Pike v. Eubank

• Decision Date: 16 January 1956
• Docket Number: No. 4456,4456
• Citation: 90 S.E.2d 821,197 Va. 692
• Court: Virginia Supreme Court
• Parties: GEORGE LESTER PIKE v. WALTER E. EUBANK AND WALTER S. SCOTT Record

Page 821

90 S.E.2d 821

197 Va. 692

GEORGE LESTER PIKE v. WALTER E. EUBANK AND WALTER S. SCOTT

Record No. 4456.

Supreme Court of Appeals of Virginia

January 16, 1956.

Satterfield, Anderson & Blanton, for the plaintiff in error.

Rooke, Merhige & Cole and D. J. Esposito, for the defendants in error.

JUDGE: MILLER

MILLER, J., delivered the opinion of the court.

On January 16, 1954, about one o'clock a.m., while under arrest for a misdemeanor, George Lester Pike received painful lacerations, wounds and abrasions upon his head and face. He was at the first police station in the city of Richmond in the custody of police officers Walter E. Eubank and Walter S. Scott when he received the injuries. In his action for damages filed against the officers, he charged them with assault and battery and alleged that the injuries had been wrongfully inflicted upon him by the defendants.

In their written answer and grounds of defense, both officers denied the charge and alleged that Pike was accidentally hurt as a direct result of his own misconduct.

The trial was had before a jury. At the conclusion of all the testimony, the court struck the evidence as to defendant Eubank but allowed the jury to consider the evidence as it pertained to defendant Scott. A verdict was returned in favor of both defendants, and to the judgment entered thereon, we granted writ of error.

Summarized, the assignments of error are that the court erred (a) when it struck the evidence as to Eubank; (b) in the admission and rejection of evidence; and (c) in the giving and refusal of certain instructions upon submission of the case to the jury as to Scott's liability.

The first question to be decided is: Did the evidence justify submission of the case to the jury on the issue of whether or not defendant Eubank was liable? A determination of this question requires that the pertinent evidence be stated in detail.

On the evening of January 15, 1954, a party and dance for employees of a local manufacturing company was held at Tantilla Gardens in the city of Richmond where a ball room and amusement center are maintained. It was attended by several hundred employees, their consorts and friends. Pike, his wife and four other couples made up a group seated at one of the tables around the dance floor. During the evening Pike and others partook of intoxicants and about midnight an altercation arose between him and other men. Two off-duty police officers, employed by the company to keep order, observed Pike's conduct and concluded that he was drunk. He was arrested by these officers, escorted from the building, and taken to first police station by two other on-duty officers. Upon arrival at the station he was turned over to Scott whose duties were to receive, search and finger print prisoners, and aid in their incarceration. Some money was removed from Pike's pocket by Scott and placed on the desk in front of Sergeant Childress, who was then booking Pike on the charge of drunkenness.

Also present at the station was Walter E. Eubank, who was assisting Sergeant Childress in the booking and incarceration of prisoners.

In his testimony Pike said that he did not remember all that happened during that evening and night but he did remember being removed from the Tantilla ball room by two officers. Though he could not recall being transported to the station in the police wagon or being taken into the station, yet he said that he did remember 'what happened when he got in there. ' He gave this account of how he was injured:

'A. The only thing I can remember that happened at the police station is that the man got my arms behind me and I remember glancing up and out of the corner of my eye I saw him coming down on my head with the butt of the pistol, and the only other thing I remember is someone said, 'Hit the damn rascal again,' and another thing I was picked up off the floor and I came to enough to notice that blood had flowed all around me and that is all I remember about it.'

When cross-examined about the identity of the man who was holding his arms when he was struck and as to who actually hit him with the pistol, Pike testified as follows:

'Q. I believe, Mr. Pike, you have described to the best of your recollection what occurred at the police station. Do you recall or can you describe the appearance of the man who was holding you or the person whom you said came down on your head with a pistol butt?

'A. Well, I couldn't describe the man that had my arms behind me, but the man that hit me with a pistol was a short, gray-haired man that wore glasses.

'Q. I point to this man right over here wearing glasses (indicating the defendant Scott) and ask you if that is the gentleman to whom you are referring?

'A. Yes, sir, it looks like him.

MR. MERHIGE: May I ask the witness to repeat the answer? I didn't catch it.

'A. (Continued) I said, yes.

* * *

'A. One man was behind me, had my arms behind me, and I don't remember anything about him. Who he was, I don't know.

'Q. He had both hands on you, did he not?

'A. I don't know how many hands he had on me, but he had both of my arms behind me.

'Q. He did not strike you but was holding you?

'A. He was holding me. I don't know who said, 'Hit the damn rascal again."

Eubank was called as an adverse witness. He denied that he or Scott struck Pike, but admitted that he was behind Pike holding his arms when he was injured and that the prisoner was in his and Scott's custody and control and being escorted to a cell when he received his wounds. He further said that when the prisoner was brought into the station, he was turned over to Scott, and after Scott had searched Pike, he, Eubank, found it necessary to come from behind the desk and grab Pike's arms from behind. He was taking him to the cell when he suddenly 'broke away and fell, hit his head on the doorway. ' Pictures thereafter taken of the door on the corridor leading to the cell block show it standing open, and he explained that when Pike jerked loose, he fell forward and struck his head on the edge of the door and the facing where the door is hinged to the wall. He said that Pike's head hit there 'only once' and the one blow against the door accounted for all the injuries sustained.

Scott denied striking Pike. He described Pike as being drunk, belligerent and profane, and testified that he searched Pike, removed some money from his jacket and put it on the desk before which the prisoner was standing to be booked. Pike grabbed for it, 'got the money before officer Eubank did,' tore it, 'and threw it on the floor. ' During the altercation he said Pike applied to him a vile epithet indicative of canine parentage, cursed him and Eubank, and struck at him. He stepped back and Eubank 'grabbed the man from the back and started to the lock-up, cell room.'

He described what then happened as follows:

'A. Mr. Pike when he started out, just about time he got to the door he jerked his right arm away from Mr. Eubank and he got overbalanced. He fell and the sharp end of that door doesn't come off smooth-like, and he hit the corner of that door and slit his head open and I said, 'Lord ha' mercy, the man will kill himself.' ' He further stated that after Pike was put in the cell, he 'was cursing and beating his head back and forth on the cement and the ambulance was called * * *.'

Officer Bernard P. Bowles said that the prisoner was drunk, and cursed and abused Eubank, who caught him by the arms 'so they could take him to the cell block. ' He described Pike's conduct by saying he was 'twisting and lunging' and slipped away from Eubank, struck his head upon the door facing and 'cut his head.'

Some forty-five minutes later Bowles went to the hospital, and he found Pike still boisterous, belligerent, and profane. After reciting these facts, he was cross-questioned and answered as follows:

'Q. You have testified about him saying things to nurses and so forth. Can you tell us what he said about what the police officers had done or going to do to him?

'A. He said the police officers had beat the hell out of him and they weren't going to beat him again. That is what he said at the hospital.'

The testimony of other officers and of a justice of the peace who were in the station corroborated Eubank's and Scott's statements that Pike was cursing them and jerked away, or partially loose, from Eubank and received the injuries by striking his head against the door.

Shortly after being injured, Pike was removed from his cell and taken to the Medical College Hospital for treatment. He remained in the hospital until nine o'clock in the morning, was then taken to his brother's home and sometime later that day to his own home in Amelia county.

While Pike was in the hospital two lacerations that he received were treated and sutured. Pictures taken of him a few days later disclose that the hair above his forehead had been shaved away so that the wounds could be sutured. Ten stitches were taken in one wound and three in the other. The longer of these two lacerations begins above the hair line near the right temple and extends downward in a line that curves slightly toward the right and ends above and to the right of his right eye. The other extends from slightly above the hair line over the inner corner of the left eye straight downward onto the forehead. The pictures also show another smaller laceration or abrasion in the center of his forehead slightly above his nose and two smaller abrasions on his upper lip and a small one under his left eye.

When Pike arrived at his home on the afternoon of January 16, he was examined by Dr. James L. Hamner, his family physician, who removed the bandages, cleaned the wounds and put on fresh dressings. Dr. Hamner described his injuries as follows:

'A. His head had been shaved back probably a third of the way back, and he had a wound here on the right and a shorter one on the left of the front of his head, and he had one about midway...