McClurg v. Brenton

• Decision Date: 16 March 1904
• Citation: 98 N.W. 881,123 Iowa 368
• Parties: HARRY MCCLURG, Appellant, v. JAMES M. BRENTON, FRED BRACKETT, W. P. CREWSE, CHARLES DAVIS, Appellees
• Court: Iowa Supreme Court

98 N.W. 881

123 Iowa 368

HARRY MCCLURG, Appellant, v. JAMES M. BRENTON, FRED BRACKETT, W. P. CREWSE, CHARLES DAVIS, Appellees

Supreme Court of Iowa, Des Moines

March 16, 1904

Appeal from Polk District Court.--HON. W. H. MCHENRY, Judge.

ACTION at law to recover damages for an alleged unlawful search of plaintiff's premises. Verdict for defendants by direction of the court, and judgment accordingly. Plaintiff appeals.

Reversed.

McVey McVey & Graham and J. D. Laws for appellant.

Read & Read and Myerly & Myerly for appellees.

OPINION

WEAVER, J.

That the appellees did search the house and premises of the plaintiff for the discovery of alleged stolen property, and that such search was made without any warrant issued for that purpose, was not denied on the trial below, and is conceded in argument. The claim is made, however, that this act otherwise unlawful, was done with the consent of the plaintiff, and it was upon the theory that this defense had been established without substantial dispute that the trial court directed a verdict against the appellant. We have therefore to consider whether the evidence made a case from which the jury might properly have found in appellant's favor. At the date of the transaction in question, the defendant Brenton was mayor of the city of Des Moines Brackett was chief of police, and Crewse was captain of the night force of said city. Plaintiff was the head of a family, residing in Des Moines, near the boundary line between that city and the town of Valley Junction. The evidence, giving it the most favorable construction which it will reasonably bear in plaintiff's favor, as we are required to do for the purposes of this appeal, tends to show the following state of facts: On or about May 2, 1902, "a Mr. Brown" informed the mayor that a neighbor, from whom some chickens had been stolen, desired the officers to bring out certain bloodhounds kept in the city, and try to trace the thief. Responding to this call in person, the mayor on the same evening started for the scene of action, accompanied by quite a retinue of followers. Among the number were the chief of police, the captain of the night force, a city alderman, the city physician, the "man with the hounds," and various other gentlemen, presumably volunteers in the cause of retributive justice. The order and line of march are not made clear by the testimony, and we have not been favored with any maps or charts showing the disposition of the forces. It does appear that some time during the evening they rendevoused at Valley Junction, from which base of operations the advance upon plaintiff's house was made about ten or eleven o'clock p. m. The dogs were taken to the premises of the person who claimed to have lost the chickens, and there turned loose for a trial of their detective skill. Following their lead, as is claimed, the mayor's forces came to the home of the plaintiff, who, unsuspicious of this canine impeachment of his good name and fame, had retired with his family for the night. The mayor and captain of the night force advanced to the door, gave the alarm in due form, and demanded entrance. Soon the door opened "about five or six inches," it is said, revealing the plaintiff clad in a night-robe, and armed with an iron poker. The captain, turning his head aside to avoid an anticipated blow from the poker, at the same time deftly inserted his foot between the door and the jamb, thereby retaining all the advantage thus far gained. The mayor, noting the captain's peril, interposed to prevent any assault upon him by promptly warning the plaintiff: "None of that goes here. I am mayor of the city of Des Moines, and we are here on official business." Naturally this proclamation tended to chill the ardor of the defense, and the door was soon opened--whether by the act of the plaintiff from within, or by pressure from the party without, is a matter of controversy.

The defendants testify that, on being informed of the official character of the mayor's party and the object of their call, plaintiff allowed them to proceed and make the search and, if this was not disputed, the ruling of the lower court could, perhaps, be sustained, although it is not free from doubt that a consent obtained in the manner, and under the circumstances portrayed by the defendants themselves, would be, in any just sense of the word, a free and voluntary act. But the evidence as to the alleged consent is by no means all one way. Plaintiff and his two sons distinctly deny that consent was given to the entry into the house or to its search, and declare that the door was forced open against the resistance of the plaintiff, that the poker was forcibly wrested from plaintiff's hands, and that, when one of the sons attempted to hand the key of the chicken house to his father, one of the mayor's party unceremoniously took possession of it, and thereby gained entrance to the chicken house. In some material respects their story finds corroboration in the testimony of the witnesses for the defense. There is testimony, also, that the search was conducted, by some of the party at least, in a loud and boisterous manner, and with little regard for the sensibilities of the plaintiff and his family. One of the searchers candidly admits that he was a "little enthused," and did not pay much attention to the details; and it is said by one witness that another member of the party became somewhat confused as to the real object of the search, and demanded to know whether there was "any beer in the cellar." The discouraging answer that there "was no cellar" seems not to have been fully credited, for it is further testified that the knot holes in the floor were carefully probed with a pocket rule, to ascertain the amount of available space thereunder. Upon such a state of the record, we think it very clear that the...