Cullen v. Dickenson

• Citation: 144 N.W. 656,33 S.D. 27
• Parties: CULLEN v. DICKENSON et al.
• Decision Date: 22 December 1913
• Court: Supreme Court of South Dakota

144 N.W. 656

33 S.D. 27

CULLEN v. DICKENSON et al.

Supreme Court of South Dakota

December 22, 1913

Appeal from Circuit Court, Minnehaha County; J. W. Jones, Judge.

Action by Elizabeth Cullen against R. W. Dickenson and others. From a judgment for defendants and an order denying a motion for new trial, plaintiff appeals. Reversed and remanded for further proceedings.

Joe Kirby, of Sioux Falls, for appellant.

Muller & Conway, of Sioux Falls, for respondents.

SMITH J.

Action for damages for false imprisonment or deprivation of personal liberty. Answer by general denial. Verdict for all the defendants. Appeal from the judgment, and from an order overruling motion for a new trial. Appellant assigns error in various rulings upon matters of evidence; in directing a verdict in favor of defendant Dickenson; in refusing certain requests for instructions; in the general charge to the jury and in refusing appellant a new trial.

The record discloses that the defendant Dickenson was one of the commissioners; the defendant Johnston, chief of police, and the defendant Storey, a policeman, of the city of Sioux Falls. Public dances were being conducted by one Ross, in a hall in the city of Sioux Falls, which, previous to the alleged wrongful acts of defendants, plaintiff had attended with her sister and other acquaintances. Prior to the time of the alleged wrongful acts, the defendant Dickenson ordered his codefendants to station themselves at the dance hall, and to permit no persons under 18 years of age to attend the dances. At the time of the alleged wrongful acts of his codefendants, Dickenson was not present, and had no knowledge thereof until the next day.

At the trial, plaintiff testified-and was fully corroborated by other witnesses-that about the 9th of May, 1912, she went to the hall to attend a dance in company with one Rose Beaner that when they arrived at the hall, defendants Storey and Johnston were at the door, and refused to allow plaintiff to enter the hall, alleging that she was under 18 years of age; that plaintiff told them she was 19 years of age; that certain of her friends there present also told the two defendants that she was over 18 years of age; that defendants refused to accept said statements, and continued to refuse her admission; that she insisted on entering the hall, whereupon Chief of Police Johnston told Storey to take her away; that Storey took her to police headquarters at the auditorium, put her in a room and left her there for 20 minutes of half an hour, after which she was told she could go, but that she would not be permitted to attend the dance. The complaint also alleges, and the evidence shows, that about the 11th and again on the 14th of May, 1912, the defendants Johnston and Storey, pursuant to the same orders, stood in the doorway of the hall in the evening when public dances were being conducted therein, at which the plaintiff was an acceptable guest, and by a show of physical opposition and by forbidding plaintiff to enter the door, excluded her from said dances and from participating therein, though her friends and acquaintances were then in the hall. The complaint also alleges that defendants acted willfully and maliciously, and without right or authority, and deprived plaintiff of her liberty to attend said dance. Though we do not think it material, the evidence conclusively shows that plaintiff was over 19 years of age, at the times mentioned.

At the close of the trial, the court directed a verdict for the defendant Dickenson, for the reason that the acts of Johnston and Storey in making the alleged arrest were not authorized by the orders given them by Dickenson, which were to exclude from the hall all persons under 18 years of age, and not to arrest them. Dickenson admitted giving orders to exclude such persons from the dance hall, and his own testimony, as does that of his codefendants, tends to show a ratification of the acts of the two officers present at the hall. In the view we take of this case, however, we do not deem it necessary to consider the matter of ratification. Appellant contends that the direction of a verdict for defendant Dickenson was the cause of the verdict in favor of the other defendants. While such contention may seem plausible, we are unable to say from the record that it materially influenced or determined the action of the jury as to the other defendants, and cannot predicate error thereon. In the view we take of this case, it becomes necessary to grant appellant a retrial, upon which proper issues may be submitted to the jury as to the liability of all the defendants.

Appellant assigns error in receiving evidence of the orders given by Dickenson, as tending to justify the acts of Johnston and Storey. The court committed no error in this respect. It is true, no justification was pleaded in the answer. The only issues were as to trespass by unlawful acts...