HISTORY and TIMES of THE KINGDOM
The Maine Law Court in 1912 made an unprecedented decision involving the fasle imprisonment of one of the Kingdom's members, Mrs. Florence Whittaker. The incident was the germ which spawned the Northern voyage debacle discussed elsewhere on the website. Had not Sandford so scupulously avoided the long arm of the law in the foreknowledge of this pending suit and put into shore to either take on supplies, make repairs and off load passengers, a largely different history of the Kingdom could have emerged.
MAINE TORT LAW Issue O (1994)
Donald N. Zillman, Jack H. Simmons, & David D. Gregory
University of Southern Maine Law School
§ 2.01 Meaning of Imprisonment
§2.02 Whittaker v. Sanford
§2.03 Law Court Opinion in Whittaker
§2.04 Lessons of Whittaker
§2.01 Meaning of Imprisonment
False imprisonment is a far subtler tort than assault and battery and trespass to land. On the difficult subject of false imprisonment the Maine Law Court has rendered a leading decision of national and lasting renown. That memorable decision, on which generations of first-year law students have been trained (although unfortunately in increasingly severely edited versions), a decision (can we say?) reaching to majestic proportions, is the great and misnamed Whittaker v. Sanford decided in 1912. Like venerable English decisions, Whittaker v. Sanford stands by itself as a seminal authority. The decision contains not one citation to precedent. On its singular record the whole case is so suffused with the essential meaning of false imprisonment that the Court's opinion well deserves the study it has received. Quite apart from its being a textbook case, students and practitioners of Maine Law should study the whole case with care because Whittaker v. Sanford is one of only three opinions of the Law Court on the meaning of the essential ingredient of false imprisonment.(2)
§2.02 Whittaker v. Sanford
The case began in a little-known Christian sect centered in a place to this day called Shiloh in Durham, Maine. Remnants of the believers can still be found, and a church adorned with a stunning golden crown on its steeple can yet be seen.(3) The plaintiff, Florence Whittaker, was a believer. The defendant, Frank Sandford, one-time baseball star at Bates College, was the movement's founder and leader, designated by Almighty God initially as the second Elijah "come to prepare the way for the coming of Christ" and later as King David, who "was to reign and rule in righteousness, and . . . all the earth was going to bow to him."(4) The real issue between the charismatic Sandford and the plaintiff Whittaker was whether she would be allowed to leave the flock, to demur to being among the first of the earth to bow to his will.
Whittaker and her children were at a mission outpost in the Holy Land "at Jaffa, in Syria,"s having been left to fend for herself by her husband, who had gone on a missionary voyage and had wound up back at Shiloh. She made up her mind to leave the movement and return to America by steamer. Despite her serious misgivings, the defendant Sandford persuaded her to return with him aboard the movement's sailing vessel, the Kingdom, by assuring her "repeatedly that under no circumstances would she be detained on board the vessel after they got into port, and that she should be free to do what she wanted to the moment they reached shore."(6) They sailed on December 28, 1909, and arrived in Portland harbor on Sunday, May 8, 1910, where her husband joined her. Then, accompanied by the vessel Coronet,(7) they sailed to South Freeport harbor, Tuesday morning, May 10. From that date, the defendant stayed on the Coronet while the plaintiff and her husband lived on the Kingdom (though," in case we were wondering they were not living in marital relations"(8).
"She went ashore with him. She visited neighboring islands with him. She was trying to persuade him to leave the movement and make a home for her and their children. He was trying to persuade her to become again a member of the movement. When on shore with him she made no effort to escape. She says she believed it would be useless, and thus went back to the yacht with him."(9)
The plaintiff later testified, and hence the jury would have been warranted in finding, that on two or three occasions the defendant personally refused to furnish her with a boat so that she could leave the kingdom, that when she wanted to go ashore, "they," evidently referring to the defendant and her husband, "had talked against it," that the defendant "had spoken plainly that it was out of the question," that when she spoke to him about it he said he would leave it to her husband to do what he wanted to, that he would not take the responsibility of separating families, but that when she asked her husband to take her ashore, he replied, 'We will see Mr. Sandford about it and see what he says." The plaintiff contended that in this way the defendant and her husband in effect played into each other's hands, and shifted the responsibility from one to the other, while she was the victim of this play of battledore and shuttlecock.(10)
Matters remained that way for not quite a month until June 6, 1911, when a sheriff collected the plaintiff and her children from the Kingdom on a writ of habeas corpus, returnable two days later, issued on order of a Justice of the Supreme Judicial Court. By a clerical error the writ failed to summon Mr. Sandford to appear and show cause. Because Mr. Sandford was on the Coronet and not the Kingdom, the writ was never served on him. After a hearing two days later, the plaintiff and her children were given their liberty by being discharged on order of the Court.
On October 21, 1911, praying for $5,000 damages, the plaintiff filed her action against the defendant Sandford false imprisonment." The case went to trial on April 11, 1912, and on April 12, assessing damages in the sum of $1,100, a jury returned a verdict for the plaintiff."
§ 2.03 Law Court Opinion in Whittaker
In those days review by the Law Court was activated by "exceptions" to a trial court's rulings on evidence and jury instructions and by a motion for a new trial. Whittaker v. Sanford is representative of most Law Court opinions of the time by being divided into separate discussions of exceptions and the standard motion.
The defendant excepted to three of the trial court's rulings: (1) admitting evidence of the habeas corpus proceeding, (2) admitting evidence of the defendant's religious power and authority aver his followers, and (3) refusing to instruct the jury that in order to recover the plaintiff must show actual physical force exerted by the defendant to restrain the plaintiff of her liberty. The motion questioned the sufficiency of the evidence when measured by the correct legal standards to sustain the verdict and challenged the assessment of damages.
Just a few months before Whittaker v. Sanford reached the Law Court, the Court had decided that discharging a person from confinement on a writ of habeas corpus was res judicata in a subsequent tort action to recover damages for false imprisonment when the person causing the confinement had been a participant in the habeas proceeding.(13)
The issue in the [habeas corpus proceeding] was the legality of [the petitioner's] detention in jail.... [A] discharge of a prisoner ... constitutes a determination that at the time he was improperly restrained....[J]udgment for the plaintiff in habeas corpus proceedings in which the person causing the arrest appeared and was heard is res judicata in an action by such plaintiff against such person for false imprisonment.(14)
The obvious difficulty in transposing that principle to Whittaker v. Sanford was that the defendant had been neither summoned nor served and did not appear in the habeas proceeding. In admitting the record of the habeas corpus proceeding, the trial court had carefully instructed the jury that the plaintiffs discharge on habeas corpus was "not a judicial determination of the question involved here" and that "[t]he defendant would not be bound by that adjudication."(15) The court told the jury, "You have a right, I say to you, for the purposes of this trial, to consider the fact that she did resort to this petition of habeas corpus to obtain her release ... as tending to show that she was restrained of her liberty."(16) On that basis the Law Court held that the record was admissible. "It had a tendency to show an improbability that the plaintiff was free to leave the yacht when she should choose."(17) Admitting the record of the habeas corpus proceeding was not an error. Her release on habeas corpus tended to negate the possibility of the plaintiffs having yielded, albeit reluctantly, to the wishes of her husband and the defendant of her own free will.
The defendant's second exception took issue with the trial court's having admitted evidence of the group's religious beliefs pertaining to the role of Mr. Sandford, the Elijah-King David business. It is pertinent to note that, as fate would have it, neither Mr. Sandford himself nor the question of his authority over his followers was a stranger to the Law Court. Just shy of eight years earlier the Court had reviewed Mr. Sandford's criminal conviction of common law manslaughter for causing the death of Leander Bartlett, a fifteen-year-old boy who was "in rebellion," by criminally neglecting to minister to his medical needs.(18) Because Sandford had not had immediate care of the boy, the state contended that he had exercised such control over those who were in attendance upon and caring for Bartlett, and that he dominated their wills to such an extent, that his orders were carried out in the treatment of Bartlett by those who were subservient to his will, and whose conduct, in this respect, as well as in all others, was subject to his control and authority.(19)
Thus, it was argued that their neglect was his. The Court sustained admitting evidence "for the purpose of showing . . . the nature and extent of the authority which the respondent possessed and exercised over the individual members of this community."(20) The Court vacated the conviction because the trial court, in the context of explaining that withholding medication would not constitute criminal neglect if based on a conscientious disbelief in the efficacy of medicine in favor of the power of prayer, had instructed the jury that the defendant could be convicted of manslaughter if the jury found that failing to pray had caused or hastened the boy's death.(21) Thus, the Court had already faced and prophetically decided the propriety of proving religious devotion of followers to a leader to establish causation (and hence legal responsibility) in a case against the same magnetic man. Therefore, Florence Whittaker's testimony on the defendant's claiming to be a new Elijah and David and his followers' so knowing him was admissible.
We think it is a fair inference that a person believed by his followers to possess the character thus attributed to the defendant would be very likely to obtain the power and influence over them, which it is claimed the defendant had. This is not a religious question, but a question of law. We are not concerned in this case with the beliefs of the defendant and those connected with him. We do not seek to impugn in the slightest degree the grounds of their beliefs. But, whether right or wrong, we think that it is clear that to the trusting and devout followers of such a leader, his influence, his will, his wish, might easily, and probably would, become paramount over their minds, and would control their actions. Besides, the question of the nature and extent of the defendant's control was made relevant by the defendant's contention that the captain and other officers of the yacht, and not the defendant, were in control of the small boats and that the control was practically independent of the defendant.(22)
While that passage looks like a simple ruling on relevance, its implications reach beyond admissible evidence. For, while responsibility for our own acts should normally be enough, insofar as our control extends clever others, so should our legal responsibility commensurately expand. Extending legal responsibility to acts of others on the basis of control under girds, for instance, our whole law of respondeat superior and reaches, as the court's decision in State v. Sandford proves, even to criminal liability. The ethical content of causation always resonates from control. Yet on the singular record of this case, the implications of the court's evidentiary ruling extend further still. The striking aspect of that ruling is that the theme of dominion and control of one person over another is common both to linking responsibility to cause and to establishing the central element of the tort of false imprisonment. The theme of dominion and control is common to both Florence Whittaker's proving that she was falsely imprisoned and her proving that she was falsely imprisoned at the hands of the defendant. That common theme is why we can say that the essential meaning of false imprisonment permeates the case. The defendant Sandford's culpability rests on dual, nearly identical footings: taking from the plaintiff her liberty through the medium of those who were the servants of his will.
The defendant's third exception was to the court's refusal to instruct the jury that "to maintain her action the plaintiff must show some actual physical force exercised by the defendant or by someone acting as his agent and by his authority to restrain her of her liberty."23 Unlike exceptions to admission of evidence, that exception directly addresses the governing legal standard, the definition of false imprisonment. It is first-year learning that laying hands on the victim or even offering to do so is not necessary to establishing false imprisonment (if it were necessary, a battery or assault would be committed, and we would have no need of a separate tort of false imprisonment) and that an actual show of physical force will not suffice to establish the tort in the absence of an imprisonment.(24) The Law Court replied in a famous passage:
Most of that passage has to be technically dictum, for the Court was required to rule only on the necessity of showing actual physical force. Four points, however, are worth pondering. First, the trial court's instruction that "restraint [must be] physical, and not merely a moral influence" was drawing a dichotomy between one's influencing another to conform her will to his, on the one hand, and one's imposing his will on another contrary to her own, on the other. That distinction, one of the great subtleties of the tort of false imprisonment, is recognized in other contexts as the difference between influence and so called undue influence, between persuasion and duress. Accordingly, the Law Court is not so much laying down as a rigid requirement of false imprisonment that restraint be physical as laying down a requirement that there be restraint. Both the trial court and the Law Court use the language of physical restraint to exclude situations where, as we all (except the most extraordinarily insensitive among us) do on occasion, one person yields to the desires of others. That can undoubtedly be a subtle distinction and equally undoubtedly is a crucial one. That distinction is what made the record of the plaintiffs release on habeas corpus relevant. The point to remark is that the Court's focus is on restraint vel non and not on the quality of restraint.
Second, nevertheless, the restraint with which the tort of false imprisonment is concerned is always, and inescapably must be, physical. False imprisonment is always manifested in conduct, in physical acts performed or forgone in movement or rest on the face of the earth by the victim. Physical movement or stability is the objective heart of the tort. If a plaintiff has done nothing or refrained from doing nothing, no false imprisonment can have occurred regardless of what the victim may have thought or how the victim may have felt. False imprisonment has to do with the victim's body.
Third, the essential element of the tort lies in the victim's movement or remaining at rest. In that respect false imprisonment is a world away from assault and battery and trespass to land in which the essential element of the tort always lies in the conduct of the tortfeasor.
Fourth and finally, the Court is concerned to exclude cases of pure nonfeasance as where a passerby refuses to provide a means of escape. Turning a key in a lock is truly a simple form of unlawful imprisonment. However, refusing to turn a key to unlock a door or similarly refusing the use of a boat is not unless a duty to provide an escape has some independent foundation such as where one has agreed that a guest on board a vessel shall be free to leave. That last point is further elucidated in the Court's treatment of the defendant's motion for a new trial.
Besides contesting the jury's valuation of damages, the defendant's motion for a new trial presented the issue of whether the evidence was sufficient to sustain the jury's verdict that the defendant had caused the plaintiff to be falsely imprisoned. The Court was concerned to address two main points. First, what the defendant was alleged to have done was not an act at all but a failure to act, namely, failing to provide a boat as a means of escape. Second, the plaintiffs husband bore the responsibility for her remaining aboard the Kingdom once the vessel reached the harbor. On the first point, the Court remarkably did not use the word nonfeasance, but the Court clearly had the distinction between acting and not acting foremost in mind. The Court said:
On why the role of the husband would not relieve the defendant of responsibility, the Court recurred to the theme of the defendant's dominant, overpowering will. In view of the Court's evidentiary ruling, the Court's conclusion was probably foregone:
Thus, one by one the Court rejected the defendant's contentions until it came to the question of damages. The Court's opinion and its mandate speak for themselves.
But the damages awarded seem to us manifestly excessive. The plaintiff, if imprisoned, was by no means in close confinement. She was afforded all the liberties of the yacht. She was taken on shore by her husband to do shopping and transact business at a bank. She visited neighboring islands with her husband and children, on one of which they enjoyed a family picnic. The case lacks the elements of humiliation and disgrace that frequently attend false imprisonment. She was respectfully treated as a guest in every way, except that she was restrained from quitting the yacht for good and all.
The Court's records state laconically, "On the seventy-third day of the term a remittitur is filed in accordance with the mandate of the Law Court."(29) Florence Whittaker relinquished her claim to the better part of the damages awarded to her by the jury.
§ 2.04 Lessons of Whittaker
Florence Whittaker's comings and goings for such business and pleasantries as shopping, banking, picnicking, and visiting the islands are the one aspect of Whittaker v. Sanford most troubling to young initiates. How can the plaintiff be said to have been imprisoned when, for all we know, she was allowed to come and go as she liked "except that," in the words of the Court, "she was restrained from quitting the yacht for good and all"? The idea of a person's retaining some degree of liberty while imprisoned would not have bothered our forebears(30) and should not bother us. You can be imprisoned and still be allowed out of your cell indeed even allowed out on work release or home visits. Imprisonment surely still exists. One Maine decision, Stevens v. Manson,(31) decided in 1895, touches on that point. A debtor who had been validly arrested by virtue of an execution twice invoked the process for release by submitting to an examination and taking a debtor's oath in disclosure: proceedings. In an action for false imprisonment the debtor contended that he had been released after the first proceeding and instantly rearrested. Giving judgment for the defendants, the Court held that the plaintiff-debtor had remained under arrest all along. The Court said:
The point of significance for us is that the plaintiff-debtor was under arrest, imprisoned in other words, the whole time even though he was allowed to go home when not appearing before the disclosure tribunal. Imprisonment requires neither the closest possible confinement nor deprivation of all aspects of human liberty.
1. Whittaker v. Sanford, 110 Me. 77, 85 A. 399 (1912).
2. The other two discussed below are Knowlton v. Ross, 114 Me. 18, 95 A. 281 (1915), and Stevens v. Manson, 87 Me. 436, 32 A. 1002 (1895).
3. On the history of the movement, see S. Nelson, FAlR CLEAR AND TERRIBLE: THE STORY OF SHILOH, MAINE (1989); J. Bannon, Social Order: What Four Maine Utapias Can Teach Us (1977) Olonors paper on file at Bowdoin College library).
4. Whittaker v. Sanford, 110 Me. 77, 83, 85 A. 399, 401-02 (1912).
5. Whittaker v. Sanford, 110 Me. 77, 78, 85 A. 399 (1912).
6. Whittaker v. Sanford, 110 Me. 77, 79, 85 A. 399, 400 (1912).
7. Admiringly described in all of her undeniable splendor in Murray, Coronet: Whither Away?, 32 WOODEN BOAT MAGAZINE 20 (Jan. 1980). The vessel is now docked in Gloucester, Massachusetts. [as of March, 1999 in Newport, R.I., Ed.]
8. Whittaker v. Sanford, 110 Me. 77, 87, 85 A. 399, 403 (1912).
9. Whittaker v. Sanford, 110 Me. 77, 87, 85 A. 399, 403 (1912).
10. Whittaker v. Sanford, 110 Me. 77, 82-83, 85 A. 399, 401 (1912).
11. See Supreme Judicial Court Records, vol. 105, at 709-11, in the Maine State Library in Augusta.
12. See Supreme Judicial Court Records, vol. 105;, at 709-11. In less than a month, on May 2, 1912, Florence Whittaker filed a libel for divorce against her husband, Almon A. Whittaker. See Supreme Judicial Court Records, vol. 105, at 767-69. See also id. at 633 (motion for temporary separate support and money to prosecute the libel denied).
13. Turgeon v. Bean, 109 Me. 189, 83 A. 557 (1912).
14. Turgeon v. Bean, 109 Me. 189, 194-95, 83 A. 557, 559 (1912). The Court's devotion to finality as "an elementary principle of high importance in the administration of justice" is demonstrated by the Court's having gone to great lengths to show that the rule of decision in the habeas proceeding, i.e., the legal standard applied by the habeas court to decide that the plaintiffs detention was illegal, was wrong. The question was whether a provision of the Bankruptcy Act of 1898 stating "A bankrupt shall be exempt from arrest upon civil process" rendered illegal the continued detention of a debtor who had been validly arrested before having been adjudicated a bankrupt. A federal district court in the habeas proceeding held that the statute did so operate. The Law Court said that it did not. But the Court held that the creditor, who had been served with notice and had participated in the habeas hearing, was bound by that adjudication. "Under these circumstances the question of illegal restraint is res judicata." Id. at 194, 195, 83 A. at 559.
15. Whittaker v. Sanford, 110 Me. 77, 80, 85 A. 399, 401 (1912).
16. Whittaker v. Sanford, 110 Me. 77, 80, 85 A. 399, 401 (1912).
17. Whittaker v. Sanford, 110 Me. 77, 82, 85 A. 399, 401 (1912).
18. State v. Sandford, 99 Me. 441, 59 A. 597 (1905).
19. State v. Sandford, 99 Me. 441, 488, 59 A. 597, 600 (1905).
20. State v. Sandford, 99 Me. 441, 448, 59 A. 597, 600 (1905).
21. State v. Sandford, 99 Me. 441, 449-52, 59 A. 597, 600-01 (1905). The Court did some reaching to bring that point within the defendant's preserved points on appeal. For a history of the case, see S. Nelson, FAIR CLEAR AND TERRIBLE: THE STORY OF SHILOH, MAINE 207-09, 227-42, 255-56 (1989) (the book is dedicated, "For Leander, who almost got away").
22. Whittaker v. Sanford, 110 Me. 77, 84, 85 A. 399, 402 (1912).
23. Whittaker v. Sanford, 110 Me. 77, 84-85, 85 A. 399, 402 (1912). That exception is entangled with another very curious point. The defendant argued that the declaration in the plaintiffs writ, i.e., what we would call the allegations of her complaint, "was in its effect a declaration for trespass to the person" and hence required a showing of actual physical force even though the plaintiffs writ was styled "a plea of the case." The Court said that "the defendant's assumption ... that the action in effect is trespass to the person is without warrant." 110 Me. at 84-85. We had always understood that false imprisonment was a form of trespass to the person. That is certainly the conventional wisdom. See, e.g., W. Keeton, D. Dobbs, R. Keeton & D. Owen, PROSSER AND KEETON ON THE LAW OF TORTS 38 (2d ed. 1984). Yet Whittaker v. Sanford is one of several old cases to plead false imprisonment as trespass on the case. See Dunsmore v. Pratt, 116 Me. 23, 99, A. 717 (1917); Kittredge v. Frothingham, 114 Me. 537, 96 A. 1063 (1916); Turgeon v. Bean, 109 Me. 189, 83 A. 557 (1912); Gross v. Rice, 71 Me. 241 (1880)Gee v. Patterson, 63 Me. 49 (1873). On the other hand, we know that false imprisonment looks very different from the classic cases of trespass, namely, assault and battery and trespass to land.
24. See Coleridge's hypothetical in Bird v. Jones, 7 A. & E. 742, 115 Eng. Rep. 668 (1845).
25. Whittaker v. Sandford, 110 Me. 77, 85, 85 A. 399, 402 (1912).
26. Whittaker v. Sanford, 110 Me. 77, 86, 85 A. 399, 402-03 (1912).
27. Whittaker v. Sanford, 110 Me. 77, 87, 85 A. 399, 403 (1912).
28. Whittaker v. Sanford, 110 Me. 77, 88, 85 A. 399, 403 (1912).
29. Supreme Judicial Court Records, vol. 105, at 711. At a trial of Florence Whittaker's libel for divorce, a jury rendered the following verdict: "The Jury find for the Libellant on the grounds of cruel and abusive treatment and non support." A decree dissolving her marriage to Almon A. Whittaker and giving her custody of their children was entered on November 4, 1912. See id. at 768-69.
30. On the difference between close confinement and extended jail liberties, see, e.g., United States v. Knight, 39 U.S. 301 (1840), an action by the government as execution creditor against imprisoned debtors on a bond that provided that the obligation of the bond would be void as long as they remained "within the limits of the jail-yard" in Portland, Maine, and otherwise the obligation would remain in full force. "Jail-yard" had been defined by the proper Cumberland County authority in 1787 to include residential blocks in Portland including the houses on both sides of the boundary streets, not to mention an adjacent intertidal zone down to the low-water mark. That definition was extended in 1798 to include "limits of the town of Portland, exclusive of the islands" and further extended in 1822 to encompass the entire county. As long as debtors who had liberty of the yard remained within those limits, they were quite clearly imprisoned and had not escaped and so had not breached the condition of their bond.
31. Stevens v. Manson, 87 Me. 436, 32 A. 1002 (1895).
32. Stevens v. Manson, 87 Me. 436, 440, 32 A. 1002, 1003 (1895).
ME TORT LAW Issue O (1994)