407 F.2d 781 (5th Cir. 1968), 24897, Whirl v. Kern

Docket Nº:24897.
Citation:407 F.2d 781
Party Name:William WHIRL, Appellant, v. C. V. (Buster) KERN and Fidelity and Deposit Company of Maryland, Appellees.
Case Date:December 30, 1968
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 781

407 F.2d 781 (5th Cir. 1968)

William WHIRL, Appellant,


C. V. (Buster) KERN and Fidelity and Deposit Company of Maryland, Appellees.

No. 24897.

United States Court of Appeals, Fifth Circuit.

December 30, 1968

Page 782

[Copyrighted Material Omitted]

Page 783

[Copyrighted Material Omitted]

Page 784

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.

Page 785

Russell Talbott, Houston, Tex., for appellee Fidelity & Deposit Co. of Maryland, Fulbright, Crooker, Freeman, Bates & Jaworski, 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 Texas law 1 and for the deprivation of civil rights under 42 U.S.C.A. § 1983, 2 the custodial derelictions of a Texas sheriff. 3 The sheriff is accused of wrongfully overextending to an inmate of his jail the hospitality of his hostelry and the pleasure of his cuisine. The jury in the court below found for the sheriff. We reverse.

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 necessarily

Page 786

vague. Nevertheless, it is clear that the communication failure in Whirl's case occurred primarily between the District Clerk's office and the Sheriff's office.

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

Page 787


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 42 U.S.C.A. § 1983. Cf. Nesmith v. Alford, 5 Cir. 1963, 318 F.2d 110; Pierson v. Ray, 5 Cir. 1965, 352 F.2d 213, reversed on other grounds, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288. Of course, when an essential element of the wrong itself

Page 788

under well established principles of tort law includes the demonstration of an improper motive as in malicious prosecution, Nesmith v. Alford, supra, 318 F.2d at 110, 121, 128 n. 34, then such principle becomes a part of sec. 1983. But the origin of such a requirement is in the common law of torts, not in the Civil Rights Act. In cases where tort law imposes no such burden upon the plaintiff, we are not persuaded that the burden should be judicially imposed under sec. 1983. We think it inconsistent to say in one and the same breath that a man is 'responsible for the natural consequences of his actions,' Monroe v. Pape, supra, 365...

To continue reading