Carson v. Pape

• Decision Date: 29 December 1961
• Citation: 15 Wis.2d 300,112 N.W.2d 693
• Parties: Johnnie Ruth CARSON, Appellant, v. Phillip PAPE et al., Respondents.
• Court: Wisconsin Supreme Court

Page 693

112 N.W.2d 693

15 Wis.2d 300

Johnnie Ruth CARSON, Appellant, v. Phillip PAPE et al., Respondents.

Supreme Court of Wisconsin.

Dec. 29, 1961.

Action by plaintiff Johnnie Ruth Carson for damages resulting from his alleged false imprisonment, against defendants Phillip Pape, Donald Brockman, Gordon Woller, Richard Kramer and Robert Bodish, commenced on November 10, 1958. After trial to a jury a general verdict was submitted. The jury found for defendants. From a judgment dismissing the complaint, plaintiff appeals.

At the time the events which gave rise to this lawsuit occurred all defendants were police officers, employed by the Milwaukee Police Department. Plaintiff, an industrial worker, resided at 3170 North 7th street in the city of Milwaukee, and owned a 1956 green and white Buick, license No. J-56490.

On Monday, May 20, 1957, at 7:00 a. m., defendants Pape and Brockman, while patrolling in their squad car, received an order from their dispatcher to cruise the vicinity of 3200 North 10th street in order to investigate a complaint of a reckless driver in a 1956 green and white Buick. They proceeded to the area, and at 7:10 a. m. a green and white Buick turned north on North 10th street and came towards the two officers. The Buick passed within three or four feet of the officers, allowing them to observe the driver. They testified that the driver was the plaintiff, Johnnie Ruth Carson.

Pape and Brockman made a U turn, switched on their red light and siren, and pursued the Buick. The Buick sped away, traveling at speeds up to 70 miles per hour and ran through several stop lights and signs. The officers radioed for assistance. They lost the Buick in traffic and stopped at a call box to talk to another officer, Woller. While Pape and Brockman were talking to Woller the Buick drove past them. Woller testified that plaintiff was driving. Pape and Brockman resumed their chase, but finally lost the Buick in the vicinity of West Locust and West Chambers on North 9th street. At 7:25 a. m. Page and Brockman received a radio call from Woller, who had located the Buick parked between North 9th and 10th streets on West Chambers. The motor was hot and the tires were warm. The license, No. J-56490, was found to be registered to plaintiff, at the address 3170 North 7th street. When Pape and Brockman got to the Buick they found patrolman Woller and Kramer and Sgt. Bodish there.

Woller and Kramer proceeded to plaintiff's apartment which was about three blocks from the parked Buick. Outside they met plaintiff's sister, Geraldine Carson, who lived with plaintiff, and who was arriving home from work. She told the officers where plaintiff lived. Woller and Kramer proceeded to the apartment, gained entry, found plaintiff lying on a bed apparently sleeping, and arrested him without a warrant for reckless driving. Shortly thereafter patrolmen Pape and Brockman and Sgt. Bodish arrived at plaintiff's apartment. Plaintiff was placed in a patrol wagon and taken to a precinct headquarters and shortly thereafter was transferred to the safety building. He arrived at the safety building at about 8:50 a. m. A warrant was issued charging him with reckless driving.

About 10:00 a. m., on the same day, plaintiff appeared with counsel before district court Judge Frank Gregorski. His case was continued until June 12, 1957, and he was allowed to go without bail. Plaintiff was tried on that day, found guilty, and was sentenced to 90 days in the county jail. He was in jail from June 12 to 15, 1957, when on the latter date his case was reopened and sentence set aside and the case continued until August 15, 1957. He was released without bail. He was tried on August 15, 1957, found guilty and sentenced to 30 days in the house of correction or a fine of $200, but execution of the sentence was stayed for 11 days. Plaintiff was released without bail. His attorney then moved for a new trial and the motion was granted. A trial, with a jury of six, was had on June 10, 1958, and the jury found plaintiff not guilty. Subsequently, plaintiff brought this action for false imprisonment.

Plaintiff claimed that at the time the officers were chasing the Buick car he was home in bed sleeping. Jessie Carson, plaintiff's brother, and Alberta Carson, Jessie's wife, both of whom lived with plaintiff, testified that plaintiff came home at 11:30 p. m. Sunday night, went to bed and remained in bed until the officers came to arrest him at about 7:30 a. m. Monday morning. Thus, plaintiff could not have been driving his Buick.

Plaintiff alleged that the officers were 'vicious' in their manner of placing him under arrest and caused him physical injury and humiliation. Geraldine Carson, plaintiff's sister, testified that officers Woller and Kramer forced their way into plaintiff's apartment. The officers testified that they waited in the hallway before entering and got permission to enter from plaintiff's wife, Betty Carson, who was lying on the couch in the living room, visible to the officers at the door was opened by Geraldine. The officers testified that Betty Carson told them plaintiff had just gotten home and directed them to the bedroom. Betty denied this. When the officers went into the bedroom plaintiff was lying on the bed face down with a blanket partially covering him, dressed in shorts and a T shirt.

Geraldine testified that Woller and Kramer went right over to plaintiff and without looking at his face hit plaintiff across the back with a stick. She testified that one of the officers sat on plaintiff, put a knee in his back, pulled his hands behind his back, and applied a come-along chain to both of his wrists. Plaintiff testified that the officers twisted the chain, cutting the skin on his wrists to the bone.

The officers testified that as they entered the bedroom plaintiff came off the bed fighting and cursing and trying to knee and bite the officers. They were forced to subdue him and place handcuffs on his wrists. Woller recognized plaintiff as the person he saw driving the Buick a few minutes earlier.

Plaintiff testified that the defendants forced him to go to the police station dressed only in a T shirt, pants with a zipper open and without shoes. The officers testified that plaintiff refused to dress, and that they had to force his pants on him. They took a pair of shoes along for plaintiff.

On May 20, 1957, shortly after his release that morning, plaintiff went to Dr. Brillman for treatment of his wrists. The doctor testified that he had examined plaintiff on that date and found he was suffering from trauma of both lower arms. There was breaking of the skin around his wrists. Plaintiff contended that these injuries were caused by the officers twisting the chain they had around his wrists.

The officers testified that they put handcuffs on plaintiff and that they did not use a come-along chain, though the latter device was regulation equipment at that time. Inspector Dahl testified, and demonstrated, that the come-along chain, which was eleven inches long, could not possibly be placed around the two wrists of a person and be used effectively.

Coggs & McCormick, Milwaukee, for appellant.

John J. Fleming, City Atty., George A. Bowman, Jr., Asst. City Atty., Milwaukee, for respondent.

MARTIN, Chief Justice.

The trial court instructed the jury that:

'If you find that the arrest of the plaintiff by these defendants was not a false arrest, then that will end your consideration of the case and you will return a verdict of no cause of action in favor of the defendants.'

Appellant contends that this instruction was erroneous because a jury issue with respect to excessive force in making the arrest was presented by the pleadings and testimony. Thus, even though the officers were privileged to arrest appellant, if they used excessive force in effecting the arrest he would be entitled to damages. Respondents argue that the evidence was insufficient to send the issue to the jury. In its memorandum decision the trial court stated that there was no evidence of excessive force, noting Inspector Dahl's testimony and demonstration that it would be impossible to attach a come-along chain around two wrists of a person.

The use of the come-along chain by the officers was only one element of the use of excessive force testified to by appellant and his witnesses. The evidence did present an issue with respect to excessive force and it should ordinarily have been resolved by the jury. However, the appellant waived any right to a jury determination of this issue. Appellant's trial counsel agreed to the form of the general verdict which was submitted to the jury, and, although he requested instructions on the issue of false imprisonment and damages recoverable therefor, he failed to request any instruction on the issue of excessive force in making an arrest or recoverable damages related to that issue. Where instructions are incomplete and do not cover a point that ought to be covered, this court will not reverse unless timely request for appropriate instructions has been made to the trial court. Grinley v. Town of Eau Galle (1956), 274 Wis. 177, 79 N.W.2d 797.

During its instructions to the jury the trial court stated...