Chumney v. Nixon

• Decision Date: 24 January 1980
• Docket Number: No. 77-1370,77-1370
• Citation: 615 F.2d 389
• Parties: Vern F. CHUMNEY and Marjorie Ann Chumney, Plaintiffs-Appellants, v. Roy C. NIXON, C. Harris Cole, Edward A. Rankin, Gene L. McDaniel, William R. Hicks, Murray E. Stern, Regency Travel, Inc., and Braniff International Airlines, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 389

615 F.2d 389

Vern F. CHUMNEY and Marjorie Ann Chumney, Plaintiffs-Appellants, v. Roy C. NIXON, C. Harris Cole, Edward A. Rankin, Gene L McDaniel, William R. Hicks, Murray E. Stern Regency Travel, Inc., and Braniff International Airlines, Inc. Defendants-Appellees.

No. 77-1370.

United States Court of Appeals Sixth Circuit.

Argued April 16, 1979.

Decided Jan. 24, 1980.

James F. Schaeffer, Schaeffer & McDougal, Memphis, Tenn., for plaintiffs-appellants.

W. Carlton Barnes, Hanover, Walsh, Barnes & Jalenak, Memphis, Tenn., for Nixon, Cole and Rankin.

Donald W. Schwendimann, James D. Causey, Memphis, Tenn., for McDaniel and Hicks.

J. Woodward Norvell, Nelson, Norvell, Wilson, McRae, Ivy & Sevier, Alan R. Strain, Memphis, Tenn., for Stern Regency Travel, Inc. and Braniff International Airlines, Inc.

Before EDWARDS, Chief Judge, KEITH, Circuit Judge, and PECK, Senior Circuit Judge.

EDWARDS, Chief Judge.

Plaintiffs-appellants Chumney, man and wife, appeal from dismissal of their complaint. The District Judge before whom this matter was argued, after considerable deliberation, granted defendants-appellees' motions to dismiss. He reached his final conclusion on motion to reconsider or rehear his dismissal, at which point he held that "the claims could not be said to arise under this criminal statute." The statute referred to, 18 U.S.C. § 113, is a criminal statute which provides penalties for personal assaults on any aircraft within the special aircraft jurisdiction of the United States.

This is a strange case on the alleged facts. It is also a difficult one as far as legal concepts are concerned.

THE ALLEGATIONS OF FACT

The facts alleged which may be digested from plaintiffs' complaint and amendments thereto, are as follows.

Chumney claims that, while he and his wife were returning from a Memphis, Tennessee, Shrine Temple charter flight to Rio de Janeiro, a physical assault on him by defendant Nixon, the mayor of Shelby County, Tennessee, and the other individual defendants, broke some of his teeth and resulted in other serious, possibly permanent injuries. At the time of the assault, the complaint alleges that the aircraft was approximately 21/2 hours out of Rio de Janeiro en route to Memphis, Tennessee. At oral argument, the parties appeared to agree that at the time concerned, the aircraft was at 29,000 feet over the Brazilian jungle. Judicial notice of a world map strongly suggests that plaintiffs' pleading should be so construed.

The motivation for this assault is alleged by Chumney to have originated in the fact that Nixon had once been sheriff of Shelby County and that Chumney, as a lawyer, had represented one of Nixon's deputies who had been fired by Nixon and had succeeded in getting him ordered replaced on the job.

There are sundry other interesting facts alleged in the background of this involved case, such as that Mr. and Mrs. Chumney were using this charter flight for their honeymoon following their recent marriage, that the Chumneys were seated next to an unnamed man (who did not participate in this assault) whose "body odor" was highly offensive to the Chumneys and they were much offended by having to continue to sit near him, which complaint they had made known to the individual defendants who were officers of the Shrine Temple and that, as alleged by the complaint, Braniff Airlines served quantities of liquor to everybody concerned, including both the plaintiffs and the individual defendants, and failed to prevent the assault.

THE LEGAL ISSUES

It is plaintiffs' contention that the individual defendants named as having participated in the assault clearly violated 18 U.S.C. § 113(d) and that their actions did damage which exceeded $10,000. They assert that their complaint arose under the laws of the United States as a civil action under 28 U.S.C. § 1331(a), the federal question jurisdictional statute. Plaintiffs' claims of causes of action against defendants Regency Travel, Inc. and Braniff Airlines are even harder to analyze and we shall deal with them last.

Plaintiffs in their tendered amended complaint assert that the United States District Court for the Western District of Tennessee, Western Division, has federal question jurisdiction under 28 U.S.C. § 1331 (1976) because defendants violated 18 U.S.C. § 113 (1976) which statute punishes assaults within the maritime and territorial jurisdiction of the United States. They claim the cited statute is made specifically applicable to the current fact problem by 49 U.S.C. § 1472(k)(1) (1976) pertaining to the special aircraft jurisdiction of the United States.

The federal question statute 28 U.S.C. § 1331(a) which plaintiffs rely upon reads:

(a) The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States.

18 U.S.C. § 113 reads:

Whoever, within the special maritime and territorial jurisdiction of the United States, is guilty of an assault shall be punished as follows:

(d) Assault by striking, beating, or wounding, by fine of not more than $500 or imprisonment for not more than six months, or both.

(e) Simple assault, by fine of not more than $300 or imprisonment for not more than three months, or both.

(f) Assault resulting in serious bodily injury, by fine of not more than $10,000 or imprisonment for not more than ten years, or both.

The applicability of 18 U.S.C. § 113 is established by the following statutory provisions:

18 U.S.C. § 7 reads:

The term "special maritime and territorial jurisdiction of the United States", as used in this title (18 U.S.C. § 1 et seq.) includes:

(5) Any aircraft belonging in whole or in part to the United States, or any citizen thereof, or to any corporation created by or under the laws of the United States, or any State, Territory, district, or possession thereof, while such aircraft is in flight over the high seas, or over any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State.

49 U.S.C. § 1472(k)(1) reads:

(k)(1) Whoever, while aboard an aircraft within the special aircraft jurisdiction of the United States, commits an act which, if committed within the special maritime and territorial jurisdiction of the United States, as defined in section 7 of Title 18, would be in violation of section 113, 114, 661, 662, 1111, 1112, 1113, 2031, 2032, or 2111 of such Title 18 shall be punished as provided therein.

Finally, 49 U.S.C. § 1301(34)(d)(i) reads:

(34) The term "special aircraft jurisdiction of the United States includes

(d) any other aircraft outside the United States

(i) that has its next scheduled destination or last point of departure in the United States, if that aircraft next actually lands in the United States;

We believe that these statutes clearly indicate that the Congress of the United States has undertaken to apply federal law to American (and other) aircraft while such aircraft are en route from an airport in the United States or are returning from a foreign country directly to an airport in the United States. The nature of 18 U.S.C. § 113 is that of a criminal statute designed to protect law abiding passengers on such an aircraft from either simple or felonious assault. The sanctions created by § 113 and made applicable to the subject circumstances by 49 U.S.C. §§ 1472(k)(1) and 1301(34)(d) are, however, purely criminal sanctions.

This leaves for our resolution the following question: Are plaintiffs entitled to a civil cause of action for damages against defendants which is derived from the federal criminal statutes described above and over which the federal courts would have jurisdiction under 28 U.S.C. § 1331(a)? The answer is anything but easy to come by. The District Judge accurately defined the question and answered it in the negative. Although it is certainly a close question, we disagree.

Civil actions derived from federal criminal statutes are not novel, albeit they are relatively rare. In the classic case, Reitmeister v. Reitmeister, 162 F.2d 691, 694 (2nd Cir.1947) Judge Learned Hand said as follows:

The first questions are whether the Communications Act of 1934, 47 U.S.C.A. § 151 et seq., imposes a civil, as well as a criminal, liability upon anyone who "publishes" a telephone message, and whether if so, the District Court had jurisdiction over the action. Although the Act does not expressly create any civil liability, we can see no reason why the situation is not within the doctrine which, in the absence of contrary implications, construes a criminal statute, enacted for the protection of a specified class, as creating a civil right in members of the class, although the only express sanctions are criminal.² In Newfield v. Ryan, ³ the Fifth Circuit has already implied as much as to § 605; and we too have so suggested ourselves in United States v. Goldstein.⁴ That the District Court had jurisdiction, if there was a civil right, is too plain for debate.⁵

2. Parker v. Barnard, 135 Mass. 116, 46 Am.Rep. 450; Amberg v. Kinley, 214 N.Y. 531, 108 N.E. 830, L.R.A. 1915E, 519; Couch v. Steel, 3 E. & B. 402. Restatement of Torts § 286.

3. 91 F.2d 700, 703.

4. (2 Cir.,) 120 F.2d 485, 490.

5. § 41(1), § 41(8), Title 28 U.S.C.A.

The principle of deriving a civil action from a criminal statute which does not in terms provide for anything other than criminal liability is familiar to the law of torts. See Restatement (Second) of Torts § 286 (1965). See also § 288. It has also frequently been the subject of consideration by the United States Supreme Court. See Wyandotte Transportation Co. v. United States, 389 U.S. 191, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967); J. I. Case Company v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964); Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S....