Marr v. Rife

• Decision Date: 26 September 1974
• Docket Number: No. 73-1285,73-1285
• Citation: 503 F.2d 735
• Parties: John W. MARR and Lucille Marr, Appellants, v. Douglas RIFE et al., Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 735

503 F.2d 735

John W. MARR and Lucille Marr, Appellants, v. Douglas RIFE et al., Appellees.

No. 73-1285.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 16, 1973.

Decided Sept. 26, 1974.

Denis J. Murphy, Patchen, Murphy & Allison, Columbus, Ohio, for appellants; Nathaniel R. Jones, James I. Meyerson, N.A.A.C.P., New York City, Denis J. Murphy, Columbus, Ohio, on brief; James J. Kozelek, Columbus, Ohio of counsel.

John E. Holzapfel, Smith, Clark & Holzapfel, Columbus, Ohio, for appellees; Charles T. Kaps, Columbus, Ohio, on brief.

J. Stanley Pottinger, Asst. Atty. Gen., Frank E. Schwelb, Elyse S. Goldweber, Attys., U.S. Dept. of Justice, Washington, D.C., William W. Milligan, U.S. Atty., Columbus, Ohio, on brief for U.S. amicus curiae.

Before PHILLIPS, Chief Judge, WEICK, Circuit Judge, and O'SULLIVAN, Senior Circuit Judge.

O'SULLIVAN, Senior Circuit Judge.

Plaintiffs appeal from a decision of the District Court wherein three of four named defendants were found not to have violated the Civil Rights Act of 1866, 42 U.S.C. 1982, and the Fair Housing Act of 1968, 42 U.S.C. 3601-3612. Trial was had to a United States District Judge for the Southern District of Ohio. Judgment was entered only against defendant-appellee Joseph Arntz.

Plaintiffs-Appellants, John and Lucille Marr, are black residents of Columbus, Ohio. During the period from approximately January 12, 1970, until February 12, 1970, they were negotiating for the purchase of a home which was being offered for sale by the Doug Rife Realtor Agency of Columbus. The dwelling involved was identified as 124 South Southampton, Columbus, located in what had been a predominantly white neighborhood. Between the above dates, the Marrs dealt with various sales agents employed by the Rife Realtors, including Joseph Arntz, Lloyd Simmons, and Ruth Barclay. Appellants assert that during negotiations these agents violated the above statutes, and that Douglas Rife, proprietor of the agency, should be made liable for the conduct of his employees.

In addition to the instant suit, appellants also initiated action through the Ohio Civil Rights Commission and the Housing Opportunity Center in Columbus. The latter organization arranged for various Caucasians, posing as prospective purchasers, to test whether the Rife employees were in fact engaging in illegal discriminatory practices, frustrating appellants' desire to acquire the above-mentioned property.

Plaintiffs' Appendix and other papers available to us disclose that from about January 12, 1970, to February 7, 1970, the Marrs, aided by representatives of the Columbus Housing Opportunity Center, exhibited interest in the purchase of a house at 124 South Southampton in Columbus. It was not, however, until February 10, 1970, that the Marrs made an offer to buy the premises at the owner's asking price of $21,500. Prior to that date they had made an offer of $20,900 which was submitted by an agent of Rife Realtors, but was not accepted by the owner. On February 10, 1970, the Marrs signed an offer to buy the property at the asking price of $21,500. The Doug Rife Agency promptly submitted this to the owner who accepted it on February 12, 1970. The processing of this offer and completion of the transaction were carried on by agents of Rife Realtors, and delivery of the closing deed was made on April 30, 1970. We are not told just when the Marrs moved into the house. Mrs. Marr said they began their residence in the property about two and one-half years prior to trial of this lawsuit, which commenced on September 14, 1972. This would indicate that they moved in about the date when the deed was delivered in April of 1970.

Of the four defendants-- Douglas Rife, Lloyd Simmons, Joseph Arntz and Ruth Barclay-- the District Judge gave judgment only against Joseph Arntz, dismissing the action against the others. As to Arntz, the judgment awarded plaintiffs,

'the sum of One Dollar ($1.00) compensatory damages, Two Hundred Fifty Dollars ($250.00) punitive damages and costs in the amount of $109.78.'

The owner of the premises prior to the sale to appellants was William R. Gibbon. On or about January 19, 1970, the Rife Agency received an offer of one Robert J. Kramer to purchase the premises. Gibbon accepted the offer, but the sale was not carried out because of Kramer's inability to obtain the needed financing. While there is some uncertainty as to when this sale fell through, from his consideration of the evidence, the District Judge concluded that between January 19 and February 5, 1970, the property in question was not available for purchase. He went on to say that representations made by employees of the Rife Agency to checkers for the Housing Opportunity Center, who were assisting the Marrs, were consistent, to wit: 'the property was under contract.' He further found that 'defendants did not know at that time that plaintiffs were black or that Learner and Jones (the checkers) were white.' There was evidence, however, from which such knowledge could be inferred, depending upon resolution of credibility issues.

There was conflicting evidence, however, as to whether one or more of defendants falsely represented to the appellants that the property was under contract when they knew that it was available. There was also some evidence from which the District Judge could have found that one or more of the defendants, Arntz, Simmons or Barclay had expressed a view that they were opposed to selling the involved house to blacks, and that these defendants had attempted to frustrate the efforts of the Marrs and the checkers assisting them to purchase the house because of their knowledge that the Marrs were black.

In their address to us appellants set out the following questions for review:

'1. Whether the Court below committed reversible error in finding that, as a matter of fact, appellees Simmons and Arntz did not know during the middle of January, 1970, that the appellants were black. '2. Whether the Court below committed reversible error in concluding that a call to appellee Arntz was not initiated by a Columbus newspaper ad on the 5th of February. '3. Whether the Court below committed reversible error in holding that the appellants failed to establish by a clear preponderance of the evidence that appellee Simmons committed actions proscribed by the Fair Housing Act of 1968. '4. Whether the Court below committed reversible error in holding that the appellants failed to establish by a clear preponderance of the evidence that appellee Barclay committed actions proscribed by the Fair Housing Act of 1968. '5. Whether the Court below committed reversible error in holding that the appellants failed to establish by a clear preponderance of the evidence that appellee Rife Committed actions proscribed by the Fair Housing Act of 1968; and in refusing to apply the doctrine of respondent superior as to appellee Rife. '6. Whether the Court below committed reversible error in awarding only one dollar ($1.00) compensatory damages. '7. Whether the Court below committed reversible error in failing to award to the appellants reasonable attorney fees and in only awarding to them one hundred and nine dollars ($109) in costs.'

We also have before us a brief for the United States as Amicus Curiae, partially supporting the appellants, and presenting the following questions:

'1. Whether the Court below erred in refusing to award plaintiffs compensatory damages. '2. Whether the Court below erred in refusing to award plaintiffs reasonable attorneys fees. '3. Whether the Court below erred in failing to impute to Rife the diseriminatory conduct of Arntz.'

We have reviewed the attack on the District Judge's Findings of Fact, examining for that purpose the contents of the Appendix to Brief of Appellants. This appendix is but a photo-offset reproduction of the entire transcript. Much of it is of little relevancy to the issues raised on appeal. From our examination of it, we are satisfied that the District Court did not err in finding that Lloyd Simmons, Ruth Barclay and Douglas Rife personally engaged in no discriminatory conduct violative of the statutes set out above. We affirm the District Judge's exoneration of defendants Simmons and Barclay. We conclude, however, that it is necessary to rule on the following contentions of the appellants: that the District Judge erred in holding that plaintiffs had the burden of proving their case by a preponderance of the evidence; that the award of compensatory damages and costs was inadequate; that plaintiffs should have been awarded reasonable attorney fees; and that defendant Rife should have been made liable for the conduct of his agent, Arntz, upon the doctrine of respondeat superior.

I. Burden of Proof.

Appellants argue that the District Judge, in considering factual issues, was required to hold that appellants' proofs had made out a prima facie case and that the defendants thereafter had the burden to overcome such prima facie case with clear and convincing evidence. As support for this, appellants cite various cases dealing with employment discrimination, e.g., Baker v. Columbus Municipal Separate School District, 329 F.Supp. 706, 720 (N.D.Miss.1971), aff'd, 462 F.2d 1112 (5th Cir. 1972); Armstead v. Starkville Municipal Separate School District, 325 F.Supp. 560 (N.D.Miss.1971); rev'd on other grounds, 461 F.2d 276 (5th Cir. 1972); Chambers v. Hendersonville City Board of Education, 364 F.2d 189 (4th Cir. 1966), where the courts required defendants to show the absence of racial motivation by clear and convincing evidence.

In opposing appellants' argument, appellees rely in part on the case of Hamilton v. Miller, 477 F.2d 908 (10th Cir. 1973), involving the Fair Housing Act. The Court there said:

'We are urged to hold that the defendant should have the burden of establishing his defense through clear and convincing evidence. We are not so persuaded. It is true, of course, that...