Stowell v. Evans

PRESTON, J.

Action for damages for assault and battery;

On December 10, 1926, plaintiff and a companion were trespassers upon the inclosed and duly posted game preserve of defendant Spalding Company, a corporation, then and there in charge of the defendant Evans, who was also a duly commissioned deputy sheriff of the county of Glenn.

Plaintiff was in quest of wild geese and both he and his companion had shotguns. Defendant Evans was in company with two other men named Pain and Boyd. Pie discovered the trespassers upon the premises and called to them to come to where he was. It seems that he was stationed at a point between the hunters and the place where their machine was parked. The two hunters approached, the companion being slightly in front of plaintiff. Evans displayed his badge of authority, told the companion who he was, asked him to consider himself under arrest and ordered him to unload his gun and deliver it to him, which was done. Plaintiff, seeing what was going on, yelled to his companion and directed him not to surrender the gun. Later plaintiff came into the presence of defendant Evans and was told by him to deliver up his gun and consider himself under arrest. Plaintiff declined to surrender his gun.

At this point the evidence is in conflict. Plaintiff contends that he merely asked Evans to show his authority to take and receive from him the gun. Evans and the other witnesses testified that plaintiff made a demonstration as if to use the gun upon Evans. At any rate, Evans, whether justified or not, then struck plaintiff on the head with the empty gun barrel and fractured his skull. The arrest was thereupon completed and the two trespassers were taken before a magistrate and there booked for trial. Plaintiff has practically recovered from his injury.

[567]

He sued defendants, one as servant and the other as the responsible master, claiming that the assault and battery were unprovoked, and unlawful. Defendants interposed in the main a plea of self-defense, although it might be said that the defense that Evans was using only the force neces-, sary to overcome the resistance of plaintiff and effectuate his arrest was also made. Under the circumstances, the defense of defendants could only have been either one of the three following propositions: (1) Action necessary for self-defense; (2) use of only so much force as was necessary to subdue plaintiff and effect his arrest