Kapson v. Kubath

• Decision Date: 27 August 1958
• Docket Number: Civ. A. No. 2289.
• Citation: 165 F. Supp. 542
• Parties: Samuel KAPSON, Plaintiff, v. Erwin H. KUBATH, Defendant.
• Court: U.S. District Court — Western District of Michigan

165 F. Supp. 542

Samuel KAPSON, Plaintiff, v. Erwin H. KUBATH, Defendant.

Civ. A. No. 2289.

United States District Court W. D. Michigan, S. D.

August 27, 1958.

COPYRIGHT MATERIAL OMITTED

Robert H. Moore, Gary, Ind., and Charles W. Gore, Benton Harbor, Mich., for plaintiff.

Alexander, Cholette, Buchanan, Perkins & Conklin, and Paul E. Cholette, Grand Rapids, Mich., for defendant.

STARR, Chief Judge.

Plaintiff Kapson, a citizen of Indiana, brought this action against defendant Kubath, sheriff of Berrien county, Michigan, and his surety, the Hartford Accident and Indemnity Company, claiming damages for the alleged unlawful confiscation, destruction, and damaging of certain real and personal property owned by the plaintiff and located in LaPorte county, Indiana. To consider and determine the issues presented, it is necessary to set forth the factual situation out of which the litigation arose.

The plaintiff was the owner of certain land intersected by the boundary line between the States of Indiana and Michigan, a portion of said land being located in Indiana and a portion in Michigan. The plaintiff owned four buildings located on this land, which were designated and referred to in the trial of this action as buildings A, B, C, and D. Building A was located in Michigan except for a small triangular portion thereof, which was in Indiana; about two thirds of building B was located in Indiana and about one third in Michigan; buildings C and D were located entirely in Indiana. Building C, which is the only building involved in this action, was a two-story building generally referred to as the Sportmans Club or the State-Line bookie. Gambling operations, including horse-race betting, were conducted in this building during the summer months. The plaintiff owned the furnishings and equipment in building C and received one third of the profits from the gambling operations as rental for the building and the furnishings and equipment located therein. In August, 1951, the plaintiff went on a visit to his native land of Greece and did not return to Indiana until November 9th or 10th of that year. While he was absent from the country, his brother and two other men were left in charge of the building and the gambling operations and other activities.

On Labor Day, September 3, 1951, the defendant as sheriff of Berrien county, Michigan, and eight of his deputies, accompanied by officers of the Michigan State police, officers of the sheriff's department of LaPorte county, Indiana, and Indiana State police, conducted a raid upon the Sportsmans Club in building C, which was located entirely in Indiana. The raid was conducted without warrants for arrest or search. The evidence clearly establishes that defendant Kubath as sheriff of Berrien county actively participated in the raid and, acting alone or in cooperation with the prosecuting attorney of Berrien county, actively directed or acquiesced in the confiscation of certain moneys found in building C and the damaging of the building and the destruction or damaging of certain property located therein. It appears that the air-conditioning system and certain of the electrical wiring and lighting fixtures in building C were torn out and at the direction of the defendant were removed to Berrien county, Michigan. The ceilings, walls, and other parts of the building were damaged, two mahogany bars and a built-in desk or counter were destroyed, and other personal property in the building was destroyed or damaged. The defendant arrested, or caused to be arrested, six operators of the gambling establishment and caused them to be removed to the Berrien county jail. The defendant arrested, or caused to be arrested, some 50 or more patrons of the gambling operations in building C, and these patrons were also removed to the Berrien county jail. The defendant took possession of and removed about $460 which was found in the gambling establishment in building C and also took possession of and removed a cash box found in that building containing, according to his testimony, $8,000 in money.

At this point it should be noted that upon a hearing in the circuit court of Berrien county the six operators of the gambling establishment, who had been arrested in Indiana and removed to Michigan, were discharged, when the evidence established that building C was located entirely in Indiana and there was no proof that the operators had committed any offense in Michigan. It should also be noted that upon stipulation of all counsel the action was dismissed as to defendant's surety, the Hartford Accident and Indemnity Company, on the ground that it was surety for defendant in his capacity as sheriff of Berrien county, Michigan, and that he was not acting in that capacity in conducting the raid in Indiana.

The plaintiff began the present action to recover for the damages to building C and for the destruction and damaging of certain property located in that building, and for the sum of $2,000 of money which he claims was in the confiscated cash box, over and above the sum of $8,000 which the defendant admits was in the box when it was removed from building C. It should be kept in mind that, as stated on the record by counsel, the plaintiff makes no claim in this action for said sum of $8,000 or for the value of gambling equipment and furniture and furnishings removed from building C and transported by the defendant or under his direction to Berrien county.

In his complaint plaintiff alleges that defendant Kubath as sheriff of Berrien county, Michigan, acting wholly without jurisdiction or authority in the State of Indiana, wilfully and maliciously damaged the plaintiff's buildings, destroyed or damaged property located in the buildings, and confiscated certain moneys belonging to him. Defendant filed answer alleging that the plaintiff's property was situated partially in Indiana and partially in Michigan, and that gambling operations were illegally conducted and intoxicating liquors were illegally sold on the premises; that defendant and his deputies and the Michigan State Police and the sheriff of LaPorte county, Indiana, and his deputies and the Indiana State police all participated in the raid upon the premises; that the defendant and his deputies and the Michigan police officers had charge of the raid operations in Michigan and that the sheriff of LaPorte county, Indiana, and his deputies and the Indiana State police had charge of the raid operations in Indiana. The defendant further alleged that his acts and doings were under the direction, order, and authority of the sheriff of LaPorte county, Indiana; that it was his legal duty to assist the Indiana officers in that county; and that certain personal property found upon the premises in Indiana was seized and was removed to Berrien county, Michigan, under the direction and order of the sheriff of LaPorte county. The defendant further alleged that in the conduct of the raid he seized money in the total amount of $8,460 and that this seizure was made under the authority of the sheriff of LaPorte county. The defendant expressly denies that any sum in excess of $8,460 was seized and removed, and denies that plaintiff is entitled to the relief sought.

The action was tried to the court without a jury. It is significant that the defendant admitted that prior to the raid he did not know whether building C, in which the Sportsmans Club was operated, was located in Michigan or in Indiana. The prosecuting attorney of Berrien county, who conferred with the defendant and advised him prior to the raid, testified that a survey would have determined the location of building C but that a survey was not made because that would have disclosed the fact that a raid was planned. There is no showing that any proper effort was made prior to the raid to determine the exact location of building C and whether it was located in Michigan or Indiana. The defendant admitted that he took part in the planning and conducting of the raid and that he directed the activities of his deputies. The testimony indicates that the prosecuting attorney of Berrien county was present during a part of the raid and that he advised the defendant and directed the destruction or removal of certain personal property in building C.

The plaintiff contends that defendant, sheriff of Berrien county, Michigan, became a private citizen and a trespasser and acted wholly without jurisdiction or authority when he entered upon the plaintiff's premises in Indiana, and therefore became liable for the damages perpetrated, caused, permitted or condoned by him and his deputies and other officers and persons. On the other hand, defendant claims in effect: (1) That any acts by him or his deputies in the State of Indiana were lawfully done under the direction of the sheriff of LaPorte county; (2) that by engaging in the commission of illegal and immoral acts plaintiff is precluded by public policy from maintaining this action and recovering damages; (3) that the raid upon plaintiff's premises was a cooperative effort and was not conducted, accomplished or directed solely by the defendant; and (4) that the seizure, destruction or damaging of plaintiff's property in Indiana was initiated, carried out, and completed pursuant to the orders of the prosecuting attorney of Berrien county.

It is a well-established rule that the power and authority of a county sheriff are limited to the confines of his county and that when he exceeds that jurisdiction he is acting as a private citizen. In McLean v. State of Mississippi ex rel. Roy, 5 Cir., 96 F.2d 741, at pages 744, 745, 119 A.L.R. 670, certiorari denied 305 U.S. 623, 59 S.Ct. 84, 83 L.Ed. 399, which involved an action on a Mississippi sheriff's surety bond for acts of the sheriff outside the State of Mississippi, the court held:

"The state law, like the common law, confines a sheriff's duties to the county in and for which he is elected. * * * The State of Mississippi

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