Mississippi Supreme Court, 1946

State, for Use of Floyd v. McCrory

Mississippi Supreme Court · Decided September 23, 1946 · McGehee, Smith

27 So. 2d 365; 200 Miss. 362; 1946 Miss. LEXIS 299 (Southern Reporter, Second Series)

Counsel

Ernest L. Shelton, of Jackson, for appellant. It is admitted by the sheriff in this record that he had no warrant for the arrest of Tressie Mae Floyd. Code of 1942, Sec. 2470, Code of 1930, Sec. 1227. The only explanation which the sheriff attempts to make, or to justify this high-handed conduct on his part, is that the child's mother, Oner Mae Floyd, consented for him to place Tressie Mae in jail. Tressie Mae Floyd was a well developed young girl eleven years of age and in the fifth grade in school. She attended both school and Sunday School. She testified she knew she was in jail, locked up in jail, and that she did not wish to go to jail. Her mother testified that her children did not wish to go to jail. It might be true that they wanted to be with their mother, it is but natural that they would, but under the circumstances and uncontradicted facts in this record they had no other alternative but to go to jail. They were forced to go. When they left their home the sheriff assured Mrs. Floyd he would take the children by the mill to their father and this he later refused to do. Tressie Mae, and any eleven year old child, is mature enough and capable of understanding and appreciating the nature, extent and consequences of this invasion of her personality, to-wit: this false arrest and false imprisonment, and even if her mother was forced to consent to her incarceration, the consent of her parent or mother does not affect the rights of Tressie Mae Floyd to recover for the invasion. Restatement of the Law of Torts, Ch. 33, Sec. 704. See also Restatement of the Law of Torts, Secs. 49, 59. Neither Tressie Mae Floyd nor her mother, Oner Mae Floyd, could consent to the incarceration of Tressie Mae Floyd by reason of the juvenile delinquency act. Nor could the sheriff incarcerate Tressie Mae without complying with the provisions of the juvenile delinquency act. The juvenile delinquency act must be read and construed together with the other laws of the State. This act is not only for the protection of minor children in this State but for the protection of parents and their minor children as well, and had the sheriff followed the plain reading of this act no cause of action would have accrued to the plaintiff and the sheriff would have been fully protected. Laster v. Chaney, 180 Miss. 110 , 177 So. 524 , 526; Weber v. Doust et al., 146 P. 623; Code of 1942, Secs. 7185, 7186, 7197, 7199, 7200, 7205; 35 C.J.S. 518, Sec. 17. Surely Tressie Mae Floyd and her little sisters were "dependent and neglected children" within the meaning of the act. Surely they were destitute. Surely they lacked proper parental care by reason of default or habits of their parents. Surely their parent could not provide the proper or necessary care for their health, morals or well being. Under the circumstances it became the legal duty of the sheriff to immediately take these children before the juvenile court, which is in session at all times, or to the probation officer. The law required him to do so. Under the law it was his duty not to incarcerate Tressie Mae Floyd and her two sisters. Had the sheriff followed the clear mandate of the statute his responsibility would have been at an end. Weber v. Doust et al., supra; 35 C.J.S. 518, Sec. 17. But instead of proceeding under the act he locked them up in the county jail and branded them common criminals, for which illegal and unwarranted action under the law he should be held accountable. The burden of proof in an action for false imprisonment is upon the plaintiff until a prima facie case has been made out. If the plaintiff shows that the imprisonment was by force or threats or without process of law, the presumption arises that the imprisonment was unlawful, and he has established a prima facie case. The burden of proof is then upon the defendant to justify the imprisonment by showing that it was effected under lawful authority. 22 Am. Jur. 422, Sec. 107, notes 2, 4, 5. O.B. Triplett, Jr., and Nichols Huff, all of Forest, for appellees. The jury determined that there was no false arrest for false imprisonment of appellant. Restatement of the Law of Torts, Sec. 35. If there was any confinement, the act was consented to both by appellee and her mother. Restatement of the Law of Torts, Sec. 59; Code of 1942, Sec. 399. Where the person is too young to have a choice, we must refer to legal principles to see who is entitled to the custody because the law presumes that, where the custody is, no restraint exists. Barker v. Washburn, 200 N.Y. 280 , 93 N.E. 958 , 140 Am. St. Rep. 640; People v. Wilcox, 22 Barb. 178; King v. Greenhill, 4 Adol. E. 642; People v. Porter, 1 Duer 709; Commonwealth v. Nickerson, 5 Allen (87 Mass.), 518. See also Mercein v. People, 25 Wend. 64, 35 Am. Dec. 653; People v. Walts, 122 N.Y. 238 , 25 N.E. 266.

Opinion of the Court

*366 McGehee, J.,

delivered the opinion of the court.

This is a suit against the sheriff and his official bond for damages for the alleged false arrest and-imprisonment of Tressie Mae Floyd, a minor, who is about eleven years- of age, and who, according to the testimony of the sheriff and his deputy, which the jury found to be true, chose to go to jail with her mother, who was lawfully arrested under a warrant on a charge of assault and battery with intent to kill and murder, rather than stay at the home of her grandfather, who was willing to take care of her pending the return of the father to the home that afternoon or until her mother was released on bond.

The suit is in the name of the State through the child ’s mother and next friend, and the mother testified that the sheriff required that she “get the children ready” and take them to jail with her instead of waiting for her husband’s return to their home; and that the sheriff then promised the mother that he would take her by a sawmill were her husband was at work and permit her to leave the children with him, and that the sheriff thereafter refused to do so.

On the contrary, the sheriff and his deputy testified that they waited at the home for two hours or longer for the return of the husband, who, it was claimed, was expected to return at most any moment, and that there was no agreement on the part of the officers to take the children to their father at the sawmill. That as a matter of fact the sheriff, when en route to the home of Mrs. Floyd, went by the home of the justice of the peace, procured a blank bond, ascertained the time at which it should be made returnable, advised the accused of her right to make bond, and thereafter carried her and the children by the home of her father in order that he might sign the bond upon the agreement of the sheriff to get other sureties to sign the same with him; that the grandfather of the children declined to sign the bond but expressed a willingness to take care of the children pending *367 the execution of a bond and that when the children were unwilling to stay at their grandfather’s and insisted on going on to jail with their mother, the sheriff, at her instance and request and in accord with the wishes of the children, permitted them to remain in her custody and accompany her into the jail. That-the sheriff did not arrest the children at all and had no complaint against them, and they were not placed in jail against their will but in compliance with their desire and the mother’s request in that behalf. That immediately upon arrival at'the county site the sheriff undertook to communicate with a prospective bondsman, whose name was suggested to him by the mother, and who- with other sureties made her bond about 10 o’clock that night after the mother and children had remained in .jail' for approximately three hours.

Complaint is further made that they were placed in jail where a drunk man and a negro woman were also confined. It was shown, however, by the testimony for the defendants herein, that these two prisoners were locked up in their own cells; that the sheriff was considerate of the accused and her children in every way, caused clean sheets and pillow cases to be placed on the beds in the room where they stayed until her release on bond, and that he violated no official duty towards them.

We are, therefore, of the opinion that under the version given by the sheriff and his deputy, which the jury had a right to believe, there was no willful or wanton conduct shown on the part of the officers and that they had done everything that could have been reasonably expected of them to avoid the placing of the children in jail. That the sheriff did not take the children into his custody against their will but merely permitted them to remain in the custody of their mother in keeping with their desire and at her request.

There is no question of a contract being involved to which a minor is incapable of giving consent. The issue is whether the sheriff placed the little girl in jail against- *368 her will or merely permitted her to go in there with her mother at the instance of both. If under the circumstances disclosed by the testimony of the sheriff and his deputy there is liability on the part of the officers for false arrest and imprisonment, or for false imprisonment, then it would follow that a sheriff could never permit a person under 21 years of age to enter the jail and visit a parent, even with the consent of both the parent and such minor.

There are certain legal rules which in the abstract may tend to support the contention that a false imprisonment is involved where a child, against whom no criminal charge is pending, is placed in jail, but when the reason for the application of such rules is lacking, as in the instant case, they can not be invoked to sustain an action against the officers, and especially where the jury is warranted in believing that the child was not imprisoned against his or her will.

Moreover, we think that the contention made to the effect that the sheriff should have invoked the procedure provided for by our juvenile statutes, is not well taken. The sheriff with a valid warrant to execute is not required to delay action thereon until a hearing can be had before a juvenile court and some disposition made of the children of an accused, and especially where the latter insists on keeping the children under his or her own care and custody pending the execution of an appearance bond, instead of compelling them pending the return of the other parent which is expected before nightfall, to remain with a near relative who is willing to care for them in the meantime. "We are, therefore, of the opinion that the plaintiff was not entitled to a peremptory instruction against the officer and his official bond as contended for, but that the issue was one for the jury under the conflicting evidence, and that hence the verdict of the jury and judgment of the court denying liability should be affirmed.

Smith, Cl J., took no part in this decision.

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