Fleming v. McEnany

• Decision Date: 08 January 1974
• Docket Number: No. 38,Docket 72-2350.,38
• Citation: 491 F.2d 1353
• Parties: Dorothy A. FLEMING, Plaintiff-Appellant, v. Evelyn McENANY et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

491 F.2d 1353 (1974)

Dorothy A. FLEMING, Plaintiff-Appellant, v. Evelyn McENANY et al., Defendants-Appellees.

No. 38, Docket 72-2350.

United States Court of Appeals, Second Circuit.

Argued October 18, 1973.

Decided January 8, 1974.

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William M. McCarty, Jr., Brattleboro, Vt. (J. Morris Clark, Burlington, Vt., on the brief), for plaintiff-appellant.

Robinson E. Keyes, Rutland, Vt. (James T. Haugh and Ryan, Smith & Carbine, Rutland, Vt., on the brief), for defendant-appellee John G. Kissane.

John P. Maley, Burlington, Vt. (James M. Farrell and McNamara, Fitzpatrick, Sylvester, Farrell & Maley, Burlington, Vt., on the brief), for defendants-appellees Wesley Lagrow and Roland Keenan.

Before KAUFMAN, Chief Judge, LUMBARD and TIMBERS, Circuit Judges.

TIMBERS, Circuit Judge:

This appeal arises from another Vermont saga: a woman, in need of help to repair a flat tire, obtained such help from two male acquaintances whom she met in a bar; they in turn accompanied her on a full day of drinking at various bars; and toward evening, many miles from where they started, she drove her car through a store front. Following her arrest and eventual release on a state criminal charge and later on a state civil body attachment, she brought a diversity action in the federal district court seeking damages for false imprisonment from those who caused her civil arrest and confinement.

The issue before us is the propriety of the district court's granting defendants' motions for directed verdicts at the close of plaintiff's case. At the outset, we emphasize that this is not an action to recover damages for alleged violation of plaintiff's civil rights under 42 U.S.C. § 1983 (1970). It is a diversity action for false imprisonment in which we are required to apply, as did the district court below, the law of Vermont which has been well settled for more than a century. We affirm.

I.

The facts are simple, straightforward — and sad.

Plaintiff Dorothy A. Fleming, a 51 year old woman who was a resident and citizen of Massachusetts, was visiting her mother in Jericho, Vermont, in July 1969. Early in the morning of July 10, she had a car with a flat tire in Essex Junction. She went to a bar where, about 9 A.M., she met two male acquaintances who changed her tire. At their request, she drove them to Burlington where they visited various taverns. Later that day, she and her two acquaintances drove to St. Albans, stopping "every little while on the turnpike" for another drink. Upon arriving in St. Albans at about 6 P.M., plaintiff was "rip-roaring drunk". In attempting to park her car, she knocked down a parking meter, hit a couple of other cars and ran her car into a store front owned by defendant Evelyn McEnany. She was arrested and confined in jail on a criminal charge arising from the accident.

On the following day, July 11, she pled guilty to the criminal charge and was fined $105 or, in the alternative, sentenced to 105 days in jail. Unable at first to pay the fine, she remained in jail pursuant to the criminal sentence for approximately one week, at the end of which she paid the criminal fine.

In the meanwhile, on July 11, she was served with a civil capias writ¹ and a complaint seeking $2,000 for damage to the store front. Unable to post sufficient property to satisfy the $2,000 bail fixed by a magistrate pursuant to the capias, she was committed to the Franklin County Jail where she remained for a period of 20 days until her insurance company entered an appearance on her behalf on July 31 and arranged for her release.²

Based on this sequence of events, plaintiff commenced a diversity action in the District Court for the District of Vermont on March 4, 1970 to recover $50,000 for false imprisonment. Her false imprisonment complaint named as defendants Evelyn McEnany, the owner of the store front who previously had sued her for damages in a Vermont state district court;³ John G. Kissane, Esq., the attorney for Miss McEnany who had instituted the state court action against plaintiff; Wesley Lagrow, the deputy sheriff who arrested plaintiff pursuant to the capias; and Roland Keenan, the sheriff and jail keeper in whose custody plaintiff remained while confined. All defendants are citizens of Vermont.

At the close of plaintiff's case, Chief Judge Holden on October 16, 1972 denied her motion for a directed verdict and granted the motions for directed verdicts by each of the four defendants. This appeal is from the judgment entered upon the directed verdicts in favor of defendants.

On appeal plaintiff asserts alternative theories of liability on the part of defendants. She contends first that defendants are liable to her for damages under the Vermont law of false imprisonment because the Vermont procedure, which authorized issuance of the capias pursuant to which she was arrested and confined, violated the due process clause of the Fourteenth Amendment, as that clause has been interpreted in Sniadach v. Family Finance Corp., 395 U.S. 337 (1969), since the Vermont procedure did not provide for a judicial hearing prior to arrest. Alternatively, plaintiff contends that defendants are liable to her in tort because Sniadach, which held summary garnishment of wages to be unconstitutional, was decided by the Supreme Court one month before the issuance of the capias pursuant to which she was arrested and confined, and therefore defendants should have known that the capias they issued and executed was unconstitutional.

For the reasons below, we hold plaintiff's contentions to be without merit.

II.

Our function in reviewing the propriety of the directed verdicts below is to determine whether there were any facts, or facts from which inferences might be drawn, which should have been sent to the jury for its determination as to whether defendants were liable to plaintiff for false imprisonment under Vermont law. Stief v. Sexauer Manufacturing Co., 380 F.2d 453, 455 (2 Cir.), cert. denied, 389 U.S. 897 (1967). If the evidence was such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there could be but one conclusion as to the verdict that reasonable men could have reached, then direction of the verdicts was proper. See Simblest v. Maynard, 427 F.2d 1 (2 Cir. 1970).

With respect to defendant Lagrow (the deputy sheriff who arrested plaintiff) and defendant Keenan (the sheriff and jail keeper who had custody of her), there can be no doubt that verdicts were properly directed in their favor.

Under Vermont law, sheriffs and their deputies are required to receive and execute all writs delivered to them, under penalty of fine, costs and damages, unless a writ is absolutely void on its face. 12 V.S.A. §§ 696, 697 (1973); Gross v. Gates, 109 Vt. 156, 194 A. 465 (1937); Goodell v. Tower, 77 Vt. 61, 58 A. 790 (1904); Stoddard v. Tarbell, 20 Vt. 321 (1848). An officer's inquiry as to the validity of the process to be served is limited to an examination of the instrument itself to determine that it is properly signed, properly directed and properly returnable. Stoddard v. Tarbell, supra; Churchill v. Churchill, 12 Vt. 661 (1839). In short, process which is not void on its face provides sufficient justification for the officer who serves or otherwise executes it.

In Williams v. Franzoni, 217 F.2d 533 (2 Cir. 1954), aff'g 120 F.Supp. 444 (D.Vt.1954), we affirmed an order dismissing before trial a complaint which sought to recover damages from a sheriff whose deputies had served an allegedly invalid capias. Appellant there was serving in the United States Armed Forces. He was arrested pursuant to a Vermont state court capias contrary to a federal statute which exempted servicemen from such process. He sued in the federal court, claiming that he was entitled to recover damages from the sheriff for false arrest and imprisonment. In affirming the district court's dismissal of the complaint, Judge Chase, writing for our Court, held:

"The Vermont law applicable to the situation here presented, as shown by the decision of its highest court, makes the liability of an officer serving mesne process by an arrest pursuant to the command of the precept when, as here, the process conforms in kind to that which the court has jurisdiction to issue depend on whether there is a defect discoverable by an examination of the process itself which makes it void." 217 F.2d at 534.

In the instant case, as in Williams, since the capias served on plaintiff constituted process which the state court had jurisdiction to issue and was valid on its face, her arrest and confinement pursuant to the writ's command provides no basis for imposition of liability on Lagrow and Keenan for false imprisonment. See Gage v. Barnes, 11 Vt. 195 (1839); Pierson v. Gale, 8 Vt. 509 (1836).

Plaintiff argues, however, that, even though the capias pursuant to which she was arrested and confined was legal in its formal details, there existed on its face something "which would fairly warn the server that it is defective". Williams v. Franzoni, supra, 120 F.Supp. at 445. Plaintiff contends that, if her arrest on mesne process was unconstitutional, then the capias served on her must be deemed under Vermont law to have been void on its face. Alternatively, she contends that Lagrow and Keenan had reason to know that the capias was void on its face because of the decision in Sniadach v. Family Finance Corp., supra. We find no merit in these contentions of plaintiff.

Since the Vermont state court whose process was issued had subject matter jurisdiction and jurisdiction over the parties and the capias was not defective in its formal requisites, the process cannot fairly be said to have been void on its face by reason of an allegedly unconstitutional underlying procedure which, at the time of service, had not been decided. In fact, on December 3, 1968, only seven months before plaintiff was arrested, the Vermont Supreme...