Dedman v. McKinley
| Decision Date | 14 October 1947 |
| Docket Number | 47082. |
| Citation | 29 N.W.2d 337,238 Iowa 886 |
| Parties | DEDMAN v. McKINLEY et al. |
| Court | Iowa Supreme Court |
F. T. Van Liew, Paul Hewitt, Harvey Bogenrief and Hextell & Beving, all of Des Moines, for appellants.
Charles P. Howard, of Des Moines, for appellee.
On February 10, 1945, plaintiff was stopped near the Locust street bridge, in Des Moines and questioned by the defendants, who were members of the Des Moines Police Department. She was then taken to Police Headquarters for further questioning and released. No charges were filed. This action is for false imprisonment and from a verdict and judgment in plaintiff's favor, defendants appeal.
Appellee in her petition alleges that while walking along the streets of Des Moines, with one David Davies, in a quiet and orderly manner, she was arrested and deprived of her liberty by the appellants. That she suffered humiliation and embarrassment and asked damages. Appellants, by way of answer and in division IV thereof, and by way of justification, assert that appellee and said Davies were engaged in the commission of a public offense in their presence. That said offense consisted in appellee, a child under eighteen years of age, violating Ordinance No. 4649, of the City of Des Moines. This ordinance makes it a misdemeanor to remain in a public park after 10:30 P.M. without special permission. Appellee by reply denies being in a park and sets forth Sections 11 and 21, Chapter 75, of the Municipal Code of Des Moines 1942, which provides that no one shall enter the parks contrary to posted notices which shall be posted in conspicuous places therein. That no such notices were posted.
I. After the close of the testimony, the Court upon motion of appellee struck from the answer said Division IV and all reference to the City Ordinance violation was withdrawn from the jury. This is alleged as appellants' first assignment of error.
The record shows that the area along the river bank, both north and south of the Locust street bridge is a part of the Des Moines City Park system. That the portion under the bridge bears a bad reputation, as a place where people go for immoral purposes. That at the west end of the bridge, on both the north and south side, there is a stairway going down under the bridge.
On the evening of February 10, 1945, sometime after 9:30 P.M appellee in the company of David Davies, was walking east on Locust street. As they approached Third street, they were observed by the appellants, who were on patrol duty, and seated in their patrol car, parked at Third and Locust. They immediately drove their car to the west end of the Locust street bridge and stopped. As appellee and Davies reached the bridge, walking east on the south side of Locust street, they started across the street to the north side of the bridge. There is a dispute in the record as to just where appellee and her escort were when the appellants stopped them and started asking questions. Appellants claim they had reached the north side of the bridge and had taken a step down the stairway leading under the bridge. Appellee claims she was still in the street when stopped by them. Appellant McKinley at this time had left the car and approached them. Appellant Simmons states that when McKinley called to them they were on the sidewalk. McKinley states that when he stopped them, they were stepping on to the areaway at the top of the steps. It is not disputed but that McKinley took appellee by the arm and ordered her into the patrol car.
The record is also in dispute as to the time. Appellants claim they stopped plaintiff at 10:30 P.M., while appellee claims it was shortly after 10:00 P.M. The record at the Police Headquarters shows that appellants at 10:20 P.M. radioed Headquarters they were bringing in a party for investigation.
The record is clear that this call referred to appellee.
At the time appellee was stopped on the bridge she stated her age as 17 and, as she says, immediately said, no 18. The record bears out this claim. At no time was it ever mentioned to her that she was in a park contrary to the City Ordinance, nor does it appear, in any satisfactory manner, that such a report was made to the officer in charge at Headquarters.
Appellants placed the ordinance in evidence. They called as a witness Jerome, custodian of the areaway in question, who stated he had not given appellee permission to be in the park after 10:30 P.M., and he also stated he did not issue permits. There is no showing that his area was posted as park property.
Based upon the foregoing record, the Court withdrew from the jury all question as to violation of the ordinance. Appellants, in asserting error, rely upon the well established rule that where there is a conflict in testimony, it is for the jury to decide. That this is the general rule is not disputed. However, it is also the rule that where the evidence is such that all reasonable men must draw the same conclusion, then these questions become of law for the Court. Gowing v. Henry Field Co., 225 Iowa 729, 281 N.W. 281; Wilson v. Findley, 223 Iowa 1281, 275 N.W. 47; Ross v. Automobile Ins. Co., 228 Iowa 668, 292 N.W. 813; Donahue v. Denman, 223 Iowa 1273, 275 N.W 154, 155. Under this record, giving to appellants' testimony upon this claimed defense of justification every favorable construction possible, the record is of such conclusive character, to the effect that there was no question of ordinance violation involved, that a verdict so finding would have to be set aside. There is no error in the stricking of this Issue and withdrawing same from the jury.
II. Appellants' second assignment of error deals with refusal of the trial Court to instruct the jury that it should not consider the question of race, and of misconduct on part of appellee's attorney.
(1) The record shows appellee's escort, David Davies was colored. It also shows that appellee, while of light complexion, is also a member of the colored race. It was alleged by appellee in her petition that the sole cause of the arrest was the mistaken opinion that she was a white girl and in the company of a negro. The record shows that she was questioned at the Police Headquarters as to her nationality and then released. Upon motion of appellants, after the close of the testimony the court withdrew from the jury all allegations in appellee's pleadings dealing with the question of race. The requested instruction was to the effect that there was no question involved of civil rights and any question as to the appellee being white, should not be considered by the jury. There was no motion to withdraw from the jury the testimony of the various witnesses relative to questions asked as to appellee's race. The question of civil rights was not in issue as such, although there was the question of race and color as being involved in the making of the arrest. The court properly overruled defendants' requested instruction.
(2) Error is also predicated upon alleged misconduct of appellee's attorney in referring to the race question. We have examined the record and find no error on account thereof. Appellee's theory of the case was based upon this racial question. Such question was raised as an issue in the pleadings and so remained until the close of all the testimony. Appellee had the right to present her theory of the case, so long as...
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