
    Anthony Dwaine BENNETT v. Robert DUNN and Marine Specialty Co., Inc.
    85-807.
    Supreme Court of Alabama.
    March 13, 1987.
    Rehearing Denied May 8, 1987.
    
      Ellsworth P. Scales III of Williams & Scales, and Augusta E. Wilson, Mobile, for appellant.
    Edward A. Dean of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellee Dunn.
    William H. Sisson of Brown, Hudgens, Richardson, Mobile, for appellee Marine Specialty Co.
   HOUSTON, Justice.

Anthony Dwaine Bennett appeals from a summary judgment granted by the trial court in favor of both defendants, Robert Dunn and Dunn’s employer, Marine Specialty Company, Inc.

Bennett, who pleaded guilty to second degree theft for the stealing of a truck and is now serving a 15-year prison sentence for this offense, sought both compensatory and punitive damages from Dunn and Marine Specialty for injuries which Bennett contends he received from Dunn while Dunn was attempting to keep Bennett from stealing Marine Specialty’s truck. Dunn contends that he was defending himself, his family, and his home from an unknown nighttime intruder and that the action was taken to repel the intruder.

Viewed most favorably to Bennett, the facts before the trial court were as follows: The Dunn family — Dunn, his wife, and their 11-month-old baby boy — were asleep in their home. Around 1:30 to 2:00 A.M., Mrs. Dunn was awakened by the barking of their three dogs, which were in the Dunns’ backyard. She awakened Dunn, who looked out his bedroom window and saw the brake lights of the truck entrusted to him by Marine Specialty going on and off. The truck was parked within 20 to 30 feet of his infant son’s bedroom. Dunn ran to the front door, opened the door, stuck his head out, and yelled at the “dark blob” in the truck. Realizing that he did not know whether the intruder had any weapons or whether there were accomplices elsewhere in the yard, Dunn quickly shut and locked the door and told his wife to call the police. Dunn put on some clothes, loaded his .22-caliber rifle, and went back to the front door. With his rifle in hand, Dunn walked almost to the end of the walk leading to his driveway and kept yelling for the “dark blob” to leave. The windshield wipers in the truck were being turned on and off. The truck’s radio was on and the volume was being turned up and down. The intruder in the truck was not deterred by the barking of the dogs, Dunn’s yells, or the sight of Dunn’s rifle. Dunn fired three or four shots into the air in an attempt to scare the intruder into leaving or to evoke a response. The shots accomplished neither, and Dunn retreated to his living room. The intruder cranked the truck and Dunn stepped out of the living room and unsuccessfully attempted to “shoot out” the tires of the truck. The truck rammed into the back of Dunn’s personal vehicle twice. Bennett, according to his affidavit, without saying anything to Dunn, opened the door to the truck. Dunn, unsure what the “crazy” intruder would do next, shot approximately five shots at the windshield of the truck, aiming at the “dark blob.” The truck then backed out of the yard, crossed the street, and went into a drainage ditch. The driver accelerated quickly, and Dunn, thinking that the driver was trying to run him down, retreated to the living room. The truck entered the drainage ditch on Dunn’s side of the street, dodged a utility pole, and made it to the road, where it was driven away. During the few minutes that all of this took, Dunn was afraid.

Given these circumstances — the late hour, with Dunn being aroused from his sleep; the failure of the intruder or intruders to respond to the barking of the dogs, to the yells to “Get out of there,” or to the warning shots; the erratic behavior of the intruder in the truck; and the proximity of the truck to the house in which the family was sleeping — Dunn’s apprehensions of danger to himself and his family were not unreasonable, and his actions taken to protect his family, himself, and his home were fully justified.

Examining the circumstances from Dunn’s perspective at the time of his action, as the law requires, Suell v. Derricott, 161 Ala. 259, 49 So. 895 (1909), we find that Dunn acted out of a reasonable and well founded apprehension that he, his wife, and his 11-month-old baby were in danger. The law does not require that a man retreat when defending his home and allows him to use whatever force is necessary to remove the danger.

The evidence in opposition to the motion for summary judgment is that Bennett had become “heavily intoxicated” and had smoked marijuana, which resulted in his having a memory loss and waking up in the cab of the truck in Dunn’s yard not knowing where he was. This does not in any way make it a fact question as to whether Dunn’s actions were reasonable and fully justified. Bennett had every opportunity to retreat or to verbally respond to Dunn. This he failed to do.

Subsequent factors strengthen our position that Dunn’s action was not unreasonable and that his actions to protect himself and his family were justified. When Bennett was arrested, Bennett pounded his head against the window of the police car, apparently trying to break it in order to get out. The police were forced to transfer Bennett to a paddy wagon, and in it he threw himself against the sides. Bennett continued to act “crazy” after he left the yard of the Dunn home, and we cannot surmise what he may have done at the Dunn home if he had not been forced to leave.

Just prior to Bennett’s scheduled criminal trial for theft of property in the first degree, at which Dunn and his wife would have been required to testify against Bennett, Bennett filed this civil action against Dunn and the owner of the truck which Bennett was indicted for stealing, charging assault and battery and seeking compensatory and punitive damages. Bennett, who had a previous conviction for burglary, pleaded guilty to second degree theft of the truck from the Dunns’ yard and is now in prison.

Dunn did no more than the law allows. According to the materials before the court, he was entitled to a judgment as a matter of law. Rule 56, Ala.R.Civ.P.

AFFIRMED.

TORBERT, C.J., and JONES, ALMON, SHORES and STEAGALL, JJ., concur.

MADDOX and BEATTY, JJ., dissent.

ADAMS, J., not sitting.

MADDOX, Justice

(dissenting).

Because this case involves an unusual situation in which the perpetrator of a crime is suing the victim of that crime because the victim shot him while he was in the act of committing the crime, it would appear that the majority has reached the correct result in affirming the defendant’s summary judgment in this case. I was almost persuaded to concur in the result reached by the majority and say that this was the most “just, speedy and inexpensive” way to dispose of this case, Rule 1(c), Ala.R.Civ.P., but the law regarding the propriety of summary judgment convinced me that I could not join the majority, although I am of the firm opinion that the plaintiff would have had a hard time convincing a factfinder that the defendant Dunn was not justified in shooting him.

In order to conclude that summary judgment was appropriate here, the majority has to hold that Dunn was justified in shooting Bennett, as a matter of law. I cannot hold that the evidence shows that Dunn was justified in shooting Bennett, as a matter of law; therefore, I must respectfully dissent.

Because this case involves the unusual situation where the perpetrator of a crime is suing the victim of that crime, I gave extra careful attention to the arguments made by the victim of this crime, and I examined very closely the principle of law cited to us by him that summary judgment exists “to prevent vexation and delay, improve the machinery of justice, promote the expeditious disposition of cases, and avoid unnecessary trials when no genuine issues of fact have been raised.” 10 C. Wright & R. Miller, Federal Practice & Procedure: Civil § 2712 (1973), as quoted in Donald v. City National Bank of Dothan, 295 Ala. 320, 323, 329 So.2d 92, 94 (1976). Nevertheless, I cannot hold, as a matter of law, that Dunn was justified in shooting Bennett, under all the facts and circumstances of this case.

Dunn cites the case of Suell v. Derricott, 161 Ala. 259, 49 So. 895 (1909), as authority for the proposition that the shooting in this case was justified. I think that case is distinguishable. There, the fact issue of justification for a shooting was tried before a jury, and this Court upheld a judgment based upon a jury verdict for the defendants in a wrongful death action and because that case was actually submitted to the jury, it is probably more apt authority for the proposition that whether a shooting is justified or not is generally a fact question based upon the circumstances of each individual case.

In Alabama, the general rule is that one can only use what reasonable force may be necessary to effectively prevent the unlawful taking or detention of property. Donnell v. Great Atlantic & Pacific Tea Co., 229 Ala. 320, 156 So. 844 (1934).

Dunn contends that summary judgment was proper and that his shooting of Bennett was justified in this case, as a matter of law, because he was defending himself and his family against danger, and, therefore, was justified in using “force to combat force, even to the point of killing the intruder if it be necessary to repel the danger.” While Dunn may present evidence at trial and argue that he used no more force than was necessary to defend himself and his family, I cannot hold, as a matter of law, that the force used here was justified.

As Professor Prosser states it, the rule is:

“[S]ince the law has always placed a higher value upon human safety than upon mere rights in property, it is the accepted rule that there is no privilege to use any force calculated to cause death or serious bodily injury to repel the threat to land or chattels, unless there is also such a threat to the defendant’s personal safety as to justify self-defense.”

W. Prosser, Law of Torts § 21, (4th ed. 1971) “Defense of Property,” at 115.

Consequently, whether Dunn was justified in shooting Bennett to prevent the theft of the truck, I believe, is a fact question, which Bennett has a legal right to present to a factfinder for resolution.

The second legal question is whether Dunn was justified in shooting Bennett, as a matter of law, because he did only what was reasonably necessary to defend himself and his family.

To show a valid case of self-defense or defense of others, Dunn must show a reasonable fear for his safety or that of his family. As this Court stated in Suell v. Derricott, 161 Ala. 259, 49 So. 895 (1909), cited to us by Dunn in support of his shooting of Bennett:

“ ‘If the person assaulted, being himself without fault, reasonably apprehends death or great bodily harm to himself unless he kill the assailant, the killing is justifiable.’ ...
“ * * *
“... There is also a rule of law that, in cases of self-defense, the party is not required to know the real fact, but he may act upon a reasonable and well-founded appearance and apprehension, and, whenever a man exercises the right of self-defense, he is understood to act on the facts as they reasonably appeared to him, or as they would appear to a reasonable man, similarly situated; and if, without fault or carelessness on his part, he is misled concerning the facts, and defends himself according to what he reasonably supposes the facts to be, he is justifiable, though in truth the facts as they were reasonably supposed did not exist, and in fact he had no occasion for the extreme measure.”

161 Ala. at 269-71, 49 So. at 900.

As I have already pointed out, however, the justification issue in Suell was presented to a jury, properly instructed on the law of self-defense.

Whether Dunn was properly defending himself or others does turn on the reasonableness of his actions in light of the circumstances as viewed through his eyes, but whether he acted reasonably was a question of fact for the jury, and summary judgment was improper. Searight v. Cummings Trucking Co., 439 So.2d 81, 82 (Ala.1983).

I have found one other case which lends some support to the legal position I take. It involved a case where the alleged perpetrator of a crime sued the police. In Caplinger v. Carter, 9 Kan.App.2d 287, 676 P.2d 1300 (1984), arrestees brought an action against the arresting officers, the police chief, and the city, based on an alleged violation of their civil rights, and battery, allegedly committed upon them because the arresting officers used excessive force during and subsequent to their arrest. The court held that genuine issues of material fact existed on which liability could be established against the city or the police chief, because “[t]he reasonableness of the force used in making an arrest under all the circumstances is a question for the jury.” 9 Kan.App. at 293, 676 P.2d at 1305.

As I pointed out initially, I was almost persuaded to concur in the result reached in this case, and I take no delight in holding that the victim of this crime should have to defend himself in a lawsuit, but the law, as I understand it, states that even the perpetrator of a crime is entitled to have a factfinder determine whether the victim of that crime was justified in shooting him. So, I must be faithful to the law, as I understand it, and I must respectfully dissent.

BEATTY, J., concurs. 
      
      . See the essay “Violence in American History: The Homestead Ethic and ‘No Duty to Retreat’" by Richard Maxwell Brown, which appears at pages 97-124 in Dr. Taylor Littleton’s The Rights of Memory: Essays on History, Science and American Culture (University of Alabama Press 1986), for an interesting discussion of the integration of the social doctrine of the homestead ethic and the American legal doctrine of no duty to retreat, which are products of our 17th-, 18th-, and 19th-century past.
     