William WHIRL, Appellant, v. C. V. (Buster) KERN and Fidelity and Deposit Company of Maryland, Appellees.
No. 24897.
United States Court of Appeals Fifth Circuit.
Dec. 30, 1968.
As Amended on Denial of Rehearing and Rehearing En Banc Denied March 4, 1969.
407 F.2d 781
Plaintiff claims that the District Court erred in directing a verdict for defendant Dilling. The plaintiff failed to show any evidence that Dilling was aware of the prior conveyance to Jones or that he in any way acted to defraud Loeb. The mere fact that Dilling represented Hammond in the negotiations, without more, could not support a finding of fraud. Plaintiff‘s reliance on Bliesener v. Baird and Warner, Inc., 88 Ill.App.2d 383, 232 N.E.2d 13 (1967), is misplaced because in Bliesener the real estate agent who defrauded the buyer had knowledge of the pending foreclosure. Therefore, the District Court acted properly in directing a verdict for Dilling.
Plaintiff next contends that it was error to fail to instruct the jury on exemplary and punitive damages. Under
It was not error to refuse to permit Thomas Boodell, an attorney representing Eugene Howard, to testify as an expert witness as to the legal significance of the various papers signed by Hammond and Loeb on June 1, 1962. The question of interpretation of the contract is for the jury and the question of legal effect is for the judge. In neither case do we permit expert testimony. 3 Corbin on Contracts, § 554, 226-27 (1960). This case is distinguishable from Hiltpold v. Stern, D.C.Mun. App., 82 A.2d 123, 126, 26 A.L.R.2d 852 (1951), where the attorney was allowed to testify as to the facts surrounding the negotiations.
As to the defendant Hammond, the District Court did err by allowing Hammond to introduce testimony as to his character and reputation. The majority of courts have held that in a civil suit based on fraud, the reputation of the defendant is not in issue. See Annotations in 78 A.L.R. 643, 645. Cf. Cleary, Handbook of Illinois Evidence §§ 12.4, 12.5 (2d Ed.1963). This rule has been adopted in Illinois, McBean v. Fox, 1 Ill.App. 177 (1878), and should be applied in diversity cases. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487 (1938). Plaintiff relies on People ex rel. Collins v. Matt, 224 Ill.App. 210 (1922), to say that the Illinois law has changed. However, Matt was a bastardy proceeding in which the reputation of the party is in issue. Since the only evidence defendant Hammond presented is the testimony of these character witnesses, the error was prejudicial to the plaintiff. Therefore, as to defendant Hammond, this case must be remanded for a new trial. As to defendant Dilling, we affirm.
Affirmed in part, remanded in part.
Charles David Kipple, Clarence F. Kendall, II, Houston, Tex., for appellant, Saccomanno, Clegg, Martin & Kipple, Houston, Tex., of counsel.
William R. Eckhardt, III, James R. Bertrand, Houston, Tex., for appellee C. V. (Buster) Kern, Vinson, Elkins, Weems & Searls, Houston, Tex., of counsel.
Before GOLDBERG and CLAYTON,* Circuit Judges, and HANNAY, District Judge.
GOLDBERG, Circuit Judge:
We review here, in an action for false imprisonment under
The evidence in this case is largely undisputed. On September 9, 1962, the appellant, William Whirl, was arrested on suspicion of felony theft by the City of Houston police and placed in the Houston city jail. Two days later Whirl was transferred to the Harris County jail where he was booked, identified and deprived of the use of his artificial leg. On September 20, 1962, an examining trial was held and Whirl was bound over to the Harris County Grand Jury. Some weeks later the Grand Jury returned two indictments against him, one for burglary and one for theft.
On November 4, 1962, on the motion of the Harris County District Attorney, the indictments pending against Whirl were dismissed by a judge of the Criminal District Court of Harris County, Texas. The District Attorney had sought and obtained dismissal of the indictments on the grounds that the evidence against Whirl was “insufficient to obtain and sustain a conviction.” The minutes of the court for November 5, 1962, recited the dismissal of the indictments, and a list of dismissals was then sent to the Sheriff‘s office, but the Sheriff who keeps the county jail testified that he was not apprised of these proceedings. As a result, Whirl languished in jail for almost nine months after all charges against him were dismissed, and was not restored to his freedom until July 25, 1963.
The breakdown in communication which led to Whirl‘s prolonged detention is not easy to trace. Documents are constantly transmitted among the courts, the District Clerk‘s office, the District Attorney‘s office, and the Sheriff‘s office, and recollection as to what happened in any particular instance is nec-
Ordinarily, when charges are dismissed by a nolle prosequi, a member of the District Clerk‘s staff prepares a dismissal slip and forwards it to the Warrant Division of the Sheriff‘s office. Since the two offices are in the same building along with the jail, such communications are routinely made several times a day.
A record of the dismissals is also recorded in a journal or ledger kept in the District Clerk‘s office. This journal is sent to the Sheriff‘s office regularly, either separately or in conjunction with the dismissal slips, and receipt of the journal is acknowledged in writing by a sheriff‘s deputy. It is also customary for deputies in the Sheriff‘s office to make trips to the District Clerk‘s office in order to check the dismissal book themselves.
On the occasion following termination of charges against Whirl, dismissals had been rather numerous. As a result the Clerk‘s office prepared a list of cases which had been dismissed instead of the usual individual dismissal slip for each prisoner. This procedure, though rare, had been used before on similar occasions. Whirl‘s name was unquestionably included on that list, and the list was duly received by the Sheriff‘s office. Whirl‘s name was also entered in the dismissal book.
For some reason never adequately explained, the list of dismissals was not processed, and Whirl‘s freedom was lost in a shuffle of papers. Being too poor to raise bail, he was forced to remain in the courthouse lockup. Months later when attempts to set his case for trial prompted the District Attorney to check his file, it was discovered that all charges against him had been dismissed.
Following his release, Whirl filed this suit.
Whirl brought his action against C. V. (Buster) Kern, the Sheriff of Harris County, Texas, and against the Fidelity and Deposit Company of Maryland, the surety on the Sheriff‘s official bond. Trial was to a jury. At the close of all the evidence, plaintiff moved for a directed verdict, and when his motion was denied, the case was submitted to the jury on special interrogatories as to negligence, contributory negligence, proximate cause and damages. The jury found that Kern was not negligent in detaining Whirl in custody. It also found that Whirl was not contributorily negligent in failing to seek his own release, and that he had suffered no damages as a result of his imprisonment. On this appeal, Whirl contends that the district court erred in not granting his motion for a directed verdict and in denying his motion for a new trial as to damages. Appellant argues that all the elements of his cause of action under the Civil Rights Act and under the Texas law of false imprisonment were established as a matter of law by the undisputed evidence, and that no fact issue apart from damages remained for the jury. He further argues that the jury‘s finding of no damages was contrary to the weight of the evidence and that the district court erred in instructing the jury to disregard the removal of appellant‘s artificial leg in assessing the extent of his injury.
Appellee, Kern, responds to these allegations of error by defending each act of the district court, and by arguing in the alternative that his actions toward Whirl were outside the scope of the Civil Rights Act. Kern maintains that the Act is aimed only at reprehensible conduct, and that his incarceration of Whirl was entirely free of improper motive or unlawful intent.4
Turning first to appellees’ contention that the Civil Rights Act is limited in scope to reprehensible conduct, we note that some courts have so construed it. Hardwick v. Hurley, 7 Cir. 1961, 289 F.2d 529, 530-531; Striker v. Pancher, 6 Cir. 1963, 317 F.2d 780, 784; Bargainer v. Michal, N.D.Ohio, 1964, 233 F.Supp. 270, 272-273; Raab v. Patacchia, S.D. Cal.1964, 232 F.Supp. 71-74; Beauregard v. Wingard, S.D.Cal.1964, 230 F.Supp. 167, 185; Selico v. Jackson, S.D. Cal.1962, 201 F.Supp. 475, 478. However, in our view the trend of recent decisions and the language of the Statute itself cannot be reconciled with so restrictive an interpretation.
Decisions of the Supreme Court have repeatedly noted that a complaint under the Civil Rights Act should not be dismissed for failure to state “a specific intent to deprive a person of a federal right.” Monroe v. Pape, 1961, 365 U.S. 167, 81 S.Ct. 473, 484, 5 L.Ed.2d 492, 505; Pierson v. Ray, 1967, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288, 296. The Civil Rights Act, we are told, should be read “against the background of tort liability that makes a man responsible for the natural consequences of his actions.” Monroe v. Pape, supra. We do not find in this language or in the language of the Act itself any intimation that an invasion of constitutional rights unaccompanied by an improper motive lies beyond the reach of the Statute.
We are supported in this view by the recent decision of the Seventh Circuit in Joseph v. Rowlen, 7 Cir. 1968, 402 F.2d 367. In that case the Court of Appeals overruled some of its own earlier decisions, and in reversing a directed verdict for the defendant, disavowed the concept of improper motive:
The formulae suggested at times for distinguishing causes of action which are cognizable in federal court from those which are not have usually required for a federal cause of action facts indicating flagrancy or an improper motive.
One serious difficulty with such formulae is that there is nothing in the language of sec. 1983, or the fourth and fourteenth amendments as presently construed, on which to base such tests.
Although the Supreme Court has found that certain defenses to a sec. 1983 cause of action exist, apparently by implication, they are defenses typical of tort causes of action. 402 F.2d at 369.
Since Monroe v. Pape, supra, this Court has consistently avoided attaching any requirement of ulterior purpose or improper motive to the statement of a cause of action under
This treatment of the improper motive requirement appears in keeping with the Supreme Court‘s position on the availability of defenses under the Civil Rights Act. As we read Pierson v. Ray, good faith and probable cause are defenses to an arrest not because of any language in § 1983, but because § 1983 must be read in a manner consistent with the background of tort liability.
We see no reason why the improper motive requirement should not also be dependent upon the common law of torts. Nothing in the Civil Rights Act or in decisions of the Supreme Court compels otherwise. In fact, the unmistakable trend of judicial decisions has been away from the encrustation of the Civil Rights Act with judicially created limitations. Whereas the Act was once rigidly limited to instances of systematic discrimination5 or physical brutality,6 in recent years courts have shown themselves increasingly willing to entertain suits under § 1983 where even improper motive is hard to find. Huey v. Barloga, N.D.Ill.1967, 277 F.Supp. 864; Quinnette v. Garland, C.D.Cal.1967, 277 F.Supp. 999; Delatte v. Genovese, E.D. La.1967, 273 F.Supp. 654; United States ex rel. Diamond v. Social Service Department, E.D.Pa.1967, 263 F.Supp. 971. Cf. Jobson v. Henne, 2 Cir. 1966, 355 F.2d 129. In surveying this historical progression, we are, like the Seventh Circuit, impressed with the lack of justification for the improper motive requirement. We find no more basis for it in the language of the Act or in Supreme Court decisions than for the now rejected requirement of systematic discrimination. Cf. Cohen v. Norris, 9 Cir. 1962, 300 F.2d 24, 29-30. Certainly the one limitation is no more harmonious with the stated purposes of the statute than is the other. As said in Monroe v. Pape:
It is abundantly clear that one reason the legislation was passed was to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights, privileges, and immunities guaranteed by the Fourteenth Amendment might be denied by the state agencies. (Emphasis added.) 365 U.S. at 180, 81 S.Ct. at 480, 5 L.Ed.2d at 501.
The Supreme Court‘s use of the term “neglect” and the expansive phrase “or otherwise” appears to us directly contrary to the “improper motive” requirement. Such language suggests that a federal forum is no less desirable for the inadvertent than for the malicious violation of constitutionally protected rights.7 Cf. Huey v. Barloga, N.D.Ill.1967, 277 F.Supp. 864.
If giving effect to this Congressional intent will ‘open the flood gates,’ the remedy is not for this court to give § 1983 a narrower construction than Congress intended, but for Congress to decide whether it wishes to narrow the scope of the statute. 300 F.2d at 34.
II.
Having dealt with the improper motive requirement at some length, we now turn to appellant‘s contention that he was entitled as a matter of law to a directed verdict on the question of liability. Appellant‘s argument in brief is that neither the common law of false imprisonment nor the Civil Rights Act requires that a jailer have actual knowledge that his prisoner‘s incarceration is contrary to law. Whirl contends that negligence is not an element of false imprisonment or of liability under § 1983, and that the “good faith” of a jailer is neither a defense to nor a justification for an unlawful restraint.
In evaluating these contentions, we are beaconed by the nascent case of Monroe v. Pape with illumination from Pierson v. Ray. In Monroe Chicago police officers without a search or arrest warrant took Monroe to a police station for interrogation, and while he was there, searched his home. In holding that the complaint alleged an invasion of § 1983 rights, Justice Douglas observed:
In the Screws Case we dealt with a statute that imposed criminal penalties for acts ‘wilfully’ done. We construed that word in its setting to mean the doing of an act with ‘a specific intent to deprive a person of a federal right.’ [Screws v. United States, 325 U.S. 91, at 103, 65 S.Ct. 1031, 89 L.Ed. 1495]. We do not think that gloss should be placed on § 1979 which we have here. The word ‘wilfully’ does not appear in § 1979. Moreover, § 1979 provides a civil remedy, while in the Screws Case we dealt with a criminal law challenged on the ground of vagueness. Section 1979 should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions. 365 U.S. at 187, 81 S.Ct. at 484, 5 L.Ed.2d at 505.
. . . but this holding, which related to requirements of pleading, carried no implications as to which defenses would be available to the police officers. As we went on to say in the main paragraph, § 1983 ‘should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.’ 365 U.S., at 187, [81 S.Ct. at 484, 5 L.Ed.2d at 505.] Part of the background of tort liability, in the case of police officers making an arrest, is the defense of good faith and probable cause.
We hold that the defense of good faith and probable cause, which the Court of Appeals found available to the officers in the common-law action for false arrest and imprisonment, is also available to them in the action under § 1983. Pierson v. Ray, supra 386 U.S. at 556, 557, 87 S.Ct. at 1219, 18 L.Ed.2d at 296.
While the issue of Sheriff Kern‘s “good faith” in confining Whirl in prison was never in so many words presented to the jury, we do not involve ourselves in the semantics of whether or not a finding of non-negligence is tantamount to a finding of good faith. As we read Pierson v. Ray and Monroe v. Pape, neither good faith nor non-negligence can exculpate Kern from liability.
Pierson v. Ray and Monroe v. Pape were on their facts, false arrest cases and not false imprisonment cases. While it is certainly true that false arrest cases are often denominated actions for false imprisonment, i. e., Pierson and Monroe, false imprisonment deriving from an arrest and false imprisonment where no arrest has occurred are in substance quite different. Cf. Restatement of Torts, Second, §§ 35-45 and §§ 112-139. Admittedly, a person who is falsely arrested is at the same time falsely imprisoned, Fox v. McCurnin, 1928, 205 Iowa 752, 218 N.W. 499, yet “it is not necessary, to commit false imprisonment, either to intend to make an arrest or actually to make an arrest.” 32 Am.Jur. 2d, False Imprisonment, § 2 (1968); Titus v. Montgomery Ward & Co., 232 Mo.App. 987, 123 S.W.2d 574; McGlone v. Landreth, 1948, 200 Okl. 425, 195 P.2d 268. “False arrest is merely one means of committing a false imprisonment.” Harrer v. Montgomery Ward & Co., 1950, 124 Mont. 295, 221 P.2d 428, 433.
In ascertaining whether the Supreme Court intended the defense of “good faith” to apply to false imprisonment as well as to false arrest, we must not allow a superficial similarity between essentially different causes of action to dictate the purpose which the good faith defense is meant to serve in the context of the Civil Rights Act. There can be no quarrel with the fact that “good faith” in the circumstances of an arrest is a necessary and historically validated defense. As said by the Supreme Court in Pierson, “A policeman‘s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does.” 386 U.S. at 555, 87 S.Ct. at 1218, 18 L.Ed.2d at 295.
The reasons for this broad protection are clear. An arrest is often a stressful and unstable situation calling for discretion, speed, and on-the-spot evaluation. Quinnette v. Garland, C.D.Cal.1967, 277 F.Supp. 999, 1002. As a result, constab-
“The additional privilege is given because the peace officer has a duty to the public to prevent crime and arrest criminals; the performance of these duties would be seriously impaired unless peace officers were given considerable discretion in their performance and protected from liability for the consequences of honest and reasonable mistakes.” § 121, Comment (b) and (c) at 206.
Appellees urge that the above rule is their shield and protection. However, the breadth of a peace officer‘s privilege in an arrest situation is not necessarily the test of the breadth of a jailer‘s privilege in the context of a false imprisonment. There is no privilege in a jailer to keep a prisoner in jail beyond the period of his lawful sentence. Birdsall v. Lewis, 1936, 246 App.Div. 132, 285 N.Y.S. 146; Waterman v. State, 1957, 2 N.Y.2d 803, 159 N.Y.S.2d 702, 140 N.E.2d 551; Cohen v. State, 1965, 47 Misc.2d 470, 262 N.Y.S.2d 980, reversed on other grounds, 25 A.D.2d 339, 269 N.Y.S.2d 498; Weigel v. McCloskey, 1914, 113 Ark. 1, 166 S.W. 944, 46 A.L.R. 806. While a jailer cannot be held liable for errors in a warrant of commitment fair and valid on its face, Francis v. Lyman, 1 Cir. 1954, 216 F.2d 583; Peterson v. Lutz, 1942, 212 Minn. 307, 3 N.W.2d 489, it is also the law that where a prisoner is held in jail without a court order or written mittimus, the jailer is liable for false imprisonment. Garvin v. Muir, Ky.1957, 306 S.W.2d 256. The fact that the jailer is without personal knowledge that the prisoner is held unlawfully does not constitute a defense to an action for false imprisonment. Garvin v. Muir, supra; Ulvestad v. Dolphin, 1929, 152 Wash. 580, 278 P. 681; Great American Indemnity Co. v. Beverly, M.D.Ga.1956, 150 F.Supp. 134, 141. In fact, “An illegal imprisonment must be treated as a wrong from its very inception, and it matters not on what date knowledge of such illegality is acquired.” Emanuele v. State, 1964, 43 Misc.2d 135, 250 N.Y.S.2d 361, 366.
The case at bar is not, as appellees would have us view it, a case of justifiable reliance upon a warrant of commitment valid on its face. Cf. Francis v. Lyman, supra; Peterson v. Lutz, supra. The sheriff relied on nothing10 and his actions were not informed actions. Nor is this a situation where the dismissal of an indictment by a grand jury still leaves questions for judicial determination. Cf. Lowry v. Thompson, 1936, 53 Ga.App. 71, 184 S.E. 891. Proceedings against Whirl were terminated by the actions of a court of competent jurisdiction. While not easily characterized, the case at bar seems to us closest to the situation where the jailer keeps a prisoner beyond the lawful term of his sentence. In such circumstance, as in the one before us, ignorance of the law is no excuse.
We do not read Pierson v. Ray as mandating otherwise. The instruction that § 1983 is to be read against the background of tort liability does not seem to us a directive that “good faith” is a defense to all actions under the Civil Rights Act. Rather Pierson impressed the common law of torts into the service of the Civil Rights Act, and thereby made “good faith” a defense to a suit under § 1983 only where it is also a defense “under the prevailing view [of tort law] in this country.” 386 U.S. at 555, 87 S.Ct. at 1218, 18 L.Ed.2d at 295.
The central issue in this case is one of privilege, not of intent; one of law, not of fact. The tort of false imprisonment is an intentional tort.
The sheriff, of course, must have some protection too. His duty to his prisoner is not breached until the expiration of a reasonable time for the proper ascertainment of the authority upon which his prisoner is detained. We are not to be interpreted as holding that a sheriff commits an instant tort at the moment when his prisoner should have been released. However, in the present case what is or is not a reasonable time is not at issue. It may safely be said that Kern‘s ignorance for nine long months after the termination of all proceedings against Whirl was, as a matter of law, ignorance for an unreasonable time.
In the law of commercial transactions, it is common practice to hold that a person is on constructive notice of certain facts essential to the security of all who must deal with him. In such cases it is often said: “Where there is a duty of finding out and knowing, negligent ignorance has the same effect in law as actual knowledge.” Flack v. First National Bank of Dalhart, 1950, 148 Tex. 495, 226 S.W.2d 628, 632. Likewise in the law of property, notice of a deed in a chain of title actually unknown to a purchaser and found in a musty and dusty tome of records in some recorder‘s office is the daily grist of judicial decisions. Cf. Farmers Mutual Royalty Syndicate v. Isaacks, Tex.Civ.App.1940, 138 S.W.2d 228, 231 (no writ). If constructive notice can be thus pressed into the service of property, can it not also be urged in the service of human liberty? We think that it can, and that a sheriff must be held to be on constructive notice
We hold that it was error for the trial court to submit this case to the jury on the basis of negligence. We find on the record before us that Sheriff Kern was chargeable with constructive notice of the termination of all proceedings against Whirl, or alternatively, that absence of such notice was not a legal justification for Whirl‘s continued imprisonment. The district court should have granted plaintiff‘s motion for directed verdict as to liability, and left for the jury only the issue of damages.
III.
We direct our attention next to appellant‘s claim for false imprisonment under
In the case at bar there can be no doubt that Whirl‘s claims for false imprisonment and for violation of his civil rights arise out of “a common nucleus of operative fact.” The district court below has already exercised its discretion in considering Whirl‘s state as well as his federal cause of action. Under such circumstances, unless it can be said that the federal claim involved was frivolous or clearly foreclosed by prior Supreme Court decisions, Rumbaugh v. Winifrede Railroad Company, 4 Cir. 1964, 331 F.2d 530, cert. denied, 379 U.S. 929, 85 S.Ct. 322, 13 L.Ed.2d 341, “the strong and practical policies undergirding the pendent jurisdiction doctrine require that * * * [the state cause of action] * * * be determined by a federal forum.” Connecticut General Life, et al. v. Craton, et al., 5 Cir. 1968, 405 F.2d 41.
The Texas law of false imprisonment zealously safeguards the rights of citizens to be free of unlawful arrest and unlawful prison detention. Protection is provided by statute12 and by common law. Box v. Fluitt, Tex.Civ.App.1932, 47 S.W.2d 1107 (no writ). Persons found guilty of false imprisonment are subject to both criminal and civil penalties,13 while those wrongfully imprisoned are favored with a statutory grant of aid and compensation.14 Traditionally the Texas courts have also shown considerable solicitude for the
” . . . any arrest or imprisonment of any citizen of this state, no matter how poor or obscure, and no matter what may be his station in life, except as allowed or required by the laws of this state is a violation of the Constitution of this state, and the courts of this state, when appealed to, will redress such wrong if it can be done in a lawful manner.”
The McBeath case involved both a false arrest and an unlawful prison detention. The plaintiff, one P. M. McBeath, was arrested by a deputy sheriff of Wilbarger County, Texas, on suspicion of murder and was taken to the Wilbarger County jail. The plaintiff was then kept in jail from Sunday night to the following Wednesday without being taken before a magistrate. Upon his release, he sued the sheriff of Wilbarger County for false imprisonment. The sheriff defended on the grounds that he had not taken part in the false arrest and, in fact, had not even known that the plaintiff was being held in the county jail until the day before plaintiff‘s discharge. In an opinion approved by the Texas Supreme Court, the Commission of Appeals ruled that while the sheriff was not liable for the false arrest initiated by his deputy, he was liable in false imprisonment for failing to know the authority upon which his prisoner was held in the county jail:
“Certainly when the sheriff finds out that a prisoner is confined in his jail, which the law makes him the keeper of, and holds him responsible for, it is his duty to know by what authority he is confined therein, and he cannot close his eyes and fail to make investigation and excuse himself on the ground of lack of knowledge * * *” 12 S.W.2d at 123.
In the case at bar Sheriff Kern is charged with the same statutory duty “to make investigation” as was the defendant in McBeath. As indicated by
“Each sheriff is the keeper of the jail of his county. He shall safely keep therein all prisoners committed thereto by lawful authority, subject to the order of the proper court, and shall be responsible for the safe keeping of such prisoners. The sheriff may appoint a jailer to take charge of the jail, and supply the wants of those therein confined; but in all cases the sheriff shall exercise a supervision and control over the jail.”
The McBeath case demonstrates that the statutory obligations of a Texas sheriff are not amorphous ones. Conjoined with the statutory duty of a sheriff to protect his prisoners is the statutory duty to make investigation of the authority upon which they are held. Nothing is said in the statutes or in the Texas cases about a good faith defense or a defense of non-negligence to a suit for unlawful incarceration. Good faith may clear the conscience, but it does not redeem or purge the act. Kern reads
The evidence is undisputed that Kern could have known of the dismissal of charges against Whirl had he only made inquiry. But inquiry he did not make, and as a consequence Whirl, quasi-literate and one legged, languished in jail for nine months after he was entitled to be free of his fetters. Unfortunately, non-malicious restraint is no sweeter
As we understand the Texas law of false imprisonment, read in conjunction with the statutory duties of the sheriff as keeper of the county jail, non-negligence is no modifier of liability. Sheriff Kern had an unyielding duty to know his prisoner‘s sentence time, and this duty was not discharged.
Appellees’ other defenses to appellant‘s claim for false imprisonment are also without merit. Appellees contend that Sheriff Kern is not liable for Whirl‘s unauthorized detention because he had no personal knowledge that Whirl was being held in the county jail. Absent such knowledge, the detention is said to be the act of Kern‘s deputies. Under Texas law a sheriff is liable for the unauthorized acts of his deputies only if he has in some way ratified them. Workman v. Freeman, 1956, 155 Tex. 474, 289 S.W.2d 910. Since Kern did not even know that Whirl was in jail, appellees say he did not ratify the detention and cannot be held liable for it.
Accepting as we must Kern‘s uncontradicted statement that he was ignorant of Whirl‘s presence in the county jail, we are nonetheless of the opinion that the principle of law cited to us by appellees is not apposite to the case at bar. The cases to which we are referred deal with such matters as false arrests, illegal searches and seizures, and acts of brutality committed by deputy sheriffs without the knowledge or ratification of the sheriff himself. Workman v. Freeman, supra; Maddox v. Hudgeons, 1903, 31 Tex.Civ.App. 291, 72 S.W. 414 (writ ref‘d.); Sheppard v. Gill, Tex.Civ.App.1933, 58 S.W.2d 168, aff‘d. 126 Tex. 603, 90 S.W.2d 563; Taylor v. Stanford, Tex.Civ. App.1950, 229 S.W.2d 427 (no writ); Rhoden v. Booth, Tex.Civ.App. 1961, 344 S.W.2d 481 (writ ref‘d. n. r. e.). These cases turn upon the application of
“Sheriffs shall be responsible for the official acts of their deputies, and they shall have power to require from their deputies bond and security; and they shall have the same remedies against their deputies and sureties as any person can have against a sheriff and his sureties.”
The applicability of this statute to instances of unauthorized prison detention was considered and rejected in McBeath v. Campbell, supra. That case indicated that inasmuch as
The view which we take of Sheriff Kern‘s statutory responsibilities makes it necessary to hold that the Fidelity and Deposit Company of Maryland, surety on the Sheriff‘s bond, is also liable for the damages sustained by appellant Whirl. The general rule in Texas is:
“* * * in order to recover of the sureties upon the official bond of a sheriff or constable for a trespass committed by him, it must be shown that the act was done in the performance of a duty legally imposed upon him by virtue of his office.” Continental Casualty Company v. Miller, Tex.Civ.App.1940, 135 S.W.2d 501, 502 (no writ).
The Texas courts have held that a sheriff‘s failure to take a person under arrest before a magistrate as required by statute is such a dereliction of duty as to make the sheriff and his sureties liable for false imprisonment. King v. Roberts, Tex.Com.App.1935, 125 Tex. 623, 84 S.W.2d 718; Branch v. Guinn et al., Tex.Civ.App.1922, 242 S.W. 482 (no writ). Likewise we hold that Sheriff Kern‘s failure to investigate the authority upon which Whirl was confined as required by statute was such a breach of his official duty as keeper of the county jail,
IV.
We come finally to the question of damages. In this regard appellant assigns two fundamental errors in the trial court‘s instructions to the jury. Appellant first complains of the court‘s instruction that the jury disregard the removal of appellant‘s artificial leg in assessing the extent of his injuries. Evidence was introduced to show that the prolonged deprivation of appellant‘s artificial limb while he was in prison caused the tendons of his leg to contract and the tissues to swell. The court instructed the jury not to award damages on the basis of this evidence if the jury found that the leg had been removed in order to enforce reasonable rules of jail discipline.
The legal basis for the court‘s instruction is the general rule that it is not the proper function of courts to interfere in the internal management and discipline of prisons. United States ex rel. Knight v. Ragen, 7 Cir. 1964, 337 F.2d 425, cert. denied, 380 U.S. 985, 85 S.Ct. 1355, 14 L.Ed.2d 277; Rhodes v. Houston, D.Neb.1962, 202 F.Supp. 624, aff‘d., 8 Cir., 309 F.2d 959, cert. denied, 372 U.S. 909, 83 S.Ct. 724, 9 L.Ed.2d 719.
We see no reason why Whirl should not recover for the pain and suffering caused by the loss of his artificial leg. The recovery of damages in actions for false imprisonment includes recovery for physical and mental injury, Coffin v. Varila, 1894, 8 Tex. Civ. App. 417, 27 S.W. 956 (no writ), as well as for physical discomfort in jail. San Antonio & A. P. Ry. Co. v. Griffin, 20 Tex.Civ.App. 91, 48 S.W. 542 (writ ref‘d.). So long as a jury finds that the injury was the natural consequence of the false imprisonment and proximately related to it, Cf. Southwestern Portland Cement Co. v. Reitzer, Tex.Civ.App.1911, 135 S.W. 237 (no writ), no reason exists to treat the loss of Whirl‘s artificial limb any differently from his other jailhouse deprivations.17 We do not perceive how such a rule will interfere with sound jail discipline, for the sine qua non of any jail discipline is the lawful incarceration of the prisoner. So long as the prisoner is lawfully restrained, the jailer will be accorded reasonable discretion in the fulfillment of his legitimate duties.
Appellant‘s second grievance concerning the court‘s instructions on damages relates to the issue of contributory negligence. The trial court instructed the jury that if it found Whirl had been contributorily negligent in not exercising “ordinary care to request a hearing before the court, or to request the services of a court appointed attorney,” then the jury was to reduce the amount of damages awarded, if any, by the amount that Whirl‘s exercise of care might have mitigated his injury. The jury found in answer to special interrogatories that Whirl had not been contributorily negligent, and therefore he has not been prejudiced by the instruction. However, inasmuch as the issue of damages will have to be submitted to a new jury, we find it necessary to pass on the merits of the court‘s instruction.
We find that the instruction on contributory negligence was error. Under the circumstances of this case the duty to mitigate damages in the wake of Kern‘s wrongful act could only arise if Whirl knew during his confinement he was being injured and if he intentionally or heedlessly failed to protect his own interests. While the general rule is that “a person injured by the tort of another is not entitled to recover damages for such harm as he could have avoided by the use of due care after the commission of the tort,”
“A person is not prevented from recovering damages for a particular
harm resulting from a tort if the tortfeasor intended such harm or adverted to it and was recklessly disregardful of it, unless the injured person with knowledge of the danger of such harm intentionally or heedlessly failed to protect his own interests. (Emphasis added.)
Restatement of Torts, § 918 (2) (1939) .
It is argued by appellees that Whirl contributed to his own injury because he misled his jailers into believing that he was making efforts, through his family, to secure a lawyer, and as a consequence of these assurances, Sheriff Kern‘s deputies delayed setting his case for trial. Not until Whirl requested a court appointed attorney did the deputies check his file in the District Attorney‘s office and discover that all charges against him had been dismissed. Whirl‘s delay in procuring an attorney, and his assurances that he was going to get one, are the alleged underpinnings of his want of due care.
The difficulty with appellees’ position is that it assumes Whirl had the duty to mitigate the consequences of an injury of which he was not even aware. So far as Whirl knew he was being detained on lawful process. His prolonged efforts to secure an attorney of his own choosing, while perhaps dilatory, were predicated on the expectation that the attorney would be needed at trial and not before. Furthermore, Whirl was unfamiliar with the routine of the jail or of the District Attorney‘s office. He could not have known that according to procedures adopted by his jailers, his file would not be checked until his case was set for trial or until the services of a court appointed attorney were requested. But even had he known of such procedures, he had no reason and most important no duty to know whether charges against him had been dismissed. His jailer, on the other hand, had both the duty and the ability to verify the authority upon which his prisoner was held. The District Attorney‘s office was in the same building as the jail. A minute would have sufficed to verify the lawfulness of Whirl‘s detention.
The corollary of Kern‘s argument is that Whirl had a duty to ferret out his own release order and to free himself. Yet obviously Whirl, immobilized by incarceration, had no opportunity to scan documents and to determine the lawfulness of his detention. It was Kern who had the staff and the freedom of the courthouse to determine his detainees without let or hindrance. Between two so unevenly matched equities, we do not hesitate in declaring Whirl‘s right to receive full compensation for his injuries.
Viewed on one level, the facts of this case involve nothing more grandiloquent than paper pushing between officers in the Harris County Courthouse. Yet we must never forget that we are dealing with a man‘s liberty, and a game of who has the paper and who saw the paper is not constitutionally playable. This must be borne in mind in the assessment of damages. Traditionally the fact of an illegal restraint creates the right to recover at least nominal damages. Fouraker v. Kidd Springs Boating and Fishing Club, Tex.Civ.App.1933, 68 S.W.2d 796 (no writ). Perhaps in some circumstances that is all a man‘s freedom is worth, but though the price tag be a bargain, freedom is never valueless. A jury finding that a man‘s freedom is worthless is clearly erroneous. It is an impossible judgment to render against a sentient person, be he one legged, unschooled, friendless or without earning capacity.
There is the promise outstanding that the courts will redress the false imprisonment of any man, “no matter how poor or obscure, and no matter what may be his station in life.” McBeath v. Campbell, supra, 12 S.W.2d at 122. Let that promise be fulfilled.
Reversed and remanded.
On Petition for Rehearing and Rehearing En Banc
PER CURIAM:
The Petition for Rehearing is denied and the Court having been polled at the request of one of the members of the
COLEMAN and SIMPSON, Circuit Judges, dissent from the denial of rehearing en banc.
Notes
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:
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(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, or any right, privilege of immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States;
(4) To recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote.
Judicial immunity is likewise not a point of contention on this appeal. It is undisputed that Sheriff Kern did not act pursuant to any court order or certificate of commitment in restraining Whirl beyond the date when charges were dismissed. Cases which provide immunity to prison officials acting under court orders valid on their face are therefore inapplicable. Francis v. Lyman, 1 Cir. 1954, 216 F.2d 583; Dixon v. State of Maryland by Carter, D.Md.1966, 261 F.Supp. 746. Kern‘s failure to discover the dismissal of all charges against Whirl was the direct and sole cause of Whirl‘s unlawful detention. Discharge would have required no exercise of Kern‘s discretion or judgment. Under such circumstances, judicial immunity does not apply. Cf. Jobson v. Henne, 2 Cir. 1966, 355 F.2d 129, 133-134; Delatte v. Genovese, E.D. La., 1967, 273 F.Supp. 654, 658.
False imprisonment is the wilful detention of another against his consent and where it is not expressly authorized by law, whether such detention be effected by an assault, by actual violence to the person, by threats or by any other means which restrains the party so detained from removing from one place to another as he may see proper.
Any person guilty of false imprisonment shall be fined not exceeding five hundred dollars or be confined in jail not exceeding one year.
Legislative finding and statement of policy
Section 1. The Legislature finds that the people of Texas by adding to the Constitution of the State of Texas, Article III, Section 51-c, on November 6, 1956, have adopted the policy that persons who have served sentences in prison for crimes of which they are not guilty should not bear the loss occasioned by this error, but that the people of the State should provide such persons with compensation to reimburse and compensate them for their losses. It is the purpose of this Act to provide the means whereby such compensation may be obtained by persons so wronged.
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“By the terms of the charter the chief of police is made ‘the keeper of the city prison,’ and the question is whether the duty imposed upon him by the charter renders him liable for the conduct of the persons immediately in charge of the prison, notwithstanding he may not have participated in or known of such conduct. It is our opinion that it does. As keeper of the city prison, the chief of police is bound in law to know who is confined therein, and bound to know the purpose for which any person confined therein is so confined. He cannot escape his obligations in this respect by placing the prison in the keeping of others. If he does so, such others are his agents and he is responsible for their acts.”