Palmentere v. Campbell

• Decision Date: 20 April 1965
• Docket Number: No. 17746.,17746.
• Citation: 344 F.2d 234
• Parties: Baldasaro PALMENTERE, Appellant, v. William J. CAMPBELL et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

344 F.2d 234 (1965)

Baldasaro PALMENTERE, Appellant, v. William J. CAMPBELL et al., Appellees.

No. 17746.

United States Court of Appeals Eighth Circuit.

April 20, 1965.

William J. Gilwee, Kansas Cty, Mo., for appellant.

Douglas Stripp, Kansas City, Mo., for appellees. Clayton R. Smalley, Kansas City, Mo., was on the brief with Douglas Stripp, Kansas City, Mo., for appellees Campbell, Cox, Gardner, Kellner, Schmidt & Sifers.

David H. Clark, Kansas City, Mo., on brief for appellee Leighton.

George T. O'Laughlin, Kansas City, Mo., on brief for appellees Campbell, Cox, Kincaid & Rogers.

Lowell L. Knipmeyer, William R. Fish, of Knipmeyer, McCann & Millett, Kansas City, Mo., filed brief for appellee Ralph G. Martin.

Roy A. Larson, Jr., Kansas City, Mo., filed brief for appellee William R. Stanley.

Before VAN OOSTERHOUT, BLACKMUN and MEHAFFY, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

Plaintiff Baldasaro Palmentere has appealed from final judgment dismissing his complaint against defendants William J. Campbell, LeRoy Cox, James E. Gardiner, Gordon Kellner, Russell G. Kincaid, Alfred Lighton, Ralph G. Martin, Robert M. Rogers, Raymond Schmidt, Clarence R. Sifers and William R. Stanley,¹ upon their motions to dismiss made pursuant to Fed.R.Civ.P. 41(b) at the close of plaintiff's case upon the ground that plaintiff has wholly failed to prove that defendants or any of them in any way had ordered, instigated, participated in, approved or condoned the alleged arrest of the plaintiff.

The defendants involved in this appeal were all members of a Grand Jury impanelled by the Circuit Court of Jackson County, Missouri. Defendant Kellner served as foreman of the Grand Jury. In this opinion, the word "defendants" will be used to describe the eleven Grand Juror defendants heretofore named collectively.

Plaintiff in his complaint states that he is bringing this action to redress the deprivation under color of state law of a right, privilege and immunity granted him by the Fifth and Fourteenth Amendments to the Constitution of the United States and that jurisdiction exists under 28 U.S.C.A. §§ 1331 and 1343, and 42 U.S.C.A. § 1983. We have serious doubt whether the trial court acquired jurisdiction. See Rhodes v. Meyer, 8 Cir., 334 F.2d 709, 711-712; Garfield v. Palmieri, E.D.N.Y., 193 F.Supp. 582, 586, aff'd 2 Cir., 290 F.2d 821.

A determination of the question of whether the Grand Jurors were acting in their official capacity under color of state law or as individuals would appear to be relevant upon the issue of jurisdiction as well as upon the issue of judicial immunity which we do not reach. The trial court found that the defendants had no part in the arrest and consequently did not reach the issue of whether defendants were acting as officials or individuals. We agree with the trial court's conclusion that the plaintiff has failed to establish that the defendants had any part in plaintiff's arrest and hence for the purpose of this case, we have chosen to assume without so deciding that jurisdiction exists.

On April 24, 1961, when plaintiff arrived at the Grand Jury quarters in response to a subpoena, the bailiff directed him to the witness room adjoining the Grand Jury room. The Grand Jury was meeting that day with all defendants present. At about 10:30 a. m. while plaintiff was seated in the witness room, he and other witnesses in the room were arrested by the Kansas City police officers and taken to jail. The police record shows the plaintiff was arrested at 10:30 a. m. on April 24, 1961, and held for an investigation and also shows the following: "REFUSED TO GIVE ANY INFORMATION Booked for investigation in connection with recent criminal activities in this city On authority of Asst. Prosecutor Ben Hudson Hold for County Grand Jury."

Plaintiff was released upon a writ of habeas corpus about 2:30 p. m. the same day. Plaintiff after his release reported to the Grand Jury and was then examined for the first time as a witness. Other facts will be set out in the course of the opinion.

The trial court as a basis for sustaining the motions of the defendants to dismiss made findings of fact inter alia, stating:

"There isn\'t any evidence that this Court can find that any of the grand jurors, with the possible exception of the foreman of the grand jury, had anything whatsoever to do with the plaintiff\'s arrest. In fact, I believe the evidence to be to the contrary, as shown by the interrogatories that have been introduced in evidence and some admissions against interest contained in their depositions introduced in evidence.

"There is no evidence that they brought about the arrest of the plaintiff, and therefore, would not be liable. There is no evidence that they acted as a grand jury.

* * * * * *

"It is the conclusion of the Court that this evidence is insufficient to show liability on the part of the grand jurors and that includes Kellner, the foreman.

* * * * * *

"There isn\'t any evidence that Kellner did anything to bring about the arrest, nor did he do anything to prevent it. He stated that he assumed the police had a right to do what they were doing.

"The police have no power over the grand jury nor did the grand jury have any control over the police department. I do not believe, gentlemen, that this evidence is sufficient to show that his inaction, his failure to do something to stop the police would render him liable."

Plaintiff's principal contention upon appeal is that the court erred in making the findings above set out and in holding that the evidence was insufficient to meet the burden of proof imposed upon the plaintiff to establish his claim that the defendants were legally responsible for his arrest. It may be assumed for our purposes that the arrest was unlawful.²

The issue before us is whether plaintiff has met the burden imposed upon him to establish legal responsibility on the part of the defendants for the arrest. A discussion of the standards of review here applicable appears appropriate.

Plaintiff contends that upon review of the judgment here attacked, he is entitled to have the evidence viewed in the light most favorable to him and that he is entitled to have the benefit of inferences that may reasonably be drawn from the evidence. Such is the recognized rule on review of directed verdicts in cases tried to a jury. Cases cited by plaintiff to support his position are cases which were tried to a jury. Here the case was tried to the court without a jury and the court was the finder of facts. In cases tried to the court without a jury, the rule is:

"On a motion made under Rule 41(b), the judge, when sitting without a jury, must weigh and evaluate the evidence in the same manner as if he were making findings of fact at the conclusion of the entire case. The Rule also provides that these findings of fact shall be made `as provided in Rule 52(a)\', and the defendant validly reasons that since Rule 52(a) states that findings of fact shall not be set aside unless clearly erroneous, that test must apply in our review of the district court\'s findings in this case." Benton v. Blair, 5 Cir., 228 F.2d 55, 58.

To like effect, see Southern Arizona York Refrigeration Co. v. Bush Mfg. Co., 9 Cir., 331 F.2d 1, 6; O'Brien v. Westinghouse Elec. Corp., 3 Cir., 293 F.2d 1, 9; Penn-Texas Corp. v. Morse, 7 Cir., 242 F.2d 243, 246; Huber v. American President Lines, 2 Cir., 240 F.2d 778, 779; Allred v. Sasser, 7 Cir., 170 F.2d 233, 235.

"To support a judgment for damages for false imprisonment the burden is upon the plaintiff both to plead and to prove one of two things, either (1) that the defendant made the unlawful arrest and participated in the unlawful restraint or (2) that the defendant affirmatively instigated, encouraged, incited, or caused the unlawful arrest." Burlington Transp. Co. v. Josephson, 8 Cir., 153 F.2d 372, 376.

See Richardson v. Empire Trust Co., 230 Mo.App. 580, 94 S.W.2d 966, 970.

There is no real dispute between the parties as to the law applicable to false imprisonment. In Knupp v. Esslinger, Mo.App., 363 S.W.2d 210, 213, cited by plaintiff, the court states: "It is thoroughly settled law that a person is liable for a false arrest made by another if he `directed, advised, countenanced, encouraged, or instigated' such arrest. Snider v. Wimberly, 357 Mo. 491, 209 S.W.2d 239."

35 C.J.S. False Imprisonment § 39, cited by plaintiff, states that one may become liable for a false imprisonment by conduct amounting to an adoption or ratification of a wrongful arrest or detention.

An affirmative act is necessary to render one liable for false imprisonment. Consent to or acquiescence in the acts of another for which one is not otherwise responsible cannot be used as the basis of the imposition of liability for false imprisonment. See Triangle Motors Co. v. Smith, 216 Ky. 479, 287 S.W. 914; Hoock v. S. S. Kresge Co., Mo.App., 222 S.W.2d 568; State ex rel. Fireman's Fund Ins. Co. v. Trimble, 294 Mo. 615, 242 S.W. 934; 22 Am.Jur. False Imprisonment § 30; Annot. 10 A.L.R. 1322.

In State ex rel. Fireman's Fund Ins. Co. v. Trimble, supra, the court reaffirms and quotes from McMannus v. Lee, 43 Mo. 206, as follows:

"`But, on the other hand, it is to be borne in mind that mere presence at the commission of a trespass or other wrongful act does not render a person liable as a participator therein. If he is only a spectator, innocent of any unlawful intent, and does no act to countenance or approve those who are actors, he is not to be held liable on the ground that he happened to be a looker-on and did not use active endeavors to prevent the commission of the unlawful acts.\'" 242 S.W. 934, 935.

In Richardson v. Empire Trust Co., supra, the court holds:...