Czap v. Marshall

• Decision Date: 08 May 1963
• Docket Number: No. 13799.,13799.
• Citation: 315 F.2d 766
• Parties: John R. CZAP, Jr., Plaintiff-Appellant, v. James A. MARSHALL, William P. Schmitt, Harold Alfred Bastrup, Richard Roe and The Ohio Casualty Insurance Company, a corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

315 F.2d 766 (1963)

John R. CZAP, Jr., Plaintiff-Appellant, v. James A. MARSHALL, William P. Schmitt, Harold Alfred Bastrup, Richard Roe and The Ohio Casualty Insurance Company, a corporation, Defendants-Appellees.

No. 13799.

United States Court of Appeals Seventh Circuit.

February 21, 1963.

Rehearing Denied May 8, 1963.

Cleland P. Fisher, Janesville, Wis., for appellant.

Leo E. Vaudreuil, Vaudreuil & Vaudreuil, Kenosha, Wis., for appellees.

Before HASTINGS, Chief Judge, and CASTLE and MAJOR, Circuit Judges.

MAJOR, Circuit Judge.

This action was commenced March 11, 1957, by plaintiff, John Czap, Jr., to recover damages against defendants, James A. Marshall and William P. Schmitt. On January 24, 1961, an amended complaint was filed by which Harold Alfred Bastrup and The Ohio Casualty Insurance Company, a corporation, were added as defendants.

The action in the main is based upon the contention that plaintiff was falsely arrested, imprisoned and confined in jail for an unreasonable time without being taken before a magistrate, with the opportunity afforded to give bond. He also claims that his civil rights as guaranteed by the laws and Constitution of the United States were violated.

The occurrence and incidents giving rise to the action took place on Sunday, March 13, 1955, at a farm located in Kenosha County, Wisconsin, owned and operated by plaintiff's parents, Mr. and Mrs. John Czap, Sr. A public sale previously advertised was to take place on that day. Plaintiff drove from his home in Chicago and appeared at the Czap home shortly before the time fixed for commencement of the sale. At that time there were assembled several persons, including an auctioneer, plaintiff's parents, two sisters and perhaps other relatives. Sometime after noon Bastrup and Schreck, both deputy sheriffs, arrived in a squad car. They talked to numerous persons, including members of the Czap family. Subsequently, they arrested plaintiff and took him in a squad car to the Kenosha County jail, where he was committed and retained until his release the next morning by order of the district attorney. The officers had no warrant for plaintiff at the time of his arrest and none was subsequently issued.

At the conclusion of plaintiff's case, which was tried to a jury, the Court denied defendants' motion for a directed verdict. However, at the conclusion of the trial, the Court allowed a similar motion, directed a verdict for the defendants and entered judgment accordingly. From this judgment the appeal comes to this Court.

It is appropriate to note in the beginning that neither of the two arresting officers, Bastrup and Schreck, was a party to the action at the time of the trial. Bastrup long before he was named as a defendant had become a resident of the State of California. Following a pre-trial conference, the Court, on April 18, 1961, entered an order of dismissal as to him on the ground that the Court, for lack of service, was without jurisdiction. The order recites that the parties agreed to such dismissal. Schreck, the other arresting officer, was deceased and not named as a defendant.

Plaintiff's appeal from the judgment of dismissal as to Bastrup is clearly without merit. The trial Court had no jurisdiction as to him and neither does this Court.

Defendant Marshall at the time of the occurrence was county sheriff. It is contended that he was liable and responsible for the acts of the arresting officers and that he was derelict in his duties as sheriff in failing to have plaintiff taken before a magistrate within a reasonable time. As to defendant Schmitt, a deputy sheriff, it is contended that he was liable because of certain activities in connection with plaintiff's commitment. As to defendant The Ohio Casualty Insurance Company, it is contended that it as the surety on the bond of Schmitt and Bastrup was liable for their alleged unlawful activities.

We have read the entire record, including the exhibits and the testimony heard at the trial, and are convinced that the correct result was reached by the District Court. The only question of any consequence is whether that result should have been reached in the form of a directed verdict. In considering this issue, we must keep in mind, of course, the rule that a question for the jury is presented if there is substantial evidence supporting plaintiff's claim when viewed in the light most favorable to him.

Turning first to the circumstances in connection with plaintiff's arrest, the record presents a rather unusual situation. Plaintiff testified in support of his case, and his testimony standing alone, if believed, would have presented a submissible issue. However, plaintiff had taken the deposition of Bastrup in California (not as an adverse party), and introduced such portions of the deposition as were thought favorable to him. Thereupon, defendant offered and the Court admitted, over the objection of plaintiff, the remainder of the deposition. No question is raised here as to the propriety of the Court's ruling in this respect.

We shall attempt to summarize in brief form the testimony of plaintiff and Bastrup as to the circumstances connected with plaintiff's arrest. In connection with plaintiff's version, it is relevant to note some background. Previous to his arrest, plaintiff had been engaged in a controversy with his family regarding his claim to certain property in possession and control of his parents. In fact, a case relative thereto was pending in a State Court. At one hearing in connection therewith, plaintiff in the presence of the Court had threatened to kill his mother. Plaintiff learned of the auction sale, advertised by his parents to be held March 13, 1955. On the previous day, he procured from a State Court Judge an order directed at his parents to show cause why they should not be enjoined from selling, transferring or otherwise disposing of their property, except the order permitted the conduct of the sale as advertised but restrained the parents from disposing of the proceeds until further order of the Court. It appears that a copy of this order was served on his parents the day prior to the sale. (As far as the record discloses, the arresting officers previous to the day in question had no knowledge of this family controversy.)

As noted, plaintiff arrived at the farm shortly before the time the sale was to commence. Later, the arresting officers while cruising near the Czap farm received from the sheriff's office a radio report, "We are having trouble with Mr. Czap's son, would like to have squad car stop at the place." This was a telephone request made by the auctioneer at the Czap farm. In response thereto, the officers arrived at the farm sometime shortly after noon.

Plaintiff testified that he was in the yard when the officers arrived, and that immediately after learning his identity they took him in custody and forced him into the squad car. He emphatically denied that he had committed any offense, done any harm, threatened any person, or used any vulgar or profane language. In short, according to his testimony, he was as innocent and docile as any person could be.

Officer Bastrup testified that upon their arrival at the farm there was a large crowd of men, women and children in the yard and that he went into the house where plaintiff, his mother and sisters were engaged in an argument. He was told that plaintiff had come to the farm for the purpose of stopping the auction, that he had beat his sister and that she wished to file a complaint against him. This statement was corroborated by the auctioneer. At that time Bastrup observed that the sister had bruises on her face and blood flowing from visible marks. Plaintiff left the house, and so did Bastrup.

The two officers talked to plaintiff in the yard concerning the family controversy, asked him not to create any further disturbance and to leave the property, as requested by his mother and sister. This he refused to do. Plaintiff produced certain identification cards and advised the officers that they did not know what they were doing. Plaintiff used much profanity and vulgar language in the presence of the crowd in the yard. His sister again told the officers that she wanted to sign a complaint and charge plaintiff with assault and battery. They told her that in order to do so she would have to go to the district attorney's office the following day.

Thereupon, the officers took plaintiff to the Kenosha County jail. Bastrup made out what is called an arrest sheet which, among other things, stated that plaintiff entered his mother's home and assaulted her and his sister, and "Arrested on complaint of mother and sisters who will come into the DA office and sign complaint. Relatives claim they are afraid of this man and he frequently carries a gun." The arresting officers had no further connection with the matter. Plaintiff was turned over to other officers and, after the performance of certain routine matters including the taking of his fingerprints and taking from his person certain so-called identification cards, he was committed to jail.

The District Judge, in connection with the dismissal of plaintiff's action,...