Carey v. City of Richmond

• Decision Date: 21 December 1883
• Docket Number: 10,600
• Citation: 92 Ind. 259
• Parties: Carey et al. v. The City of Richmond et al
• Court: Indiana Supreme Court

92 Ind. 259

Carey et al. v. The City of Richmond et al

No. 10,600

Supreme Court of Indiana

December 21, 1883

From the Wayne Circuit Court.

The judgment is reversed, at appellee's costs; and cause remanded, with instructions to grant a new trial, and for further proceedings in accordance with this opinion.

W. A Bickle and S. A. Forkner, for appellants.

W. D Foulke, J. L. Rupe and J. F. Robbins, for appellees.

OPINION

Franklin C.

Appellants Carey and wife sued the city of Richmond and three of its police officers for an assault and battery upon, and the unlawful arrest and false imprisonment of, the wife. A demurrer was sustained to the complaint as to the city of Richmond. On motion of the defendants (the police officers) portions of the complaint were stricken out. Two additional paragraphs to the complaint were then filed. An answer in three paragraphs was filed: 1st. A denial. 2d. Justification under the vagrant act of 1877. 3d. Justification under an ordinance of the city.

A demurrer was overruled to the second and third paragraphs of the answer, and a reply in denial filed. There was a trial by jury, verdict for defendants, and, over a motion for a new trial, judgment was rendered for the defendants for costs. Errors have been assigned upon the foregoing rulings.

Without setting out specifically the pleadings of the parties, or the rulings of the court, we conclude that there is no error in the record sufficient to reverse the judgment until we come to the fourth specification in the assignment of errors, and that is upon the overruling of the motion for a new trial.

The charge against Mrs. Carey in the former case was that she was a prostitute, and found wandering in the streets of the city of Richmond at 8:30 o'clock at night; and the defence in this case is that the appellees were police and peace officers, and as such arrested her, doing no more violence than was necessary to take and retain her in custody; that at that hour of the night the mayor's court was not in session, nor was there any other judicial tribunal before which she could then be taken; that for the want of bail they took and locked her up in the female prison of the city for safe-keeping, until a formal charge could be preferred against her, where she remained until 10 o'clock P. M. of that night, when she was released upon bail.

Upon the trial of this cause the appellees proved, without objection, certain conduct between appellant Mrs. Carey and one Stokes upon a sofa at her house when they were alone, a short time before the arrest. Mrs. Carey and Stokes were called as witnesses in rebuttal, and they testified that no such conduct took place. They were then asked by defendants' counsel if they had not testified before the mayor's court, upon the former trial, and stated in their testimony, that they were then upon the sofa, and that he was bathing her head; which they denied so testifying, though appellant had testified fully in the case. The mayor and other witnesses were then introduced by the defendants, and these witnesses testified that Mrs. Carey and Stokes, on the former trial before the mayor, did testify as above asked and by them denied. Appellants' counsel then asked them to state "what other facts or circumstances said Mary Carey testified and...