGC-7. Adv. P. No. 94-00062.
    • United States
    • U.S. Bankruptcy Court — Northern District of Alabama
    • June 30, 1995
    ...225 Ala. 627, 630, 144 So. 834 (1932); Mount Vernon-Woodberry Mills v. Little, 222 Ala. 605, 608-609, 133 So. 710 (1931); Cain v. Skillin, 219 Ala. 228, 232, 121 So. 521 (1929); Ashworth v. Alabama Great Southern R. Co., 211 Ala. 20, 25, 99 So. 191 (1924); Bean v. Stephens, 208 Ala. 197, 19......
  • State v. Wilson, No. 46312.
    • United States
    • United States State Supreme Court of Iowa
    • June 19, 1945
    ...the Rogers' home and what Bolden said and did there gave him some knowledge of Bolden's aggressive disposition. See also Cain v. Skillin, 219 Ala. 228, 121 So. 521,64 A.L.R. 1029 et seq., and annotation; State v. Beird, supra, 118 Iowa 474-482, 92 N.W. 694. The admission of this testimony w......
  • Smith v. Civil Service Bd. of City of Florence
    • United States
    • Alabama Court of Civil Appeals
    • January 30, 1974
    ...fact in an alienation of affection action). The particular exception cited by the appellant arises from the case of Cain v. Skillin, 219 Ala. 228, 121 So. 521. In that case the plaintiff's reputation for violence was allowed to be shown as evidence by the defendant in an assault and battery......
  • Rich v. Cooper
    • United States
    • Supreme Court of Oregon
    • April 10, 1963
    ...--------------- 1 McCormick, Evidence § 155, p. 325 (1954). 2 Linkhart v. Savely, 190 Or. 484, 227 P.2d 187 (1951); Cain v. Skillin, 219 Ala. 228, 121 So. 521, 64 A.L.R. 1022 (1929); Mong Ming Club v. Tang, 77 Ariz. 63, 266 P.2d 1091 (1954); Brown v. Simpson, 293 Ky. 755, 170 S.W.2d 345 (19......
  • Request a trial to view additional results

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