Brabham v. State of Mississippi

• Decision Date: 19 April 1938
• Docket Number: No. 8671.,8671.
• Citation: 96 F.2d 210
• Parties: BRABHAM, Sheriff, et al., v. STATE OF MISSISSIPPI, for Use of SMITH et al.
• Court: U.S. Court of Appeals — Fifth Circuit

96 F.2d 210 (1938)

BRABHAM, Sheriff, et al., v. STATE OF MISSISSIPPI, for Use of SMITH et al.^*

No. 8671.

Circuit Court of Appeals, Fifth Circuit.

April 19, 1938.

Earl Brewer, of Jackson, Miss., and O. W. Phillips, of Magnolia, Miss., for appellant.

James N. Ogden, of Magnolia, Miss., and Myron S. McNeil, of Hazlehurst, Miss., for appellee.

Before SIBLEY, HUTCHESON, and HOLMES, Circuit Judges.

HUTCHESON, Circuit Judge.

The suit was brought against the sheriff and two deputies, to recover damages alleged to have been inflicted upon plaintiff, a minor. The claim was that while acting as the sheriff's deputies, and within the scope of their duties as such, Varnado, as actor, and Cutrer, standing by as aider and abettor, had wrongfully, cruelly, and oppressively beaten plaintiff, a fifteen year old boy, and that the sheriff and deputies alike were liable in damages, compensatory and punitive.

Defendants first moved to dismiss, for want of the requisite diversity of citizenship, upon the ground that the minor, plaintiff, was a citizen of Mississippi. This motion overruled after a full hearing, the defendant Brabham separately, and the defendants Cutrer and Varnado jointly, filed a plea of the general issue. Thereupon the case came on for trial before the judge and a jury, and evidence was offered which, if believed, fully sustained plaintiff's claim that his injuries were wantonly and recklessly inflicted. Motions to direct verdicts as to each defendant were overruled; defendant Brabham's requested instruction that he could not be held in punitive damages was refused. His objection to the general charge, that if the jury found the deputy liable in punitive damages, they should find the sheriff liable too, was overruled. The cause, sent to the jury on a general charge, resulted in a verdict and judgment exonerating Cutrer, and against Brabham and Varnado for $15,000.

These two defendants filed a vigorous motion for a new trial, among the grounds of which were: (1) That the verdict and judgment was excessive; (2) that the instructions generally, and especially with regard to the recovery of compensatory and punitive damages, were confusing and misleading; (3) that the charge of the court submitting, and the verdict of the jury finding, punitive damages as to Brabham was fundamentally erroneous; (4) supported by affidavits of jurors, that the jury in their retirement unlawfully discussed and were influenced by prejudicial and extraneous matters, to wit, the obligation of the surety company on the sheriff's bond to pay $10,000; (5) that defendants have discovered new and material evidence which they did not know, and could not find out upon the former trial. This motion being fully heard on evidence and affidavits, and taken under advisement, the court concluding that it had committed no prejudicial error in the conduct of the trial, but that the verdict was so grossly excessive as to really amount to an injustice, ordered that unless the plaintiff entered a remittitur of $5,000 within ten days, the motion for new trial should be sustained, on the ground of an unjustly excessive verdict.

In the course of his opinion the judge declared: "I, of course, realize that it should be a rare case when the Judge interferes with the verdict of the jury, and that the Judge should never displace the judgment of the jury upon a question of damages unless he is of the opinion that it is so grossly excessive as to really amount to an injustice, and particularly is this rule applicable when punitive damages are allowable. But even in the allowance of punitive damages it was never intended that the punishment to the offender by verdict for damages should be so unreasonable as to amount to an injustice, and in this character of case it is not only the right of the Judge, but it is his duty, to see that a verdict in amount oppressive should not be permitted to stand. Following this rule, I am constrained to require a remittitur down to $10,000.00 and if the plaintiff will enter the remittitur within ten days, the motion for a new trial will be overruled."

This appeal tests whether there was error in the conduct of the trial before the verdict, and whether, after the verdict, there was an abuse of discretion in overruling the motion for a new trial.

We have given careful consideration to the errors assigned. We agree with the trial judge that diversity of citizenship was present. We think this is so whether the cause be regarded as defendants in their motion to dismiss viewed it, as a suit by the minor by next friend, or as in their motion for new trial they declared, and as the judge in directing the judgment ruled, it was, as a suit by the father of the minor in his representative capacity. If it be regarded as the minor's suit, the evidence amply sustains the finding of diverse citizenship. If it be regarded as a suit by the father in his representative capacity, it is quite plain that such representative is authorized by the Mississippi statutes to sue, and that failure to comply with the precise requirements of those statutes may be, and was, waived. Fort Fairfield Nash Co. v. Noltemier, 135 Me. 84, 189 A. 415, 108 A.L.R. 1276.

As to Varnado, we agree with the District Judge, too, that the conduct of the trial on the merits, up to the verdict, was without error of which defendants can complain. The only exception he took was to the order overruling his wholly unfounded separate motion. But for his own highly improbable evidence that, armed as he was, with a pistol and a blackjack, and supported by the presence of another officer, he was in such fear of plaintiff that he struck the youth down, either with his pistol or his blackjack, the jury should have been directed to find against him. There is therefore no ground to seriously contend for the instruction that he asked.

As to his request for an instructed verdict, Brabham stands in no better condition. Though the evidence did not make out a case for an instructed verdict for the plaintiff, it certainly entitled him to go to the jury. The only other exception Brabham took was to the charge given and that refused, upon the issue of his liability for punitive damages.

The District Judge, in overruling this ground of the motion for a new trial, put his finger precisely on the reason why there was reversible error here. He said: "With reference to the charge on punitive damages, will say that in my judgment the sheriff ratified the acts of the deputies, and it was upon this theory that the Court originally gave the charge that punitive damages could be allowed. * * * I am therefore clearly of the opinion that there was a ratification of the conduct of the deputies."

In thus settling the issue of ratification against...