James McDOWELL and Mary McDowell
v.
Marvin DAVIS, Individually and as Sheriff of Durham County, North Carolina, et al.
No. 7614DC938.
Court of Appeals of North Carolina.
July 6, 1977.*899 Legal Aid Society of Durham County by Denison Ray and Adrienne M. Fox, Durham, for plaintiffs-appellants.
Robert D. Holleman and Felix B. Clayton, Durham, for defendants-appellees.
HEDRICK, Judge.
One of plaintiffs' claims is based upon 42 U.S.C. § 1983 which provides,
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."
Plaintiffs contend that at trial they introduced sufficient evidence to support a jury verdict that defendants violated their Fourth Amendment right "to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. . .," and that they are entitled to compensation for the humiliation and embarrassment resulting from this violation irrespective of any damage done to their belongings.
If plaintiffs are correct in their contention that they presented sufficient evidence at trial of a violation of their constitutional rights, then they need not show any property damage to recover compensation for such harm as humiliation and embarrassment resulting from the violation of their constitutional rights. Hostrop v. Board of Junior College Dist. No. 515, 523 F.2d 569 (7th Cir. 1975), cert. denied, 425 U.S. 963, 96 S. Ct. 1748, 48 L. Ed. 2d 208 (1976); Piphus v. Carey, 545 F.2d 30 (7th Cir. 1976).
"The terms of § 1983 make plain two elements that are necessary for recovery. First, the plaintiff must prove that the defendant has deprived him of a right secured by the `Constitution and laws' of the United States. Second, the plaintiff must show that the defendant deprived him of this constitutional right `under color of any statute, ordinance, regulation, custom, or usage, *900 of any State or Territory.' This second element requires that the plaintiff show that the defendant acted `under color of law.'" Adickes v. S. H. Kress & Co., 398 U.S. 144, 150, 90 S. Ct. 1598, 1604, 26 L. Ed. 2d 142, 150 (1970).
In the present case the evidence is clearly sufficient to support a finding by the jury that the defendants in executing the eviction order were acting "under color of law."
A determination of whether there has been such a violation by defendants of plaintiffs' Fourth Amendment right against unreasonable search and seizure as to be actionable under § 1983 begins with Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961). In that case the Supreme Court held that plaintiffs, a husband, wife and their children, could maintain an action under § 1983 against Chicago policemen, who allegedly broke into their home, searched it without a warrant, and arrested and detained the husband without a warrant and without arraignment. The court pointed out that § 1983 was designed to give a remedy to parties deprived of their constitutional rights by an official's misuse or abuse of his authority. The court also pointed out that § 1983 does not require that a plaintiff show that the defendant had "a specific intent to deprive a person of a federal right." 365 U.S. at 187, 81 S.Ct. at 484. Instead, "[§ 1983] should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions." Id.
The Federal Circuit Courts have followed this Supreme Court mandate to apply § 1983 "against the background of tort liability that makes a man responsible for the natural consequences of his actions." For example in Jenkins v. Averett, 424 F.2d 1228 (4th Cir. 1970), the Fourth Circuit held that a plaintiff could maintain a § 1983 action against a police officer, who was "grossly and culpably negligent" in shooting him. The District Court had denied plaintiff relief under § 1983, accepting defendant's claim that he did not intend to shoot the plaintiff as a defense. The Fourth Circuit reversed, stating that "if intent is required, it may be supplied, for federal purposes, by gross and culpable negligence, just as it was supplied in the common law cause of action, [assault]." Id. at 1232. In Bryan v. Jones, 530 F.2d 1210 (5th Cir. 1976), the defendant-sheriff continued to keep plaintiff imprisoned in reliance upon a typographical error in a grand jury report after he should have been released. The Fifth Circuit held that plaintiff had made out a prima facie case under § 1983 since a prima facie case of false imprisonment at common law had been shown. The Court stated,
"The elements of the prima facie case are: (1) intent to confine, (2) acts resulting in confinement, and (3) consciousness of the victim of confinement or resulting harm. Restatement, Second, Torts § 35 (1965). Thus, a prima facie case is made out against a jailer even when he believes he has legal authority to detain a prisoner." Id. at 1213.
The common law analogues for plaintiffs' present § 1983 suit are actions for the intentional torts of trespass to land and chattels. See 59 Minn.L.Rev. 991, 991-997 (1975). At common law a person need not have the intent to trespass in order to be liable for trespass. To be liable for trespass a person need only intentionally go upon the land in the possession of another, when not privileged or authorized to do so. Matthews v. Forrest, 235 N.C. 281, 69 S.E.2d 553 (1952); Restatement (Second) of Torts § 158 (1965); Dobbs, Trespass to Land in North Carolina, 47 N.C.L.Rev. 31 (1968). To be liable for trespass to chattel, he need only intentionally dispossess the chattel of another or intermeddle with the chattel of another, when not privileged or authorized to do so. Restatement (Second) of Torts § 217. However, an officer is privileged when he evicts a person pursuant to a valid order of the court. Restatement (Second) of Torts § 210 provides:
"The privilege to execute an order of a court directing the actor to put a third person in possession of land of which another is in possession, or to do any *901 other act on the land, carries with it the privilege to enter the land for the purpose of executing the order, provided that any writ issued for the execution of the order is valid or fair on its face."
In the present case plaintiffs concede that the ejectment order in the hands of the sheriff was in all respects proper. They insist, however, that because the sheriff and his deputies executed the order in violation of their agreement and policy with DHA, the defendants are liable in damages pursuant to the provisions of § 1983.
Assuming arguendo that the evidence is sufficient to support findings by the jury that the sheriff had a policy and agreement with DHA for the unofficial cancellation of ejectment orders, and that DHA "properly requested the sheriff to cancel the execution against the eviction order," as the jury did in fact find, we are of the opinion that such findings will not support a conclusion that defendants, or either of them, violated plaintiffs' constitutional rights within the meaning of § 1983. A violation of such an unofficial and informal agreement or policy as shown here between the sheriff and the holder of an ejectment judgment is at most a breach of defendants' duties to exercise ordinary care, and does not divest the defendants of their authority to execute a valid judicial order. Thus, we are of the opinion that the trial judge did not err in not submitting to the jury an issue of damages for defendants' alleged violation of plaintiffs' constitutional rights within the meaning of § 1983.
Plaintiffs remaining assignments of error relate to the issues submitted to the jury and instructions thereon with respect to their claim for damages as a result of defendants' alleged negligence in executing the order of ejectment. There is no evidence in the record before us of any damage to plaintiffs' property or person. The only evidence with respect to damages relates to alleged humiliation, embarrassment, and emotional distress resulting from defendants' negligence.
"Mere hurt or embarrassment are not compensable. Flake v. Greensboro News Co., 212 N.C. 780, 195 S.E. 55 (1938)." Alltop v. J. C. Penney Co., 10 N.C.App. 692, 695, 179 S.E.2d 885, 887-88 (1971), cert. denied, 279 N.C. 348, 182 S.E.2d 580 (1971). For a plaintiff to recover for emotional or mental distress in an ordinary negligence case, he must prove that the mental distress was the proximate result of some physical impact with or physical injury to himself also resulting from the defendant's negligence. Williamson v. Bennett, 251 N.C. 498, 112 S.E.2d 48 (1960). Alltop v. J. C. Penney Co., supra. Since plaintiffs have shown no such physical impact or injury in this case, they have shown no compensable damages, and any error committed by the court with respect to issues 2, 3, 4(a) and 4(b) could not have been prejudicial.
We hold the plaintiffs had a fair trial on all their alleged claims, free from prejudicial error.
No error.
BROCK, C. J., and MARTIN, J., concur.