Fox v. McCurnin

• Decision Date: 13 March 1928
• Docket Number: No. 38919.,38919.
• Citation: 218 N.W. 499,205 Iowa 752
• Parties: FOX v. MCCURNIN.
• Court: Iowa Supreme Court

205 Iowa 752

218 N.W. 499

FOX

v.MCCURNIN.

No. 38919.

Supreme Court of Iowa.

March 13, 1928.

Appeal from District Court, Polk County; Lester L. Thompson, Judge.

Action against the defendant for damages because of assault and battery, false arrest, false imprisonment, and libel and slander. Plaintiff dismissed his claim for libel and slander, the court took the question of assault and battery from the jury, and submitted the other questions to the jury, which returned a verdict in favor of the defendant. Plaintiff appeals. Reversed.S. B. Allen, of Des Moines, for appellant.

Guy A. Miller, of Des Moines, for appellee.

ALBERT, J.

As above indicated, plaintiff pleaded four causes of action against the defendant, set out in separate counts in his petition. In the first count he pleaded assault and battery; second, false arrest; third, false imprisonment; and fourth, libel and slander. As heretofore noted, the fourth count was dismissed, and, on motion at the end of plaintiff's testimony, the first count was taken from the jury. The answer was a general denial.

The general history of the transactions out of which this action arose is about as follows: Fox was a tenant of a suite of rooms in the St. Elmo apartments in the city of Des Moines, Iowa, owned by the defendant. He had occupied these rooms for nearly two years. The rent was due monthly, and at the time in question he was several months delinquent in the payment thereof. Fox was a traveling salesman by occupation, and was out of the city most of the time. He returned to the city on June 25, 1926, and on going to his apartment was advised by the housekeeper in charge that he must pay his rent or move out. He advised her that he would pay the rent for the current month and would make some arrangements with the owner with reference to the overdue rent. The plaintiff left his apartment in the evening, going to see his mother at a hospital. He had personal property in the room at the time in question. He left the apartment about 8 o'clock on Saturday morning and returned about 5 o'clock in the evening. The doorknob had been taken from the door, which was locked. Mrs. Cosgrove, the woman in charge, told him that he would have to get in touch with Mr. Ferrier, who was an attorney and had charge of the collection of rents for McCurnin. Fox called Ferrier by telephone, told him he could pay the current month's rent but not all of the rent that was in arrears. Ferrier told him that the rent must all be paid or the door would “stay locked.” He then told Ferrier that he would be back in about two hours and expected the door to be open, and, if it were not, he would find some way to get in. He returned in about two hours and inquired if Ferrier had been there, and was told that he had been there but had gone and had not unlocked the door. At this time Ferrier. McCurnin, and two other men were in another room waiting for Fox to return. Fox told Mrs. Cosgrove that he was going to get in some way. He went to the room and found the door in the same condition. He says:

“I was there three or four minutes trying some way to get in, when these four men rushed around the corner and attacked me. They came running. I recognized McCurnin. He cried, ‘Kill him; that's him; get him; smash him!’ and proceeded to jump onto me. They struck at me with their fists and said, ‘Get him; smash him; kill him; that is him!’ I tried to get away, and ran down the hall, where I met another man standing at the top of the stairs. He tried to throw his arms around me, but I evaded him and fell downstairs and went through the door at the bottom of the stairs into the street. I crossed the street, went east on Locust, and ran to the Masonic building and stopped. The man who tried to stop me at the head of the stairs ran after me. I walked east to Sixth and Locust and went north. My hat was knocked off in the scuffle in the apartment, and a bundle of laundry knocked out of my arm. When I got to Sixth and Locust, some one whistled and yelled at me, and I turned around and the traffic policeman (Feeters) was motioning to me to stop. I stopped, and Policeman Feeters, with McCurnin, came up to me and wanted to know what was the matter. I tried to explain, and McCurnin said, ‘Arrest him; take him down.’ They took me to Hyman's Book Store on Sixth street just above Locust and called the patrol. They put me in, and McCurnin left afterwards. They took me to the police station to the bulletin room, and put my name on the book, and the time I was arrested. Then McCurnin came in. Capt. Sheehan wanted to know what was the matter, what he was going to do, and he asked Capt. Sheehan to lock me up. He told him I had attempted to break and enter his apartment. Capt. Sheehan said to file an information right then, but he said he would do it Monday morning. Then McCurnin went into the private office and shut the door. They were there about ten minutes and came out, and the captain said, ‘Lock him up.’ He said they were booking me for investigation. They searched me and put me in a cell about 8 o'clock at night and locked me up.”

[1][2] Some further testimony may be referred to later, but the first question raised is alleged error of the court in taking from the jury the first count, to wit, the assault and battery charge. In reviewing this error, of necessity we must take the testimony in its most favorable light to the plaintiff. The above recitation of the material part of the testimony is taken from the evidence of the plaintiff. At this point in the case we are of the opinion that the court erred in taking the question of assault and battery from the jury, as the evidence above recited, in our opinion, was sufficient to take this question to the jury.

[3][4][5] Several other assignments of error are made, most of which do not comply with our rules and will not be given attention. One assignment, however, is entitled to attention and that is an alleged erroneous rulingon testimony. After the plaintiff testified that he was confined in the jail, he was asked the question whom he found in the jail, and also to describe the condition of the room in the jail where he was placed. Objections to these questions were sustained. Of course we cannot assume what the answers to either of these questions would have been, and the plaintiff did not state into the record what he expected they would be. Under such circumstances, the ruling was not erroneous, although the court might well have allowed the answers, and, had they shown that the same was not material they could have been stricken. It seems to be permissible in such cases to show the condition of the jail, and, if it were in a filthy or uninhabitable condition, the same would be taken into consideration in determining the damages. 25 C. J. 557, § 170; 11 R. C. L. 820, § 35; Stoecker v. Nathanson, 5 Neb. (Unof.) 435, 98 N. W. 1061, 70 L. R. A. 667.

Another error which is entitled to attention is an attack on an instruction which reads as follows:

“The burden of proof in this case is upon plaintiff, and, before he can recover anything from the defendant, McCurnin, he must establish by a preponderance or greater weight of the evidence all of the following propositions, numbered 1 to 4, inclusive:

First. That the plaintiff was arrested and imprisoned without a warrant, and without having committed a public offense, or without having attempted to commit a public offense, in the presence of the officer making the arrest.

Second. That there was no reasonable ground for believing that plaintiff had committed a public offense.

Third. That the arrest and imprisonment was caused by the defendant, Thomas P. McCurnin, and that the plaintiff was released without any information or charge having been filed against him.

Four. That plaintiff has been damaged in some amount thereby.

If you find affirmatively by a preponderance or greater weight of the evidence, as to each and all of the foregoing propositions, then your verdict will be for the plaintiff in such an amount as you find he is entitled to recover under the evidence and these instructions.”

In a later instruction it was said, among other things:

“It was required that the plaintiff prove by a preponderance of the evidence that the plaintiff himself had committed no public offense or had not attempted to commit a public offense in the presence of Thomas P. McCurnin, or that the defendant, Thomas P. McCurnin, did not have reasonable ground for believing that the plaintiff, Fox, had committed a public offense.”

It is apparent from these instructions that...