Nesmith v. Alford

Decision Date30 May 1963
Docket NumberNo. 19609.,19609.
Citation318 F.2d 110
PartiesBarbara A. NESMITH and Richard A. Nesmith, Appellants, v. H. D. ALFORD et al., Appellees.
CourtU.S. Court of Appeals — Fifth Circuit





Benjamin E. Smith, New Orleans, La., Clifford J. Durr, Montgomery, Ala., for appellants.

Hugh Maddox, John Peter Kohn, Jr., Montgomery, Ala., Calvin M. Whitesell, Ira Dement, Whitesell & Dement, Montgomery, Ala., for appellees Sullivan and Alford.

Thomas B. Hill, Jr., James J. Carter, Hill, Hill, Stovall & Carter, Montgomery, Ala., for appellee Eiland.

Before RIVES, CAMERON and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

This appeal from adverse judgments on jury verdicts denying claims for damages for arrest, imprisonment and criminal prosecution of white persons triggered by their eating with Negroes in a public restaurant in Montgomery, Alabama, presents a number of questions both of Alabama and federal law. Basic to each claim is the question whether the trial Court should have granted instructed verdicts as to liability on each of the three theories of recovery. To the extent that one or more or all of the counts presented jury issues, there is a question as to the correctness of jury charges given or refused. Next there is a question of admissibility of evidence of prior racial strife which the Court allowed as bearing on good faith. Finally, there is the question whether the instructed verdict for one of the defendant police officers was proper. As to this latter item, we affirm. As to the other matters, we hold there was error for the reasons later discussed. We accordingly reverse and remand.

The Plaintiffs who have perfected their appeal to this Court as Appellants are Dr. and Mrs. Richard Nesmith. Filling out the cast of characters as Defendants-Appellees are Commissioner of Public Affairs Sullivan, Chief of Police Ruppenthal, Desk Captain Eiland, and Police Sergeant Alford. The Complaint is in three counts. Of these Count I for malicious prosecution and Count II for false imprisonment are Alabama-Erie claims resting on diversity jurisdiction. 28 U.S. C.A. § 1332. Count III seeks $50,000 damages caused by the conspiracy of the Defendants acting under color of state law to deprive Plaintiffs of their constitutional rights contrary to the Federal Civil Rights Acts. 42 U.S.C.A. § 1983; 28 U.S.C.A. § 1343. The District Court, after instructing a verdict in favor of Captain Eiland, submitted the case to the jury as to all other Defendants and all counts under a general charge. A general verdict for each of the Defendants as to each of the Plaintiffs was returned. Judgments of dismissal were entered on the verdicts. For a case so fraught with emotional overtones from local racial patterns and practices, the case was remarkably free from any real dispute as to underlying facts.


Dr. Nesmith was the Dean of Men and head of the Sociology Department at MacMurray College in Jacksonville, Illinois. As part of the scholastic program, his students often went on field trips. On this particular trip in the spring of 1960, Dr. Nesmith, his wife (who went along as a chaperone), their two-year-old daughter, and ten students went south to study, among other things, the use of the non-violent technique as a method of sociological change in relation to the so-called "Montgomery Bus Boycott." See Browder v. Gayle, M.D. Ala., 1956, 142 F.Supp. 707, affirmed, 1956, 352 U.S. 903, 77 S.Ct. 145, 1 L.Ed.2d 114.

The group arrived in Montgomery, Alabama about 10:00 p. m. on the night of March 30, 1960. The following morning they interviewed the Montgomery Improvement Association, a Negro organization. As lunchtime approached, the discussion was not concluded, so the entire group, both Negro and white, adjourned to the Regal Cafe, a Negro cafe in a Negro neighborhood. The group arrived at the cafe shortly before 12:00 noon and proceeded to a private dining room from which they could neither see out nor could people on the outside see in. At the time of arrival, the street outside the cafe was relatively quiet. A few people were walking around, sunning, reading on their porches, etc.

At approximately 11:45 a. m., Desk Captain Eiland of the Montgomery Police Department received a telephone call from an unidentified person who stated that some young white girls were going into the Regal Cafe with Negroes. Eiland relayed this information to Inspector Cox and told him to investigate. Cox arrived about 12:15 p. m. and looked the situation over. He found an orderly group of whites and Negroes sitting around a table having lunch and engaging in discussion. Cox asked the executive secretary of the Montgomery Improvement Association if all of these people were from Montgomery, to which he got a negative answer. Cox then went outside and called his superior, Sergeant Alford, "and told him what the situation was."1 A few minutes later, Alford came on the scene. Alford looked inside the cafe and immediately reported the situation to Chief of Police Ruppenthal. A crowd had started gathering outside the cafe and had congested the area to such an extent that by the time Ruppenthal arrived, he was forced to park some 300 yards away from the cafe.

Eventually there were numerous policemen, including some state highway patrolmen, in and around the cafe. Ruppenthal recognized Rev. DuBose, a negro with the group, as being the leader in a recent march on the Capitol. (See Part II). Someone began taking pictures of the mixed group inside the dining room. At no time was loud or boisterous language used inside the cafe, nor were there indications of violence of any type. Ruppenthal waited inside the cafe for forty-five minutes to see if "they were going to leave or anything." At no time were the members of the group informed that they were violating the law or that they must leave the cafe. According to Ruppenthal, "they made no attempt to leave."

In the meantime, Commissioner Sullivan had arrived. Someone told Sullivan that these people wouldn't leave; he assumed someone had asked them to leave, and they had refused. Sullivan telephoned the city attorney and described the situation. The attorney advised Sullivan that these people should be removed from the premises to prevent further trouble.

Sullivan told Ruppenthal to "move them out." Ruppenthal told Alford to get some transportation, meaning, of course, vehicles to carry these people to jail. Alford complied. Ruppenthal walked up to the group and said, "All right, let's go." "You, you and you." There was no warrant presented, nor was there any explanation given as to why the arrests were being made. The entire group was taken forcibly to the police station; the men were loaded into the paddy wagon, the women in cars.

By this time, the crowd outside had reached sizeable proportions, estimates ranging from 50 to 150 persons, consisting largely of Negroes. However, the streets were completely congested with cars containing white persons. After the arrests, the police quickly dispersed the crowd and started cars moving again on the streets.

Upon arrival at the police station, the prisoners were processed and placed in jail. The minor child of Dr. and Mrs. Nesmith was taken from them. About 6:00 o'clock of the same evening, Dr. and Mrs. Nesmith through their lawyer arranged for bail and were let out. The remainder of the group stayed in jail overnight. The parents immediately began the search for their child which ended about 10:00 o'clock that night. Although the child had apparently been well taken care of by the Juvenile Court matron and suffered no harm, Mrs. Nesmith testified that she suffered much anxiety during this time as to the whereabouts and well being of her child.

The next morning (April 1, 1960) Assistant Chief of Police Stanley (who is otherwise not involved in this case) told Sergeant Alford that he had so to speak been elected to sign some affidavits charging each member of the group with disorderly conduct in violation of a recent city ordinance which had been passed on advice of counsel to more fully comply with the state law concerning the same offense. Alford signed the affidavits in blank. They were subsequently filled in and warrants issued by Desk Captain Eiland. Although it was believed not necessary to have warrants for a prosecution in the local Recorder's Court (municipal court), it was thought better to provide warrants in the event there should be an appeal. Trial was held that same morning in Recorder's Court of the City of Montgomery. Alford, Ruppenthal and Sullivan each testified. The entire group was convicted of disorderly conduct and let out on bond.

Appeals were taken to the Circuit Court of Montgomery County. Presumably following the usual procedure when a case is appealed from the Recorder's Court, the prosecutions there were on complaints filed by the City Attorney. Upon trial de novo, the jury found all of the defendants not guilty with the exception of Dr. Nesmith. He appealed to the Alabama Court of Appeals which reversed the conviction for a defect in the complaint on the authority of DuBose v. City of Montgomery, 1961, 41 Ala.App. 233, 127 So.2d 845. This was on April 12, 1961. At that time the one-year statute of limitations had run. The complaint was accordingly dismissed.


Over the strong objection of Plaintiffs, the trial Court admitted testimony concerning prior racial incidents in Montgomery. It facilitates discussion of this claim of error to summarize this evidence separately. The synopsis is stated most favorably to the jury verdicts, and hence the Defendants.

On February 25, 1960, there was an attempt by some Negro students to integrate the lunch room in the court house in Montgomery, Alabama. On February 27, a Negro woman was struck on the head with a baseball bat by a white boy. The following day, there were protest...

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