Jones v. Shears

POX, J.—Plaintiff

recovered a judgment for $30,000 damages against defendant for an assault. Defendant appeals.

In his complaint plaintiff charged that defendant “wrongfully, unlawfully and violently assaulted” him by firing “a shot from a loaded gun at plaintiff,” the bullet entering the left side of plaintiff, just below his rib cage, and lodging in his spine; that he received serious injuries, some of which are permanent in nature. He further charged that “the defendant acted maliciously and was guilty of a wanton disregard of the rights” of plaintiff.

In his answer defendant stated he was a deputy sheriff of Los Angeles County and that on the occasion in question, as such officer, he was in the process of placing plaintiff under arrest for a public offense committed in his presence, to wit, driving through a red light at an intersection and driving on the left side of the highway; that plaintiff unlawfully resisted arrest; that he used only such force as was necessary to place plaintiff under arrest; that such force consisted of his firing a shot from his service revolver, the bullet entering plaintiff’s left side; that plaintiff’s injury was caused by his unlawful resistance of defendant while the latter was acting in the lawful discharge of his duty as a peace officer. Defendant further alleges that after the commission of said public offenses and prior to the arrest of the plaintiff, defendant was forced to pursue plaintiff during the course of which pursuit plaintiff attempted to force defendant’s automobile off the highway; that defendant succeeded in causing plaintiff to bring his car to a stop and while defendant was about to' place plaintiff under arrest, plaintiff “advanced

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toward defendant in a threatening manner, refused to put his hands up on command, and reached his right hand toward his rear pocket, from which said actions defendant had reasonable cause to believe, and did believe, that said plaintiff was about to assault defendant with a deadly weapon; that acting on said belief and in self-defense,” defendant shot plaintiff.

The locale of this unfortunate affair was on Mountain Avenue, just south of Huntington Drive, in the city of Monrovia. The time was approximately 6 o’clock Sunday afternoon, September 2, 1951. After having had refreshments .at a drive-in on the southeast corner of Mountain Avenue and Huntington Drive, plaintiff, who was accompanied by Miss Ages and Sherman Buchanan, drove out on Mountain and turned south. Apparently this highway accommodated only two lanes of traffic—one each way. It had occasional holes or depressions in it, rough shoulders, and a line of telephone poles on the east side. Plaintiff’s automobile was a 1941 Mercury, in good mechanical condition except that one of the front wheel bearings was a little loose which caused the car to shake a bit when it hit a bump. Jones was driving south on Mountain at a speed of 20 to 25 miles an hour when he observed a car behind him being driven by defendant, who acted as though he wanted to pass on two or three occasions but dropped back each time. Jones testified his car swerved across the center line once because he hit a rut in the road. Finally defendant waved his revolver and “hollered” that Jones stop. Jones pulled to the side of the highway and stopped. Defendant, who had his family and his brother-in-law and his family with him, stopped behind the Jones car. Both plaintiff and defendant got out of their cars and approached each other. Jones’ account of what then transpired is that he took “two or three steps” in the direction of defendant who commanded: “Get your hands up”; that he stopped and “as I proceeded to get my hands up I was shot.” As might be expected, defendant’s account of the events leading up to the shooting is somewhat different. He claims that in attempting to pass Jones the latter had forced him “to turn very sha [a] ply to avoid a collision” and that the left wheels of his car were forced off the paved portion of the road onto the shoulder. Upon a repetition of this experience, defendant exhibited his revolver and ordered Jones to stop. Defendant’s version of the events that took place after he and plaintiff got out of their cars is as follows: “I had my