Lawyer v. Stansell
| Decision Date | 14 November 1933 |
| Docket Number | 41996 |
| Parties | M. G. LAWYER, Appellant, v. TOM STANSELL et al., Appellees |
| Court | Iowa Supreme Court |
Appeal from Clarke District Court.--H. H. CARTER, Judge.
An action for damages against the defendant sheriff, for an assault committed in shooting the plaintiff in an attempt to make an arrest. The facts appear in the opinion. There was a trial and verdict for the defendant. The plaintiff appeals.
Affirmed.
Watson & Watson, for appellant.
M. R Stansell and O. M. Slaymaker, for appellees.
This was an action at law against Tom Stansell, sheriff of Clarke county, Iowa, for damages by reason of an assault and battery. There was a general denial and plea of justification. A trial to a jury resulted in a verdict for the defendant. The court overruled a motion for new trial and exceptions to instructions, and rendered judgment against the plaintiff for costs. The plaintiff appeals.
The incident of which plaintiff appellant complains, occurred in the city of Osceola, Clarke county, Iowa, at about 3:30 a m., September 5, 1932, and at the junction or intersection of federal highways No. 34 and No. 65, which was two blocks from the courthouse square or the business district of Osceola. The plaintiff's residence was at Indianola, Iowa, which is north of Osceola. On Sunday, September 4, the appellant had been engaged in making a real estate deal or trade and had driven over the same route, highway No. 65, three or four times in carrying on his negotiations. On Monday morning September 5, he claims to have completed his deal with some parties residing some 20 miles south of Osceola and started to his home in Indianola. He stopped at an oil station in Leon, a town about 20 miles south of Osceola at about 3:15 a. m., obtained some gasoline, and proceeded north on highway No. 65. In a very few minutes after plaintiff left the oil station at Leon, the station was robbed, the robbers being armed and shooting at the night watch as they left the station, proceeding north toward Osceola on highway No. 65. The sheriff at Leon, in Decatur county, was immediately notified of the robbery and phoned to the defendant-appellee, Tom Stansell, who was the sheriff of Clarke county, residing in Osceola, advising him of the fact of the robbery; that the robbers were proceeding toward Osceola; that they were armed and had shot at the officers at Leon; that they were desperate characters and to watch them, and to go out, stop, arrest, and hold them for the sheriff of Decatur county. Sheriff Stansell called his deputy, who was his son, dressed hurriedly and proceeded to the intersection of highways No. 34 and No. 65. At this junction or intersection there were oil stations on each of the respective four corners, two of which remained open all night. The intersection was well lighted by the lights from these stations, a flood light from one of them, and a large street light over the intersection. Highway No. 65 was paved about 30 feet wide with brick, which commenced two blocks south of the intersection and continued some five blocks north. The street light was of 500 candle power, and would light up the intersection for more than 100 feet in each direction. The testimony is that there was light enough at the intersection at that time so that a man could be recognized for a distance of more than a block. The sheriff and his deputy drove their car about halfway across the pavement at the intersection, effectually blocking the east lane of the highway, and got out of the car and went to the center of the intersection. They heard a car coming from the south some distance away, which from the sound of the motor was being driven about 60 miles an hour. The car had very bright lights and as it came in sight of the sheriff and his deputy, the sheriff, who was standing under the street light so that he could be seen, took off his hat and began waving it, and his deputy used a flashlight in the same way. When the approaching car was about a block south of the intersection, the sheriff cried out loudly: "Hey there, stop, stop". The approaching car cut off the gas and slackened momentarily and then was opened wide open and proceeding directly toward the sheriff at a speed of 50 to 60 miles per hour. The sheriff attempted to step out of the way, but was struck by the side of the car and fell to the pavement, and immediately fired two shots at the car, and his deputy also fired three shots. The car then veered sharply to the left or west side of the pavement to go around the sheriff's car, and proceeded north toward the public square without slackening its speed. The sheriff and his deputy, and a night watch, hurriedly got into their car and started in pursuit, the sheriff declaring to his deputy and the night watch, "Come and get in this car, we want to catch those fellows". A railroad train was blocking the crossing on No. 65, a few blocks north, and the sheriff said that he thought the robber's car had turned in order to go under a subway and get out of town that way, and, in driving his car in that direction, he saw a tail-light of a car standing in front of a hospital. It was the only car in sight at that time. He drove down to where the car was parked, examined it, found both front doors wide open, considerable blood upon the right front seat, and some on the driver's seat, and also upon the rear seat of the car. The sheriff and his two companions then went into the hospital. There is some controversy in the testimony as to what took place in the hospital. The defendant and two of his witnesses testified that the plaintiff, who was being cared for in one of the rooms of the hospital, called out before he had seen the sheriff and said, "Tom, why did you shoot me"? The plaintiff, the doctor, and two of his attendants testified that the sheriff spoke first and said, "Why didn't you stop"? The plaintiff had been shot with a 45 caliber bullet, which passed through the right door of the car, through his right leg, and the bullet was buried in the center of the large bone of the left leg a few inches above the knee. The plaintiff was confined in the hospital for about three weeks, and the testimony shows the injury was severe and permanent. The plaintiff testified that he saw the men at the intersection when he was a block or two south but did not recognize the sheriff, whom he knew well, and thought the men were tourists looking at the road signs. He did not think they were robbers or that he was liable to be held up. The sheriff and other witnesses at the intersection, where the incident occurred, testified that they could not see what kind of a car was approaching and could not see any one in the car, nor how many people there were in the car, as it approached and passed. At the time the sheriff of Decatur county called the defendant and advised him of the robbery, he told him the county number on the car was 92. The number on plaintiff's car was 91. The sheriff testified that he honestly and in good faith believed that the car which approached and passed him was the robber's car.
The plaintiff in his petition alleged that:
"The defendant, Tom Stansell, committed assault and battery on this plaintiff by shooting him with a revolver while the defendant Stansell was in the exercise of his duties as sheriff of Clarke County, Iowa, and in excess of said duties; that said assault and battery was without just cause; that the defendant Stansell did not have reasonable cause to believe that this plaintiff had committed a felony; that the defendant Stansell used unreasonable force in attempting to stop this plaintiff."
The case was tried upon these allegations and this theory. After both parties had rested and the defendant's motion for a directed verdict had been overruled, the court, in ruling on the motion, had advised counsel for plaintiff , the plaintiff asked leave of the court to amend his petition to conform to the proof, by adding thereto the following:
"That all of the acts complained of in the manner stated were done by the defendant, Tom Stansell, either personally or by M. T. Stansell, who was then and there present, and who was at said time the duly appointed and acting deputy sheriff of Clarke County, Iowa, and who then and there likewise fired upon this plaintiff, and this plaintiff does not know whether the bullet that struck him was fired by the said defendant, Tom Stansell, or by the said M. T. Stansell, but alleges the fact to be that it was fired by one or the other in the manner hereinbefore alleged, and under the circumstances hereinbefore alleged in every particular."
Objection was interposed to the filing of this amendment on the grounds that...
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