Grooms v. Fervida, PS

• Decision Date: 05 November 1979
• Docket Number: No. PS,PS
• Citation: 182 Ind.App. 664,396 N.E.2d 405
• Parties: Robert M. GROOMS, Appellant (Plaintiff Below), v. Steve FERVIDA, Frederick Call, Sidney Fish, and Dick Bowman, Appellees(Defendants Below). 420.
• Court: Indiana Appellate Court

Page 405

396 N.E.2d 405

182 Ind.App. 664

Robert M. GROOMS, Appellant (Plaintiff Below), v. Steve FERVIDA, Frederick Call, Sidney Fish, and Dick Bowman,

Appellees(Defendants Below).

No. PS 420.

Court of Appeals of Indiana, Third District.

Nov. 5, 1979.

Robert M. Grooms, pro se.

John D. Ulmer, Yoder, Ainlay, Ulmer & Buckingham, Goshen, for appellees Steve Fervida, Frederick Call and Dick Bowman.

Theodore L. Sendak, Atty. Gen., Terry G. Duga, Deputy Atty. Gen., Indianapolis, for appellee Sidney Fish.

HOFFMAN, Judge.

Plaintiff-appellant Robert Grooms brought an action for false imprisonment against defendants-appellees Steve Fervida, Frederick Call, Sidney Fish and Dick Bowman. The jury returned a verdict adverse to Grooms and he appeals.

Viewing the evidence in a light most favorable to the appellees, it appears that on Monday, December 2, 1974, Grooms was placed under a warrantless arrest by two police officers not parties to this action. At approximately 5:30 P.M. that day, Detectives Fervida and Fish took custody of Grooms and escorted him from the Elkhart County Police Department substation to the Elkhart County jail. There, Call was instructed by Fervida to book Grooms for preliminary investigation of armed robbery. From December 2nd through December 11th, Grooms was confined in the county jail without any criminal charges filed against him or a warrant issued for his arrest. During this period, there were two superior court judges, a circuit court judge, three city court judges and several justices of the peace available in Elkhart County. The record indicates that the normal practice in the county was to take all persons arrested for felonies to the superior courts on Thursday or to the circuit court on Friday.

Around 6:00 P.M. on December 4th, attorney Jerry Virgil discussed his representation of Grooms with the county prosecutor and they agreed to the following arrangement: Grooms would give written statements regarding an armed robbery and unrelated homicide then being investigated. A polygraph test would be administered to Grooms about the homicide statement. If the test results absolved Grooms of the homicide, he would be released from custody and no criminal charges would be filed against him. After consulting with Virgil on December 5th, Grooms assented to the arrangement. The results of the test were received on December 10th and revealed that Grooms had failed the polygraph. On December 11th, Grooms was indicted for first-degree murder and a warrant was issued for his arrest. He was found guilty of first-degree murder on November 7, 1975, and his conviction was affirmed by the Indiana Supreme Court in Grooms v. State (1978), Ind., 379 N.E.2d 458.

Grooms assigns as error the following issues:

(1) whether the trial court erred in dismissing Bowman as a defendant in the action;

(2) whether the trial court erred in denying Grooms' motion for partial summary judgment;

(3) whether the trial court erred in allowing defendants to impeach their own witness under Ind.Rules of Procedure, Trial Rule 43(B):

(4) whether the trial court erred in refusing to give Grooms' tendered Final Instruction No. 2; and

(5) whether the verdict of the jury is contrary to law.

Grooms maintains the trial court erred in dismissing this action against Bowman who was a major in the Elkhart County Police Department and the superior of defendants Fervida and Call. The original complaint did not name Bowman as a defendant. However, his amended complaint filed on January 21, 1977 alleged that Bowman was liable for the acts of false imprisonment which occurred between December 2 and December 11, 1974. The trial court dismissed the amended complaint against Bowman for failure to institute the action within the two-year statute of limitations provided for in IC 1971, 34-1-2-2 (Burns Code Ed.). That statute states in part:

"The following actions shall be commenced within the periods herein prescribed after the cause of action has accrued, and not afterwards.

"First. For injuries to person or character, for injuries to personal property, and for a forfeiture of penalty given by statute, within two (2) years: . . .

"Second. All actions against a sheriff, or other public officer, or against such officer and his sureties on a public bond, growing out of a liability incurred by doing an act in an official capacity, or by the omission of an official duty, within five (5) years; but an action may be brought against the officer or his legal representatives, for money collected in an official capacity, and not paid over, at any time within six (6) years."

Grooms asserts that since the amended complaint specified that Bowman was being sued as a public officer and for acts growing out of his official capacity as a deputy sheriff, his cause of action ought to be governed by the second provision in IC 1971, 34-1-2-2 prescribing a five-year statute of limitations. He reasons that since the complained of acts and omissions occurred in December 1974, the statute of limitations would not expire until December 1979.

The solution to this problem can be found by looking to the basic nature of the alleged violation of Grooms' right. So viewed it is evident that the gravamen of the amended complaint is a claim of wrongful imposition of control over Grooms' freedom of movement and therefore comes within the framework of the fundamental tort of false imprisonment. Clearly the essential nature of the wrong of false imprisonment is an injury to the person. For this reason, the trial court was correct in its analysis that the two-year statute of limitations applied.

In response to the argument that the five-year statute of limitations was applicable, the only facts alleged in the amended complaint to connect Bowman with the imprisonment were his capacity as supervising officer of defendants Fervida and Call and his responsibility for the daily operation of the county jail. No statute has been cited nor have any been found which would impose an official duty upon Bowman to inquire into the legality of the detention of every person incarcerated there.

In an effort to obviate the conclusion that the statute of limitations had expired against Bowman, Grooms advances the argument that the statute was tolled because he was under a legal disability when his cause of action accrued insofar as he was detained in the county jail when the false imprisonment terminated. Indiana law provides for a personal disability making imprisonment of a person In the state's prison a ground for suspending a statute of limitations that would otherwise bar a cause of action in his favor. IC 1971, 34-1-2-5 (Burns Code Ed.); IC 1971, 34-1-67-1 (Burns Code Ed.). Nevertheless, it is generally held that exceptions to statutes of limitations are to be strictly construed. 77 A.L.R.3d 735 (1977).

Grooms' proposition that he was under a legal disability presupposes that "county jail" and "state prison" are synonymous expressions. This assumption, however, is ill-founded. While the generic nature of the word "prison" and its allied terms may have led certain writers to use it interchangeably with the word "jail", see Hall v. State (1928), 199 Ind. 592, 159 N.E. 420; Jones v. State (1978), Ind., 377 N.E.2d 1349, there is a clear distinction between the state prison and a county jail.

The term "state prison" has generally signified the penitentiary maintained by the state for the confinement of prisoners convicted of crimes of a certain degree and of a higher legal character than those for which a person is incarcerated in the county jail. Martin v. Martin (1866), 47 N.H. 52; State v. Johnson (1949), 96 N.H. 4, 69 A.2d 515; Denham v. Commonwealth (1905), 119 Ky. 508, 84 S.W. 538. Until the Legislature abolished the distinctions for sentencing purposes among the Indiana State Prison, the Indiana Reformatory, the Indiana State Farm and the Indiana Boys' School in 1978, the facility known as the Indiana State Prison was used exclusively "for the incarceration of male persons convicted by any of the courts of this state of treason or murder in the first or second degree, of those persons now confined therein, except as hereinafter provided and of all persons convicted by any of the courts of this state of any felony who at the time of such conviction may be thirty (30) years of age or over and of all persons who may be transferred thereto under the provisions of this act." IC 1971, 11-2-3-2 (Burns Code Ed.). ¹

The logic of a tolling provision for those persons incarcerated in the Indiana State Prison or another maximum security facility for criminals becomes apparent considering that the restraints imposed on one sentenced to the Indiana State Prison are substantially greater than they are for one incarcerated in a county jail. The trial court was correct in concluding that the terms "state prison" and "county jail" are not synonymous expressions. Consistent with what has been stated herein, the trial court properly granted Bowman's motion to dismiss.

Grooms also claims the trial court erred in denying his motion for partial summary judgment. Since it was uncontroverted that he was placed under a warrantless arrest and held in excess of 48 hours without the benefit of a judicial hearing on the legality of his restraint, Grooms submits summary judgment should have been rendered on the issue of his false imprisonment.

A motion for summary judgment may be sustained if the pleadings and other matters filed with the court disclose there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Ind.Rules of Procedure, Trial Rule 56(C). In determining whether a genuine issue of material fact exists, the facts established by the opponent must be accepted as true and all doubts must be resolved against the proponent of the motion. Crase v. Highland Village Value Plus Pharmacy (1978), Ind.App., 374 N.E.2d 58.

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