State of Arkansas v. Central Surety & Ins. Corp.

• Decision Date: 31 January 1952
• Docket Number: Civ. A. No. 541.
• Citation: 102 F. Supp. 444
• Parties: STATE OF ARKANSAS for Use and Benefit of TEMPLE et al. v. CENTRAL SURETY & INSURANCE CORP. OF KANSAS CITY, MO., et al.
• Court: U.S. District Court — Western District of Arkansas

102 F. Supp. 444

STATE OF ARKANSAS for Use and Benefit of TEMPLE et al. v. CENTRAL SURETY & INSURANCE CORP. OF KANSAS CITY, MO., et al.

Civ. A. No. 541.

United States District Court W. D. Arkansas, El Dorado Division.

January 31, 1952.

Paul K. Roberts, El Dorado, Ark., for plaintiffs.

DuVal L. Purkins, Warren, Ark., Carroll Hollensworth, Warren, Ark., for defendants Roy Green, W. F. Lyon, W. L. Little and Central Surety & Insurance Corporation of Kansas City, Mo.

Bridges, Bridges, Young & Gregory, Pine Bluff, Ark., for defendant Hartford Accident & Indemnity Co.

Ike Murry, Atty. Gen., for defendant, Phillip Gray.

Moore, Burrow, Chowning & Mitchell, Little Rock, Ark., for defendant Standard Accident Ins. Co. of Detroit, Mich.

JOHN E. MILLER, District Judge.

The real parties in interest as plaintiffs are W. L. Temple, his wife Vashti Temple, and their children, Carroll Gene Temple and Connie Lynn Temple. Defendants are Roy Green, Sheriff of Bradley County, Arkansas; W. F. Lyon, City Marshal of Warren, Arkansas; Phillip Gray, member of the Arkansas State Police; W. L. Little, who, it is alleged, "is now and was in the year 1950 acting as a Deputy Sheriff of the said Roy Green but was not duly appointed and qualified as the said Roy Green had not recorded such appointment of W. L. Little in the official records of the Circuit Clerk of Bradley County, Arkansas"; the Central Surety and Insurance Corporation of Kansas City, Missouri, on official bond executed by Roy Green as principal and this defendant as surety; the Hartford Accident and Indemnity Company, on official bond executed by W. F. Lyon as principal and this defendant as surety; and the Standard Accident Insurance Company of Detroit, Michigan, on official bond executed by Phillip Gray as principal and this defendant as surety.

Plaintiffs base their claims upon 28 U.S. C.A. § 1343 and 8 U.S.C.A. §§ 41, 43, 47(3) and 48. They allege that on September 9, 1950, while driving in their truck, they were forced off the highway by an automobile driven by W. L. Little; that thereafter W. L. Little threatened plaintiffs with words and with a drawn revolver, hammer cocked, and "did unlawfully, forcibly and falsely restrain the plaintiffs of their liberty, and did imprison the plaintiffs for a period of ten minutes on Highway 15, unlawfully, forcibly and against the plaintiffs' wills", and the said W. L. Little attempted to strike and did strike the plaintiff, W. L. Temple, two blows. It is further alleged that the defendants, Roy Green, W. F. Lyon and Phillip Gray, conspired with W. L. Little to deprive these plaintiffs of "their rights as citizens" and of "their liberty" and the overt acts of W. L. Little were pursuant to said conspiracy, and that the said defendants "conspired with, encouraged, aided and abetted the defendant, W. L. Little, in the execution of his unlawful acts". Also, it is alleged that W. F. Lyon and Phillip Gray drove by the scene of the occurrence on the highway, and although they were well aware of "the precariousness of plaintiffs' positions" failed and neglected to aid them; that after being assaulted and beaten on the highway plaintiffs drove to the county court house where defendant, Little, further assaulted plaintiffs and the defendants, Green, Lyon and Gray, realizing this and having the power to prevent the same, failed and neglected to do so. Plaintiff alleges that "the conspiracy entered into and the overt acts committed by the said defendants were done under the pretense of executing the law in their official capacities and under color of law". And, plaintiffs allege that they were not charged with any specific violation of the law and that they were not violating any law, nor was any warrant ever issued and served upon them. The prayer is for actual and punitive damages in varying sums by the various plaintiffs against the various defendants.

Without setting forth all that has transpired since the filing of the complaint, suffice it to say that the various defendants have now filed answers, and the defendants, Roy Green, W. L. Little, W. F. Lyon, Central Surety Insurance Corporation, and Hartford Accident & Indemnity Company have filed motion for summary judgment, which motion is based upon (1) the pleadings, (2) affidavit of Roy Green, (3) affidavit of W. L. Little, (4) affidavit of W. F. Lyon, and (5) discovery depositions of W. L. Temple and Vashti Temple. The respective parties have filed briefs in support of and in opposition to the motion for summary judgment, and the motion is now before the court for disposition.

The court has read and considered the pleadings and the various affidavits and depositions. And, from the study of this material, it appears to the court that, if at the trial the plaintiffs produce no evidence other than that disclosed here, it entertains grave doubts whether the plaintiffs will have made a case sufficient to entitle them to relief under the various statutes relied upon. However, without going into great detail as to the evidence disclosed by the affidavits and depositions, which is neither necessary nor warranted for purposes of the disposition of this motion, the court is not convinced that there is no genuine issue of fact.

As aptly stated by the Court of Appeals in Dulansky v. Iowa-Illinois Gas & Electric Co., 8 Cir., 191 F.2d 881, 883:

"The proceeding on motion for summary judgment is in the nature of an inquiry in advance of the trial for the purpose of determining whether there is a genuine issue of fact and not for the purpose of determining an issue of fact. (Citing cases.)

"As a summary judgment presupposes that there is no genuine issue of fact, findings of fact and conclusions of law are not required. It was not the purpose of this rule to require a party to try his case on affidavits with no opportunity to cross-examine witnesses; in fact, only in a rare case can it be determined by affidavit that the evidence available will be such as to entitle the movant, if the case were tried on its merits to a jury, to a directed verdict because there has been no opportunity to cross-examine the witnesses."

Also pertinent is the statement by Judge Parker in Pierce v. Ford Motor Co., 4 Cir., 190 F.2d 910, 915: "It is only where it is perfectly clear that there are no issues in the case that a summary judgment is proper. Even in cases where the judge is of opinion that he will have to direct a verdict for one party or the other on the issues that have been raised, he should ordinarily hear the evidence and direct the verdict rather than attempt to try the case in advance on a motion for summary judgment, which was never intended to enable parties to evade jury trials or have the judge weigh evidence in advance of its being presented."

The court feels that it must give plaintiffs every opportunity to make out a case, and in view of the allegations of the complaint, and notwithstanding their depositions, it is at least possible that they may be able to do so.

Plaintiffs rely upon Secs. 41, 43, 47(3) and 48 of 8 U.S.C.A., and Sec. 1 of the 14th Amendment to the Constitution of the United States.

The 14th Amendment contains three separate and distinct provisions guaranteeing rights of persons and property. It provides that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

8 U.S.C.A. § 41 guarantees equal rights to all persons within the jurisdiction of the United States as are enjoyed by white citizens, and since all parties involved in this case are white, as appears from the information now before the court, this section will not be applicable.

8 U.S.C.A. § 43 covers action under color of State law which subjects any person "to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws". It is noted that Sec. 43 is expressly limited to action under color of State law.

8 U.S.C.A. § 47(3) speaks of conspiracies "for the purpose of depriving * * * any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws". It contains no express provision of action under color of State law. However, it appears that the Supreme Court in Collins v. Hardyman, 341 U.S. 651, 71 S.Ct. 937, 942, 95 L.Ed. 1253, has sharply restricted, to say the least, the applicability of this section to individual, as distinguished from state, action. While it does not appear that the plaintiffs make any assertion of liability because of individual action, the limited scope of the activities charged here could not suffice. As in the Collins case, supra, the plaintiffs' rights "under the laws and to protection of the laws" would remain the same as every other Arkansan and subject to vindication in the same way and with the same effect as such other persons. Thus, as under Section 43, it would appear that Section 47(3) could be applicable here only if defendants acted under color of State law. In addition, plaintiffs will have to make a sufficient showing of a deprivation of "equal protection" or "privileges and immunities", and this appears unlikely from the information now available. Deprivation of equal protection contemplates a purposeful and systematic discrimination designed to favor one individual or class over another. Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 88 L.Ed. 497. And, as the court understands the law applicable to the situation apparently present in this case, the privileges and immunities spoken of are those incident to citizenship in the United States, as distinguished from those incident to citizenship in a State. It is necessary to examine the particular "rights" of the plaintiffs alleged to have been violated. They complain of defendant Little...