This is an action by Wilson (appellee) against W.T. Kemp, as constable of beat 52, Jefferson county, and the sureties on his official bond, for damages sustained by appellee on account of being wrongfully or unlawfully shot by appellant Kemp while Kemp was alleged to be acting as such constable.
The complaint consisted of three counts, but the third count was eliminated by the charge of the court. There was judgment in favor of plaintiff, Wilson, and the defendants have appealed to this court, and assigned as error the giving of written charges requested by the plaintiff, the refusal of written charges requested by the defendants, and the rulings of the court upon the admission of testimony.
The complaint was based upon the official bond of the constable, Kemp, and in the first count the breach was alleged as follows:
"And plaintiff further avers that on said day and date, to wit, the 30th day of September, 1917, in Fairfield in said county and state, the said W.T. Kemp, while acting under the color of the office of constable as aforesaid, breached said bond by wrongfully shooting and injuring plaintiff."
The breach in the second count is the same as in the first count, except that the word "unlawfully" is used where the word "wrongfully" is used in the first count. *Page 226
In order for the plaintiff to be entitled to a recovery, it was incumbent upon him to prove that the act was done by the constable, Kemp, "while acting under color of the office of constable"; the burden of proving substantially all the material averments of the complaint upon the plaintiff. T. C., I. R. R. Co. v. Hamilton, 100 Ala. 252, 262, 14 So. 167, 46 Am. St. Rep. 48. We have carefully examined the testimony in the record, and find no evidence to support this averment. For this reason the court erred in refusing to give the affirmative charge requested in writing by appellants, defendants in the court below. Hatch v. Varner, 150 Ala. 440, 43 So. 481.
The evidence shows that the shooting was done in making an arrest in a beat other than the beat of which defendant Kemp was constable; that Kemp was a deputy sheriff, and was aiding another deputy sheriff in making the arrest. The evidence shows that Kemp was not acting in his capacity as constable, but was acting as a deputy sheriff. Failing to prove this material averment of the complaint, the plaintiff was not entitled to recover.
The court erred in giving charge No. 3 requested in writing by plaintiff. This charge instructed the jury to find for the plaintiff without the necessity of plaintiff proving that Kemp was acting in his capacity as constable, or "while Kemp was acting under color of the office of constable," etc.
We do not deem it necessary to pass separately upon the charges requested in writing by the defendants.
There was no error in sustaining the objections of the plaintiff to the questions as to the former connection of plaintiff for gaming at the same place or as to his visiting the place and playing cards. Nor was there error in sustaining objections as to instructions given by the sheriff to the witness Lee White or Kemp while acting as deputies.
There was no error in sustaining objections to the questions asked the defendant Kemp as to what capacity he was acting in, whether as deputy sheriff or constable; the rule being that the witness should be allowed to state the facts, but not his conclusions.
It is strenuously insisted by appellee that appellant Kemp could not be a deputy sheriff while he held office as constable; that he could not act in a dual capacity, etc., and in support of this insistence cites Code 1907, § 1467, subd. 7, also Carlisle v. Watts, 78 Ala. 488, neither of which bear upon the question involved, and it is manifest that in making these references a clerical misprision has been committed. However, the question has been recently decided adversely to the contention of appellee by this court in the case of Ward, Pres., etc., v. State ex rel. Goldsmith, 82 So. 660,1 and by the Supreme Court of Alabama, 82 So. 662.2 In these cases it is held that a deputy sheriff is merely the agent or employé of the sheriff, enjoys no tenure of office, and is removable at the will of the sheriff, and is not within the terms of section 280 of the Constitution, which prohibits holding two offices of profit.
Charges 2, 4, D, 7, 8, and 14, requested by appellants, should have been given.
Charges 20, 21, 22, and 23 were properly refused as being abstract.
For the errors pointed out, the judgment of the circuit court is reversed, and the cause remanded.
Reversed and remanded.
1 Ante, p. 170.
2 203 Ala. 306.