Appellant has filed a lengthy motion for rehearing, and brief and argument thereon. He urges that the court is in error in the opinion herein in many particulars. No other point urged for rehearing, except one, in which there is any merit.
Upon a re-examination of the case we have concluded that the special charges refused in this case present one question which was not presented by the court's charge but which should have been presented, and results in a reversal of this case. The evidence develops that appellant claimed that he had wired to the Postmaster General the fact of Tilden Brown's resignation as an employe in the postoffice, and that he was so rushed with business at the postoffice it was necessary to have another in his stead and that under the circumstances the Postmaster General had wired him the authority to relieve said Brown from said service as an employe and that he had done so and employed another in his place; and at the time of the alleged assault in this case said Brown was not an employe in said postoffice and had no authority or right to go into or through the same. Of course, that part of the postoffice building from which the public is excluded is what is meant. The trial court should therefore have submitted to the jury the appellant's theory to the effect that if they believed from the evidence that appellant, under the authority of the Postmaster General, had in fact relieved said Brown from the government service as an employe and in his stead he had employed another, then said Brown no longer had the right to go into or through the private part of said postoffice without the consent of appellant, and if he attempted to do so appellant had the right to prevent him and to use sufficient force for that purpose. And if so acting, himself, or his other employe acting with him, in a bona fide effort to prevent said Brown from going into or through said postoffice, committed *Page 15 an assault and battery upon him and in so doing used no more force than was necessary to prevent said Brown from going into or through said postoffice then to acquit him. The substantial reverse of the proposition should also be given, — that is, if appellant and his other employe used more force than was necessary, or his purpose and intention was not to prevent said Brown from going into or through said postoffice, but using that as an excuse or pretext for committing an assault and battery upon Brown, then his assault and battery upon Brown would have been unjustifiable. We think the evidence justifies a charge on this feature of the case. It is to be noted that in the interview between appellant and Brown just before the assault appellant claimed to have had a telegram from the Postmaster General to do what he had done in relieving Brown and employing another. Brown called for this telegram at the time. Appellant did not produce it. On the trial appellant testified that he had such telegram but did not produce it. If he had such a telegram the court should have required its production and introduction in evidence, instead of appellant's oral testimony to the fact and its contents.
For the error above pointed out the rehearing is granted, the former judgment of affirmance herein is set aside and this cause is now reversed and remanded for a new trial.
Reversed and remanded.