Simmons v. Whitaker, No. 16746.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBORAH, TUTTLE and CAMERON, Circuit
PartiesHelen SIMMONS, Appellant, v. W. WHITAKER et al., Appellees.
Decision Date14 February 1958
Docket NumberNo. 16746.

252 F.2d 224 (1958)

Helen SIMMONS, Appellant,
v.
W. WHITAKER et al., Appellees.

No. 16746.

United States Court of Appeals Fifth Circuit.

February 14, 1958.


252 F.2d 225

Louise C. Rowen, Galveston, Tex., for appellant.

R. A. Richardson, Robert S. Coe, Kountze, Tex., for appellees.

Before BORAH, TUTTLE and CAMERON, Circuit Judges.

CAMERON, Circuit Judge.

This appeal is from a judgment of the District Court denying appellant's motion for a directed verdict and granting appellees' motion for a directed verdict made at the conclusion of appellant's evidence. Its action was based upon want of jurisdiction under the holding that the evidence offered did not develop a case under the Civil Rights Statute under which the action was brought.1

The action was brought against W. Whitaker, Sheriff of Hardin County, Texas, a deputy, and the surety on the sheriff's bond; against Hardin County, Texas, its county judge and its four county commissioners; against Hardin County Hospital and the five individuals comprising its board of managers; and against B. P. Dockery, a private citizen of said county. Damages were demanded against each of the appellees for unlawful arrest and detention of, and for the wrongful extraction of money from, appellant in payment of a hospital bill she claimed she did not owe. Jurisdiction was invoked under 28 U.S.C.A. § 13432 and 42 U.S.C.A. § 1983 "To redress the deprivation, under color of State law, statute, ordinance, regulation, custom or usage of a right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States."3

The District Court denied a motion to dismiss filed on behalf of all of the appellees challenging the jurisdiction of the Court, and proceeded to hear the evidence.4

252 F.2d 226
The evidence which appellant claims made out a jury case was as follows

Appellant Helen Simmons was the daughter of Charlie Bogany, who was murdered June 8, 1954, while employed by Kirby Lumber Company of Honey Island, Hardin County, Texas. He had separated from appellant's mother when she was a small child and, at the time of his death, was married to a woman referred to in the record as Gustevia.5 Appellant was beneficiary under a group life insurance policy Bogany carried through the lumber company and was entitled to receive the proceeds of the policy amounting to $3,000. Sheriff Whitaker had learned of the policy and that appellant was beneficiary, in his investigation of Bogany's murder. Bogany had been carried to the Hardin County Hospital and Sheriff Whitaker had stood for his bill and, for that reason, he had requested Dockery, employee of Kirby, to notify him when the check came. Grice, the undertaker, had made a similar request and Dockery notified both when the check arrived. Appellant learned of the arrival of the check through undertaker Grice.

Appellant, resident of another county, was brought to Honey Island by Reverend Benford, and the two had driven by Grice's home about nine miles distant, and had picked him up and the three called at the Kirby office for the check. They were informed that the check was not then ready for delivery and were told to wait a while; and they waited on the porch of the commissary and in Rev. Benford's car. In the interim Dockery telephoned Sheriff Whitaker, who arrived in a short time with his deputy, one or both of whom bore arms. He had with him upon arrival the hospital bill amounting to about $115 due by Bogany, and also a bill for approximately $1,164.55 due for hospital services to Claudia Ford, which bill the testimony tended to show had been "stood for" by Bogany.6 This bill had been handed to the sheriff by the jailer who probably had received it from the hospital superintendent.

Appellant and Whitaker had a conversation and appellant advised him that she did not mind paying her father's bill, but that she did not think she ought to pay the Claudia Ford bill. The sheriff demanded payment of both, telling her that "he will hold the check, if I didn't pay the bill, and he will hold me too if I didn't pay that bill." Reverend Benford then talked with the sheriff, arguing that appellant should not be made to pay the Ford bill. The sheriff became very angry, using abusive language and telling Rev. Benford that he would seize the check and hold it if the bill was not paid. After extended conversations, Rev. Benford advised appellant to go ahead and pay the two bills. He did this because both he and appellant were frightened.

Kirby required an affidavit from appellant that she was the beneficiary in the policy, and she, Rev. Benford, Grice, Whitaker and the deputy went over to the post office to have the instrument executed before a notary. This done, appellant, Rev. Benford and Grice got into one car and started to the bank, and the sheriff and his deputy followed behind them in another car. Appellant and her friends entered the bank just in advance of the sheriff and the deputy. The sheriff

252 F.2d 227
identified appellant and the banker reluctantly agreed to cash the check. The money was counted out in the presence of and under the chaperonage of all five, and was handed over to appellant, who placed it in her purse

The sheriff then asked appellant's group if they knew the way to the hospital and were advised by Rev. Benford that they did not. He told them to follow him, and he and his deputy led the way, the other three following in Benford's car. Upon arrival at the hospital, all five of them went into the office and both bills were paid by appellant and receipts issued. The sheriff remained in the office during a part, and possibly during all, of these proceedings.

Appellant and her two friends left and drove to the home of Grice some miles away where they had lunch. All of this took place on July 28, 1954. In August, a trial was held and appellant was a witness, remaining in and around the courthouse at Kountze three days, and the murderer of Bogany was convicted. She did not approach the county judge or the sheriff or anyone else concerning the transaction which had taken place on July 28th, and the matter was not mentioned to anyone connected with any of the defendants until the early part of December. At that time appellant's attorney mentioned it to the county judge and told him what she contended to be the circumstances of the payment. The county judge advised her that a claim should be filed with the Commissioner's Court and it would be passed upon as any other claim. On December 6th, the attorney wrote a letter7 apparently to Mrs. Hazel Matthews Hartwell, a nurse who had been temporary administrator of the hospital at the time the money was paid (she was not sued).

No claim was ever filed with the Commissioner's Court, and none with the hospital except as was contained in the quotations from the letter, fn. 7 supra. None of the officials of the hospital or the county who were put on the stand had ever heard of the claim until this civil action was filed nearly two years after the occurrence, except the county judge, and none had participated in or had knowledge of the acts of the sheriff in making the collection.8

Under Chapter 3, Title 33, Articles 1572 et seq., 3 Vernon's Civil Statutes of the State of Texas, the counties of Texas are established as bodies "corporate and politic," and it is provided that no county shall be sued unless the claim has first been presented to the Commissioner's Court and payment has been neglected or refused. By the same Code, Chapter 5, Articles 4478 et seq., the Commissioner's Court is empowered to establish a

252 F.2d 228
county hospital, to levy taxes for its maintenance, to appoint a board of managers subject to its will, and to pay all bills and accounts approved by the board of managers and transmitted to it. Under these statutes, supplemented by the testimony, the hospital was not the custodian of any monies, and it had no right to disburse any monies or pay any bills

Appellant makes an extended argument that she was entitled to maintain her action under the Civil Rights Statute quoted above, but she produces no authority to sustain it.9 It seems logical to distinguish these federal decisions before considering the other side of the argument.

Picking involved a complaint more than 150 pages long, and the court below had dismissed it largely because in its opinion it did not conform to Fed.Rules Civ.Proc. Rule 8(e), 28 U.S.C.A. requiring that the averments of a pleading must be simple and concise and direct. But the Court of Appeals proceeded to fashion, from the disjointed averments, a pleading which in its opinion set forth three causes of action. Jurisdiction of the second and third, charging false imprisonment, was sustained because of diversity of citizenship between plaintiffs and all of the defendants. The first cause of action alone was thought to be sustainable under the Fourteenth Amendment as sought to be implemented by the Civil Rights laws. Without going into this phase of the decision in any detail, it is sufficient to point out that the Court of Appeals states 151 F.2d at page 247, "The plaintiffs do not allege a denial of equal protection of the laws;" and quotes from Supreme Court cases language which demonstrates the non-applicability of that case to this one.

For example, the Picking decision states, 151 F.2d at page 248: "In United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368, in which Section 20 of the Criminal Code * * * was under discussion Mr. Justice Stone stated, `This use of power, possessed by virtue of...

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11 practice notes
  • Peoples Cab Co. v. Bloom, Civ. A. No. 70-1402.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • August 19, 1971
    ...must show that his conduct embraced functions he was authorized to perform by the Commonwealth of Pennsylvania. Cf. Simmons v. Whitaker, 252 F.2d 224 (5th Cir. Plaintiffs seem to rely entirely for recovery under the Civil Rights Act on the allegations that the defendant as Chairman of the P......
  • Sharp v. Lucky, No. 16687.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 28, 1958
    ...statutes. A like result was reached in No. 16,848, Roark v. West, 5 Cir., 1958, 251 F.2d 956. And in Simmons v. Whitaker, 5 Cir., 1958, 252 F.2d 224, we upheld dismissal by a district court of a claim based explicitly on the statute before us, emphasizing again that this Court is committed ......
  • Martinez v. Richardson, No. 72-1426.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • January 29, 1973
    ...81 S.Ct. 534, 5 L.Ed.2d 551 (1961); Saylor v. Lindsley, 391 F.2d 965, 968-969, 5 A.L.R.Fed. 885 (2d Cir. 1968); Simmons v. Whitaker, 252 F.2d 224, 231 (5th Cir. 1958); Smith v. Ford Gum & Machine Co., 212 F.2d 581, 583 (5th Cir. 1954); Warren for Use and Benefit of Walker v. Pearson, 195 F.......
  • Tullier v. Giordano, No. 17450.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 24, 1959
    ...of the Supreme Court into proper focus. The Snowden case was discussed by us at some length in the case of Simmons v. Whitaker, 1958, 252 F.2d 224; and the more extended quotation from it at pages 229-231, as well as in the dissenting opinion in Reddix v. Lucky, 5 Cir., 1958, 252 F.2d 930, ......
  • Request a trial to view additional results
11 cases
  • Peoples Cab Co. v. Bloom, Civ. A. No. 70-1402.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • August 19, 1971
    ...must show that his conduct embraced functions he was authorized to perform by the Commonwealth of Pennsylvania. Cf. Simmons v. Whitaker, 252 F.2d 224 (5th Cir. Plaintiffs seem to rely entirely for recovery under the Civil Rights Act on the allegations that the defendant as Chairman of the P......
  • Sharp v. Lucky, No. 16687.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 28, 1958
    ...statutes. A like result was reached in No. 16,848, Roark v. West, 5 Cir., 1958, 251 F.2d 956. And in Simmons v. Whitaker, 5 Cir., 1958, 252 F.2d 224, we upheld dismissal by a district court of a claim based explicitly on the statute before us, emphasizing again that this Court is committed ......
  • Martinez v. Richardson, No. 72-1426.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • January 29, 1973
    ...81 S.Ct. 534, 5 L.Ed.2d 551 (1961); Saylor v. Lindsley, 391 F.2d 965, 968-969, 5 A.L.R.Fed. 885 (2d Cir. 1968); Simmons v. Whitaker, 252 F.2d 224, 231 (5th Cir. 1958); Smith v. Ford Gum & Machine Co., 212 F.2d 581, 583 (5th Cir. 1954); Warren for Use and Benefit of Walker v. Pearson, 195 F.......
  • Tullier v. Giordano, No. 17450.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 24, 1959
    ...of the Supreme Court into proper focus. The Snowden case was discussed by us at some length in the case of Simmons v. Whitaker, 1958, 252 F.2d 224; and the more extended quotation from it at pages 229-231, as well as in the dissenting opinion in Reddix v. Lucky, 5 Cir., 1958, 252 F.2d 930, ......
  • Request a trial to view additional results

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