McVay v. Carpe

• Citation: 29 N.W.2d 582,238 Iowa 1131
• Decision Date: 11 November 1947
• Docket Number: 47097.
• Parties: McVAY et al. v. CARPE et al.
• Court: United States State Supreme Court of Iowa

29 N.W.2d 582

238 Iowa 1131

McVAY et al. v. CARPE et al.

No. 47097.

Supreme Court of Iowa

November 11, 1947

Bert Hextell, C. I. McNutt and Don Beving, all of Des Moines, for appellants.

Tesdell & Tesdell, of Des Moines, for appellees.

MANTZ Justice.

This action was brought by the plaintiffs, Ronald W. McVay and Herbert Kerkman, against defendants, Albert Carpe and George C Cessna, and therein plaintiffs asked for damages for false arrest and imprisonment at the hands of the defendants alleging that they had been subjected to physical and mental discomfiture, embarrassment, humiliation and loss of social standing, and in the case of McVay, loss of employment, alleging that defendants had no reasonable or legal grounds for arrest and that in so doing defendants acted illegally.

The defendants, admitting the arrest, allege that in so doing they acted within their legal rights and claimed that they had reasonable grounds for believing that the plaintiffs had been participating in various breaking and enterings in the city of Des Moines, and further, that plaintiff, McVay, was arrested for violating a city ordinance requiring the drivers of automobiles to stop their vehicles at a stop sign then existing at the intersection of Douglas and Beaver streets in said city.

The cause was tried to the jury and a verdict of $1,500 was rendered in favor of each plaintiff and against each defendant. A motion for a new trial was made and this was overruled on condition that each plaintiff file a remittitur for all amounts of the judgment in excess of the sum of $1,000. Such remittiturs were filed as required. Defendants have appealed.

Hereinafter we will refer to plaintiffs as appellees and to the defendants as appellants. In the original pleadings there was a third defendant, one Marasco, but the case was dismissed as to him and he is not involved in this appeal.

I. During the spring of 1946 there had been a series of breakings and enterings of various establishments, principally service stations in the northwestern part of the city of Des Moines, and the police department had assigned detectives to cover that area with the purpose of apprehending the offenders. The two appellants were among those so assigned. On the night of June 1, 1946, appellees McVay of Des Moines, and a visiting brother-in-law, Herbert Kerkman, a resident of Bridgewater, Iowa, were proceeding to McVay's home, located west of the intersection of Beaver and Douglas streets in Des Moines. McVay was a returned service man, was married, with a wife and two children, and was then employed at the Walgreen Drug Store of Des Moines. Shortly after the McVay vehicle had proceeded west on Douglas Street from its intersection with Beaver street, the appellants stopped the McVay car and informed the occupants they were under arrest. This arrest took place between 2 and 3 o'clock in the morning. Between the time of the closing of the Walgreen store and that of the arrest appellees had taken lunch, gone to a movie and also a night club located on Keo Way, a main thoroughfare into Des Moines from the northwest. After the arrest they (appellees) were questioned briefly, their names and addresses taken, the car was searched and both were taken to the police station and placed in separate cells. Both appellees state that when they were arrested they inquired the cause but received no information save a reply, 'You will soon find out.' Something was also said to the effect that the McVay automobile had run a stop sign at the junction of Beaver and Douglas. At the police station a bulletin of arrest was made for each appellee. Said bulletin gave data as to name of person, residence, sex, nationality, age, time of arrest, officer making arrest, etc. These bulletins are part of the permanent records of the police department. On each bulletin under the head of 'charge' is found the notation, 'Investigation Dets.' Under the head of 'remarks' are words, 'See bulletin No. 3350.' This bulletin referred to McVay; bulletin No. 3351 referred to Kirkman (Kerkman) and both gave practically the same information given in the bulletins of arrest. The only data therein showing why either appellee was held was 'Investigation.' All these records show that the arrests were made by appellants at 3:30 a.m. on June 1, 1946. They show that both were released at 2 p.m. On the McVay bulletin under the head of 'remarks' we find the following: 'This man has been running around with John Baker and John Carney. They were out at Val Air together. Might do for some of B. E. This fellow works at Walgreen store. Has a Chevrolet car on Lot No. 1-1495. It has an extra set of hub caps in his car.' Signed, 'Castelline.' Castelline under the record is Inspector of Detectives of the Des Moines Police Department. Castelline testified that they examined John Baker and John Carney (then in jail) and that neither of them involved either McVay or Kerkman and he released them. Appellant Carpe testified as to the arrest. On cross-examination he said, 'We just had them for investigation. We believed they had committed the crimes but had to have further investigation on it. That I never filed charges against them. If all we wanted him for was running through the boulevard, the proper procedure was to take the name of his car, license number, and give him a summons to appear the next morning at nine o'clock. In our department take him down to jail. We wanted him for something besides running through the boulevard. I didn't give him a summons * * *.'

After McVay was released he was discharged from his employment at Walgreen's. He testified he talked to the manager, a Mr. Hayes, and was told that some one else was in his place. We quote: 'He said also, due to the fact that I was in jail it got to the papers he didn't want the advertisement for the store.' McVay further stated that he was out of a job for a month and at the time of the trial was a student in Drake University and worked part time in another drug store. It was not until the next day that any information was given appellees why they had been arrested and McVay was told he had been seen in the company of John Carney. The latter had worked at the Walgreen store during a part of the time McVay worked there. Kerkman was not acquainted with either Carney or Baker.

II. The first division of appellants' brief sets out three claimed errors. Summed up they are as follows:

(1) That the court erred in refusing to direct a verdict for appellants when appellees rested--also at the close of taking evidence;

(2) That the court erred in overruling the motion to withdraw from the jury the issue of false arrest as to appellee McVay.

(3) That the court erred in overruling appellants' motion for a directed verdict, and that to withdraw from the jury the issue as to the arrest of McVay.

Taking up the first paragraph of Division I of the brief and argument of appellants we hold that there was no error in the ruling of the court when appellees rested and when all the evidence was in. The motion made when appellees rested was directed toward both appellees. As the record showed an arrest without a warrant and the incarceration of appellees, they had made out a case for the jury. The burden would then be cast upon appellants to justify their act in arresting appellees. As McVay was the driver of the automobile, certainly it could not be claimed that appellee Kerkman has liable for arrest in failing to observe the stop sign. When the evidence was all in there remained the issue as to whether the appellants had shown sufficient evidence to justify the arrest; in other words, that became a question of fact for the jury; and such being the record the motion to direct a verdict for appellants was properly overruled.

We will next consider the motion as directed to appellee McVay, the driver of the automobile at the time of the arrest. Kerkman was with McVay in the car. Both were arrested without warrant, taken to the police station and placed in jail. No charges were filed against either of them and they were released about twelve hours later. At the trial below, appellants claimed that McVay was arrested for failing to stop at a stop sign at the intersection of Douglas and Beaver streets in Des Moines. However, no charge for such claimed offense was ever filed against McVay, driver of the automobile. Evidently Kerkman was arrested and taken to jail for the reason that he was found in McVay's company. Nowhere is there made any claim that he was even remotely connected with any of the individuals who were under suspicion for the breakings and enterings. We think it is clear from the record that the arrests were not made because McVay violated the stop sign at that point. Carpe, one of the arresting officers, stated as a witness that that was not the real reason for McVay's arrest. We think it is equally clear that both appellees were arrested on suspicion that they had participated in various breakings and enterings about that time and in that neighborhood.

Regarding the claim that McVay failed to obey the stop sign, thereby committing a public offense in the presence of the officers, giving them a legal right to arrest him, the court by instruction dealt with such claim as follows: 'If you find by a preponderance of the evidence that plaintiff, McVay, in the presence of the defendants drove his automobile through said stop sign without first stopping, the defendants had the right under the law to arrest said plaintiff and take him to jail and they would not be liable in damages for so doing.'

Appellants argue that McVay at the time they arrested him admitted that he didn't stop at the stop sign thereby admitting that he had committed a public offense and therefore could not claim...