dissenting in part:
As I read the evidence in this record it is insufficient, both in content and justifiable inference, to prove a case against Officer Eubank, and in my opinion the trial court was clearly right in striking the evidence as to him.
There is not a suggestion in the evidence that Eubank himself did the plaintiff any physical harm. It shows without contradiction that he was discharging his duties as an officer at the time of the alleged assault on Pike.
The evidence is uncontroverted that the plaintiff struggled with *702the officers and used vulgar language when they took him from the Tantilla; that he was cursing in the patrol wagon on the way to the police station; that as he was being searched in the police station Scott took his pocketbook and plaintiff grabbed it, tore the money in two and threw it on the floor; that the plaintiff called Scott a vile name and struck at him as Scott was trying to pick up the money; thereupon Eubank grabbed him and started with him to the cell room. After plaintiff was put in the cell he was beating his head back and forth on the cement.
The plaintiff testified that he remembered only two things that happened in the police station. One was that as Eubank got his arms behind him he, plaintiff, out of the corner of his eye saw “him” (referring to Scott) coming down on his head with the butt of a pistol. The other thing he remembered was that somebody said, “Hit the damn rascal again.” Everybody else in the police station that night, being six members of the Richmond police force in addition to Eubank and Scott, testified that nobody hit the plaintiff. Nobody, not even the plaintiff, testified that Eubank did more than take the plaintiff by the arms and try to put him in a cell.
The trial court held, and this court decides, that it was for the jury to say whether the plaintiff or the police officers are to be believed. Even so, there is not a scintilla of direct evidence in the case that Eubank, by word, gesture or thought process, aided or abetted Scott in that act.
In doing all that the evidence showed he did, Eubank was doing not only what he had a lawful right to do but also what it was his plain duty to do under the circumstances.
What is there to submit to a jury as to Eubank’s liability? The majority opinion says inferences. It is true that inferences may be drawn from facts proved, but I can find no fact established by this evidence that will support an inference that Eubank aided in or abetted an unlawful assault on the plaintiff. He was there, it is true, but his mere presence did not make him an aider and abettor. There must be something else to show that he “in some way procured, or incited, or encouraged, the act done by the actual perpetrator.” * * “The test is concert of action * *.” Hurd v. Commonwealth, 159 Va. 880, 890, 165 S. E. 536, 540.
The plaintiff testified that so far as he remembered he was struck once; but the opinion says it may be inferred from his wounds that he was struck more than once.
*703It was proved as a fact that plaintiff was cursing and abusing the officers, and this, the opinion holds, warrants an inference that Eubank was incensed at his conduct, and that he desired to subdue the plaintiff, and these inferences warrant the further inference that it was Eubank who exclaimed, “Hit the damn rascal again.” This is heavy work for inferences. We have said many times that an inference based only on another inference is not evidence. Much could be proved against many by that process.
But the opinion takes another path to the same destination. It says that even if Eubank did not know that Scott was going to hit the plaintiff the first time, and even if the jury might not believe that Eubank said to hit him again, yet when somebody did say that, Eubank was put on notice that a second blow might be coming. In the unknown interval of time between the alleged exclamation and the unproved second blow, it became the duty of Eubank to try to forestall the second blow. But concededly, says the opinion, he did not do that. (It was conceded in the sense that Eubank testified there was not any second blow, or even first blow). The opinion then concludes that a jury having arrived at that vantage point by that method could go farther and justly infer that Eubank intentionally held Pike while he received further blows and thus countenanced and aided in the assault.
It seems to me this is traveling farther afield in the realm of speculation than has been done before, and that no verdict which depended for its support on such a foundation could be sustained.
I think we should remember the principle that officers of the law, when engaged in a lawful duty which they are performing in a lawful manner, are entitled to the protection of the law that they seek to enforce.
It was stated this way in Mercer v. Commonwealth, 150 Va. 588, 599, 142 S.E. 369, 372:
“Let it be once established that an officer is engaged in a lawful duty and is performing same in a lawful manner, then the law throws around him every protection to which he is entitled as a minister of justice.”
Before that this court said in Davidson v. Allam, 143 Va. 367, 373, 130 S. E. 245, 246:
“Officers, within reasonable limits, are the judges of the force necessary to enable them to make arrests, to prevent escapes, and to deliver. *704prisoners where they are required by law or by warrant to deliver them.
“When acting in good faith, the courts will afford them the utmost protection, and they will recognize the fact that emergencies arise when they are not expected to exercise that cool and deliberate judgment which courts and juries exercise afterwards upon investigations in court.”
I would affirm the judgment below as to Eubank and send the case back for retrial as to Scott for the reasons stated in the majority opinion.
Whittle, J., joins in this dissent.