Ashworth v. Alabama Great Southern R. Co. , 211 Ala. 20 ( 1924 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The complaint in three counts alleged that deceased was wrongfully killed by an employee of defendant. In the first count the wrongful act was ascribed to W. B. Ratteree; in the second count it is alleged that plaintiff's intestate was wrongfully and intentionally shot by an unknown employee of defendant; and the third count, as amended, charged that deceased was wrongfully assaulted and beaten by C. W. Hood, an employee of defendant, and as a proximate result thereof plaintiff's intestate died.

Demurrers of defendant being overruled, it filed separate pleas as answers to said counts — pleas 1 and 2 being of the general issue, and pleas 3, 4, 5, 6, and 7 alleging that plaintiff's intestate was killed by being shot by W. B. Ratteree, who was at the time of the infliction of said injury employed by defendant, and who was guarding its property, and that when causing that injury he was acting in self-defense. The trial court sustained demurrer to plea 4, and overruled demurrer as to the other pleas. Pleas 3, 5, and 7 alleged that at the time of the killing deceased was in the act of assaulting Ratteree in the latter's place of business; that the latter was in discharge of his duties to defendant; and that such assault, if not repelled would have resulted in the death of Ratteree or great bodily harm to him. And plea 6 averred circumstances showing that a reasonably prudent man, so circumstanced, would have believed that Ratteree was in imminent peril to life or limb, and that he, while so circumstanced, honestly entertained the belief of his peril, and was acting upon such belief when he shot the deceased. The trial was had upon issue joined upon said pleas.

The pleading of self-defense to a civil action has been the subject of discussion by the court in Kuykendall v. Edmondson,208 Ala. 553, 94 So. 546. Appellant's counsel urge that there was reversible error in overruling demurrers to pleas 3, 6, and 7, as answers to count 3 of the complaint as amended. Each count was controverted by the general issue — the respective forms of the general issue employed by the pleader denied "each and every allegation contained in each count of the complaint," and pleaded "not guilty of the matters and things therein alleged." Thus count 3 as amended — that plaintiff's intestate was wrongfully assaulted and beaten by C. W. Hood, the servant or agent of the defendant — was denied or controverted by the pleas. The several special pleas, as we have noted, alleged that deceased was killed by Ratteree, while the latter was in defendant's employ and discharging the duties of his employment, and that the killing was justifiable. This was answer to the third count as amended, charging the homicide to the act of Hood. The authorities cited by appellant, defining a plea of self-defense in justification to a civil suit claiming damages for homicide, were considered, and the elements of self-defense given statement in Kuykendall v. Edmondson, 208 Ala. 553, 94 So. 546.

In such civil action the burden of proof in establishing the several elements of self-defense is as declared for a criminal case. Riley v. Denegre, 201 Ala. 41, 77 So. 335; Morris v. McClellan, 169 Ala. 90, 53 So. 155; Wilkins v. State,98 Ala. 1, 13 So. 312; Hart v. Jones, 14 Ala. App. 327,70 So. 206. It is true, as a general rule, that one must retreat rather than take human life, unless he would thereby increase his peril, or unless it reasonably appears to him that his peril would, by retreat, be increased beyond that to which he would be subject if he stands and defends himself against his assailant; or the circumstances must be such as to impress the mind of a reasonable man that the peril would be thus increased, and that he was so impressed. Kuykendall v. Edmondson, supra; Bell v. State, 115 Ala. 25, 22 So. 526; Patterson v. State, 146 Ala. 39, 41 So. 157; Brewer v. State, 160 Ala. 66, 49 So. 336. However, the duty to retreat does not obtain in one's own dwelling or place of business, when the slayer is not the aggressor. Hill v. State, 194 Ala. 11,23, 69 So. 941, 2 A.L.R. 509; Suell v. Derricott,161 Ala. 259, 49 So. 895, 23 L.R.A. (N.S.) 996, 18 Ann. Cas. 636; Watts v. State, 177 Ala. 24, 59 So. 270; Maxwell v. State, 129 Ala. 48, 29 So. 981; Askew v. State, 94 Ala. 4,10 So. 657, 33 Am. St. Rep. 83; 2 A.L.R. 509.

There was no duty resting upon defendant to show that Ratteree could not have avoided the difficulty by retreating from or in the car, when at the time he was in his place of business. Defendant having averred or proven the other element or elements of self-defense (the duty to retreat being dependent on the circumstances [Hill v. State, supra; Kuykendall v. Edmondson, supra]) on the part of Ratteree, the burden of going forward with the evidence was upon the plaintiff to show (if it be a fact) that defendant's agent was not free from fault in bringing on the difficulty.

In O'Rear v. State, 188 Ala. 71, 66 So. 81, it is declared:

"Where a defendant was in actual imminent peril of life, or of suffering grievous bodily harm, when he shot deceased, and the other conditions requisite to the exercise of the right of self-defense were present, an honest belief on the part of defendant in his peril was immaterial, and an inquiry as to its existence will not be made, since the requirement of honest belief is applicable only to reasonably apparent peril.

"Where the circumstances attending the homicide were such as to justify defendant in a reasonable belief that he was in danger of death or great bodily harm, and that he could not retreat without increasing his peril, and he honestly believed such to be the case, he could shoot in self-defense, although as a matter of fact, he was not in actual danger, and a retreat would not have increased his peril, and the burden of showing that defendant was not free from fault in bringing on the difficulty is on the state." Ex parte State ex rel. Atty. Gen.,207 Ala. 349, 92 So. 606; Kuykendall v. Edmondson, supra; Bodine v. State, 18 Ala. App. 514, 93 So. 264, 268; Teel v. State, 18 Ala. App. 405, 92 So. 518.

That is to say, if the danger is actual, real, and existing (an imminent peril) the belief thereof on the part of a defendant or a party charged with the act in question is immaterial; if, however, the circumstances are such as to induce the belief in the mind of a reasonably prudent man so circumstanced that imminent danger existed, it must be further shown that the party charged honestly believed that he was so menaced and that he acted under that apprehension. The pleas were free from demurrer.

For the foregoing reasons there was no error in giving, at defendant's request, written charges 34, 46, and 61; and in the refusal of plaintiff's written charges 1, 6, and 7. The portion of the oral charge to which exception was reserved, when considered with other portions of the oral charge taken as a whole, was free from error.

Charges 45, 57, 58, and 59, given for defendant, stated the law of the case warranted by the evidence. The right to eject a person unlawfully intruding in a car in a railway train (provided it is done by the exercise or use of only such force as is reasonably necessary for that purpose, having regard to the attendent circumstances) has been declared by the courts. L. N. R. Co. v. Johnson, 92 Ala. 204, 9 So. 269, 25 Am. St. Rep. 35; South. Ry. Co. v. Farquhar, 192 Ala. 415,68 So. 289; Waldrop v. N.C. St. L. Ry., 183 Ala. 226,62 So. 769; N. O. N.E. R. Co. v. Jopes, 142 U.S. 18,12 Sup. Ct. 109, 35 L.Ed. 919. The amount of force that may have been employed in the ejection of Thomas from the car by defendant's agent Ratteree was limited to such force as was reasonably necessary under the circumstances. It was therefore not without limitation, as insisted by appellant's counsel in argument.

The giving at defendant's request of charges 49 and 61 is challenged by assignment of error and argument. We have heretofore adverted to given charge 61. We may here observe that the death of plaintiff's intestate was caused by the shot discharged by defendant's agent Ratteree, and not by the assault of its agent Hood. The complaint and damage alleged is for the wrongful death of Thomas. After the latter had been struck by Hood, he renewed the attack on Ratteree and was shot and killed by the latter. Under the facts of this case, if the principal is liable, it is under the doctrine of respondeat superior (N. O. N.E. R. Co. v. Jopes, 142 U.S. 18, 28,12 Sup. Ct. 109, 35 L.Ed. 919, 920; Bigelow v. Old Dominion, etc., Co., 225 U.S. 111, 32 Sup. Ct. 641, 56 L.Ed. 1009, 1021, Ann. Cas. 1913E, 875), and no liability would attach to the principal where for the act and damage the agent himself is not held liable. There is no evidence that said agent had stepped aside from the master's business in firing the fatal shot resulting in the death of Thomas. Buttrey v. Wilhite, 208 Ala. 573,574, 94 So. 585; Republic I. S. Co. v. Self, 192 Ala. 403,68 So. 328, L.R.A. 1915F, 516; Willingham v. Birmingham Ry., L. P. Co., 203 Ala. 351, 83 So. 95. See, also, 40 L.R.A. (N.S.) pp. 1005-1007, 1051, note, 1071, note. Cases in this court where this doctrine is recognized or applied are Culberson v. Empire Coal Co., 156 Ala. 416,47 So. 237; Ala. City, G. A. Ry. Co. v. Sampley, 169 Ala. 372,53 So. 142; Wright v. McCord, 205 Ala. 122, 88 So. 150. No error was committed in giving defendant's charges numbered 49 and 61.

The questions sought to be propounded to the witnesses Shepherd and Hood did not come within the rule of Anderson v. State, 209 Ala. 36, 95 So. 171, and authorities cited, where improper remarks or arguments of counsel were discussed and said to depend largely upon the issues, parties, and general circumstances of the case. There is no iron-clad rule that exists whereby the prejudicial qualities or character of improper remarks of counsel can be ascertained in all cases. The court instructed the jury that statements made to the court by respective counsel "are not to be taken as evidence in the case" or as "a part of the evidence"; that the jury would "take the evidence from the stand."

The other objections to evidence are without merit. The statements were in the nature of threats against a class (not the details of a former difficulty), or against the agent or agents of defendant, of which Ratteree was one. Sharp v. State,193 Ala. 22, 25, 69 So. 122. The cause of the threats was the arrest of deceased at or near Trussville by Ratteree, and others, after his unlawful attempt to ride defendant's train. Such threats illustrated his subsequent conduct and acts, and shed light on the reasonable appearance of things when, for the second time, Thomas came aboard the car at the time and under the circumstances indicated in the evidence.

The refusal to allow plaintiff to show by the witnesses Vann and Holmes what Ratteree was doing with the pistol, and what he said when the witnesses came up a few minutes after the homicide, was not error. It was no part of the res gestae of the killing. In Ferguson v. State, 141 Ala. 20, 27, 37 So. 448, the mother of deceased was with him when he was killed, and defendant made the remark to her, "Where in the hell are you going," about a minute or two after the killing. In Wells v. State, 187 Ala. 1,1 the fact that defendant "immediately after shooting the deceased fired at Hawkins" was permitted, as res gestae. In the instant case the time when the witnesses "come up" is not definitely located so as to make admissible the act (waving the pistol) and remark to the witnesses (to get away from there) as res gestae. Smith v. State, 197 Ala. 193,72 So. 316. The conduct of defendant's agents in removing the body of deceased from the car to the ground, and then replacing the same on the train, was immaterial to the inquiry of the illegal killing of Thomas in the present state of the evidence.

There was error in overruling the motion for a new trial on the ground of newly discovered testimony. The motion comes within the rule declared in Fries v. Acme White Lead Color Works, 201 Ala. 613, 79 So. 45.

The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.