In this case I agree to a reversal of the judgment and dismissal of the action as against Potlatch Forests, Inc. I concur in the views expressed by Mr. Justice Budge on that phase of the case.
On the other hand, I can not agree to a dismissal of the action as to the defendant Ogan. The judgment as to Ogan should be reversed and a new trial ordered for the following reasons: I think the court erred in rejecting the proferred evidence as to occurrences in the confectionery store immediately preceding the fight in the street. All the facts and circumstances, that occurred immediately preceding the street fight, in which McDonald was injured, were a part of the res gestae and should have been given to the jury, to enable them to fully understand the reasons for Ogan going to the place, and the motives, conditions, and circumstances existing at the time the gas gun was fired. I also think that the court should have instructed the jury as to the duties of the defendant, under the statute, as a deputy sheriff of the county.
The judgment is reversed and the cause is remanded to the trial court, with direction to dismiss the action as to *Page 176 Potlatch Forests, Inc., and to grant a new trial as against defendant Ogan. No costs allowed.
Givens, C.J., and Reed, D.J., concur.
Holden, J., dissents.