Klinkel v. Saddler

• Decision Date: 09 December 1930
• Docket Number: 40025
• Parties: OLIVE KLINKEL, Administratrix, Appellant, v. P. A. SADDLER et al., Appellees
• Court: Iowa Supreme Court

233 N.W. 538

211 Iowa 368

OLIVE KLINKEL, Administratrix, Appellant, v. P. A. SADDLER et al., Appellees

No. 40025

Supreme Court of Iowa, Des Moines

December 9, 1930

Appeal from Floyd District Court.--M. H. KEPLER, Judge.

This was an action by the plaintiff to recover from the defendant P. A. Saddler, the sheriff of Floyd County, damages for the wrongfully caused death of plaintiff's intestate. The National Surety Company, a corporation, was made a defendant on the theory that it had signed the sheriff's official bond, and therefore was liable to plaintiff in the premises to the extent of that obligation. There was a trial to a jury, which returned a verdict in favor of the defendants and judgment was entered accordingly. From this judgment the plaintiff appeals.

Reversed.

F. A. Ontjes and W. G. Henke, for appellant.

H. J. Fitzgerald and J. C. Campbell, for appellees.

KINDIG, J. MORLING, C. J., and EVANS, STEVENS, FAVILLE, ALBERT, WAGNER, and GRIMM, JJ., concur.

OPINION

KINDIG, J.

Olive Klinkel is the duly appointed, qualified, and acting administratrix of Donovan E. Klinkel's estate. She is the plaintiff-appellant. P. A. Saddler, during all the times herein named, was the duly elected, qualified, and acting sheriff of Floyd County, and the National Surety Company, during that time, was the surety on the sheriff's official bond. The sheriff and the Surety Company are the defendants-appellees. On the 8th day of May, 1927, the sheriff shot and killed appellant's intestate, Donovan E. Klinkel, at Charles City. To recover damages for that death, the present action was instituted. As said in the preamble of this opinion, a jury found against appellant on the facts, and judgment was entered accordingly. In order to reverse that judgment on this appeal, appellant assigns 22 errors, but we find it necessary to consider but two of them. Those errors which will be discussed relate to the court's instructions.

I. First, the appellant complains because the district court did not inform the jury that the burden was upon the sheriff to prove that he shot appellant's intestate in self-defense. Some confusion appears among the decisions of the various states in reference to this subject-matter. What the rule may be under other facts and circumstances, we do not now decide; but, under the record in this case, it is apparent that the sheriff had the burden of pleading and proving self-defense. Appellant, in her petition, stated as follows:

"Plaintiff [appellant] further states that, on or about the 8th day of May, 1927, the defendant P. A. Saddler [the appellee sheriff], while acting as sheriff of said county, and by virtue of his office as such sheriff, wrongfully and unlawfully assaulted plaintiff's intestate, Donovan E. Klinkel, with a deadly weapon, to wit, a pistol or revolver, and did then and there with said deadly weapon shoot a bullet into the body of said decedent, inflicting upon him a wound of which he shortly thereafter died. That the defendant [the appellee sheriff] P. A. Saddler, in committing the act aforesaid, was acting by virtue of his office as sheriff of said county. That said Saddler was acting without a warrant, and that, at the time of said assault, the said Donovan E. Klinkel was and had been guilty of no crime or misdemeanor or offense against the law and that the defendant Saddler was acting without reasonable grounds for believing that a felony had been committed."

It is not specifically stated in the petition that the sheriff shot appellant's intestate while attempting to arrest him. Nevertheless, the inference to be drawn from the petition is to that effect. Moreover, the appellant made statements in the pleading to indicate that the sheriff had no right, in any event, to lawfully arrest her intestate. Nothing appears in the petition to suggest that the sheriff acted in self-defense while making an arrest.

By way of answer, the sheriff admitted his official capacity, the representative capacity of the appellant, and the suretyship of the National Surety Company. Furthermore, the sheriff conceded that he, by the use of a deadly weapon, used in a deadly and dangerous way, shot and killed the appellant's intestate, Donovan E. Klinkel, on the date named in the petition. Not being content to rely upon a general denial of appellant's petition, and wishing to go further, the sheriff affirmatively answered that he was making a lawful arrest, and killed in self-defense. That part of the sheriff's answer setting forth the affirmative defense reads in this manner:

"This defendant [the appellee sheriff] for further answer states that, on the 8th day of May, 1927, while acting as sheriff of Floyd County, Iowa, and acting in his official capacity as such, he received information that his attention was needed at or near Oak Park, Charles City, Iowa. That, upon arriving at Oak Park, he found decedent and eight other persons with him, including two women, assembled in Oak Park for unlawful purposes, having liquor in their possession, and two of them being then intoxicated, one of them having exposed his person. That defendant placed all of said parties under arrest, including decedent, and told them to stay where they were. The decedent resisted arrest, and, in company with the two women and another man, attempted to leave Oak Park by starting his car towards this defendant. That this defendant stopped said car, and there upon decedent sprang from his car, saying to the defendant, 'Now is where I get you, you God-damned son-of-a-bitch,' and proceeded to rush defendant, and advanced towards him in a crouched position and threatening manner, using vulgar and profane language. This defendant pointed his revolver at said decedent, retreating a few paces, and called upon said decedent to halt, that he was under arrest, and again called on him to halt, that he was under arrest, and told him and warned him, if he did not halt, he would shoot. That instead, decedent continued to rush and advance towards this defendant in a crouched position and threatening manner. That this defendant retreated a second time, three or four steps, again calling on said decedent to halt, or he would shoot. Said decedent kept advancing towards this defendant in the aforesaid manner until within about 5 feet from him. That this defendant, then believing that his life was in danger, shot said decedent, in self-defense."

Under those issues, appellant's witnesses sustained her petition, while those testifying for the appellees substantiated the affirmative defense set forth in the answer. Nothing appeared in the testimony of appellant's witnesses which in any way suggested or showed that the sheriff shot in self-defense. Rather than so doing, that evidence negatived any such idea. On the other hand, the sheriff's evidence supported the affirmative allegations of his answer, and indicated that he shot in self-defense, while lawfully arresting appellant's intestate, Donovan E. Klinkel.

When instructing the jurors, the district court told them that it was incumbent upon appellant to prove the allegations of her petition, but said nothing about appellees' duty to substantiate the affirmative allegations of the answer. Regarding this, appellant complains. Due to the arrangement and statement of the issues in the court's instructions, the laymen-minded jurors naturally would be persuaded that the burden of proving no basis for the self-defense was upon the appellant. So there is here presented a case of erroneous instruction, rather than non-instruction, upon the subject. Manifestly, under the circumstances here disclosed, the duty of proving self-defense was upon the sheriff. He asserted self-defense in order to affirmatively avoid appellant's cause of action. Consequently, the obligation was upon him to carry that issue. Cobb v. Owens, 150 Ala. 410 (43 So. 826, 827); Bourne v. Richardson, 133 Va. 441 (113 S.E. 893, 900). See, also Goold v. Saunders, 196 Iowa 380, 194 N.W. 227; Petrie v. Cartwright, 114 Ky. 103 (70 S.W. 297); Love v. Bass, 145 Tenn. 522 (238 S.W. 94); Graham v. State, 31 Okla.Crim. 125 (237 P. 462).

Especially is that true when, as here, first, the killing was by the use of a deadly weapon, utilized in a deadly and dangerous way, and second, the petition relied upon by appellant did not suggest in any way that the sheriff acted in self-defense. See Goold v. Saunders (196 Iowa 380, 194 N.W. 227), supra, and State v. Phillips, 119 Iowa 652, 94 N.W. 229. Appellees at this point rely upon Welch v. Creech, 88 Wash. 429 (153 P. 355). That case, however, when properly analyzed, is not necessarily inconsistent with the rule here announced. There the Washington court, in effect, conceded that the burden of proof in the first instance was upon the plaintiff, and then launched into an extensive discussion for the purpose of distinguishing between the "burden of proof" and the "duty to go forward with the evidence." Because the "res gestae" showed the defendant's self-defense, the Washington court said that he, regardless of the burden of proof, could rely upon such facts and surrounding circumstances. Nothing in that case, however, indicates that, under the pleadings and circumstances of this record, the burden of proof, in the respect under consideration, is not upon the appellees.

A killing caused by the use of a deadly and dangerous weapon, used in a deadly and dangerous manner, even in a criminal case, when unexplained, raises the presumption of murder. State v. Leib, 198 Iowa 1315, 201 N.W. 29 (local citation 1322). In the Leib case we said:

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