Carlton v. Henry

129 Ala. 479

• Court: Supreme Court of Alabama
• Decided: November 15, 1900
• Status: Published

Opinion

SHARPE, J.

On the trial there was evidence tending to show that defendants went to the plaintiff’s office and factory for the preconcerted purpose of beating or shooting his servant; that while both defendants were 'chasing the servant through the factory, defendant Henry met plaintiff in a doorway and violently thrust him aside; that a few minutes later, on returning from the pursuit, Henry beat the plaintiff while Rogers stood by holding a pistol which he had fired at the servant. In view of this evidence charges “O” and “N” should not have been given. The act of Henry in thrusting the plaintiff being done in carrying out the unlawful purpose of heating the servant, was in itself unlawful and amounted to an actionable assault and battery without regard to whether it was designed to injure plaintiff. In the civil as distinguished from the criminal action an intent to injure is not essential to the liability of the person committing the assault.—Thomason v. Gray, 82 Ala. 291; Chapman v. State, 78 Ala. 463; 2 Green. Ev., § 85.; 2 Am. & Eng. Law, 954, 986. That act was comprehended in the trial and a verdict might have been based upon it as against Henry if not against the other defendant. The effect of charge “C” was to preclude such a verdict by confining the jury’s consideration to the later encounter.

Charge “N” also invaded the jury’s province. It was equivalent to a denial of Rogers’ responsibility for Henry’s act in casting plaintiff from his way during the chase. A doctrine applicable to civil as well as criminal- cases is that where two persons enter into a combination to do an unlawful act, whatever is done by one as the proximate consequence of furthering the main purpose of the conspiracy, whether' specifically included in that purpose or not, is the act of both and binds both to responsibility.—Martin v. State, 89 Ala. 115; Jordan v. State, 79 Ala. 9; Williams v. State, 81 Ala. 1; Doremus v. Hennessy, 176 Ill. 608, 68 Am. St. Rep. 203.

If defendants combined to invade the plaintiff’s premises and there punish his servant, they had reason to expect his interference. From the evidence it was open to the jury to infer that they -conspired and acted to that end, that they contemplated resisting such interference by violence if necessary, and that plaintiff was thrust aside to avoid such obstruction as his presence in tlie doorway offered to tlie olíase and so was done in furtherance of tlie common object. Therefore, the question of lingers’ responsibility for that act of Henry’s-was properly for the jury.

Charge was probably misleading but the plaintiff might have prevented that effect by requesting the court to explain the effect which the part of a conspirator may have in connecting one with -an assault and battery.

The judgment will be reversed and the cause remanded.