Fisher v. City of Miami

• Decision Date: 28 January 1964
• Docket Number: No. 63-189,63-189
• Citation: 160 So.2d 57
• Parties: Thomas E. FISHER, Appellant, v. The CITY OF MIAMI, a municipal corporation, Thomas Marshall, and William Jackson, Appellees.
• Court: Florida District Court of Appeals

Page 57

160 So.2d 57

Thomas E. FISHER, Appellant, v. The CITY OF MIAMI, a municipal corporation, Thomas Marshall, and William Jackson, Appellees.

No. 63-189.

District Court of Appeal of Florida, Third District.

Jan. 28, 1964.

Rehearing Denied Feb. 13, 1964.

Frates, Fay & Floyd and Kermit G. Kindred, Miami, for appellant.

John R. Barrett, City Atty., and John S. Lloyd, Asst. City Atty., for City of Miami.

William Jackson, Donald Wheeler Jones, for Thomas Marshall.

Before CARROLL, TILLMAN PEARSON and HENDRY, JJ.

TILLMAN PEARSON, Judge.

The point upon appeal which we will discuss is the liability of a municipal corporation for punitive damages. This question arose in an action for personal injuries claimed as the result of acts which a jury may find to have been an intentional and willful beating of the plaintiff as an incident of his arrest by a police officer of the City of Miami.

A brief history of the case is necessary to our decision. The complaint alleged facts sufficient to state the cause of action and claimed both compensatory and punitive damages. The City's motion to strike the prayer for punitive damages was granted. Thereafter, the court entered a summary final judgment for the City. This judgment was based upon the pleadings and plaintiff's testimony on deposition that the injuries were intentionally inflicted.

It is apparent that the summary final judgment was based upon the City's contention that it was not liable for the intentional torts of its police officers, even though these torts might have been committed within the scope of the officer's employment. At the time that the trial judge entered the summary judgment, this Court had not decided the case of Simpson v. City of Miami, Fla.App.1963, 155 So.2d 829 which holds that a city may be liable for the intentional torts of its police officers. The summary final judgment must be reversed upon authority of that case.

Having determined that this case must be remanded for further proceedings, it is necessary for us to decide the question raised by the granting of the City's motion to strike the claim of punitive damages against it, because we may thus avoid the need for another appeal. See Pace v. King, Fla.1949, 38 So.2d 823.

There is no contention and nothing in this record to indicate that the facts as alleged and as related in plaintiff's deposition do not come within the purview of those cases where punitive damages are ordinarily allowed in Florida. Therefore, we need not bring the facts forward other than to say that they appear to be sufficient, if proved, to support such a verdict. The issue is one of law: Are punitive damages recoverable from municipal corporations as from private corporations?

It has been determined in Florida that private corporations as well as individuals are subject to punitive damages in a proper case. Winn & Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214, 221. It should also be noted that punitive damages are not recoverable as a matter of right, even in a case where proper, but are awarded in the discretion of the trier of fact. Florida East Coast Ry. Co. v. McRoberts, 111 Fla. 278, 149 So. 631, 632; 94 A. L. R. 376.

It is basic to our inquiry that we should first determine whether the question we propose to answer has been decided in this State. In 1940 the Supreme Court of Florida in City of Miami v. McCorkle, 145 Fla. 109, 199 so. 575, 577, held:

'* * * that when the officers or employees of a municipality in disregard of the rights of the public so negligently and carelessly operate automotive driven fire-fighting apparatus on the public streets as to endanger persons traveling upon the streets and do thereby injure persons lawfully traveling upon the streets, that the municipality will be held to the same degree of liability as would an individual committing the same wrong and injury.'

At the time of the holding, the law of this State was that a municipality was immune from liability for the torts of its police officers. See Hargrove v. Town of Cocoa Beach, Fla.1957, 96 So.2d 130, 60 A.L.R.2d 1193. Therefore, it can be said that the holding in the McCorkle case did not contemplate a holding that a municipality would be held to the same degree of liability for the intentional torts of its police officers, as would an individual. Nevertheless, this holding is persuasive because the same reasoning which supported liability in that case would support liability in this case. We take that reasoning to be that once the barrier of municipal immunity from suit is breached then municipal liability should be governed by the same rule of respondeat superior applicable to any other corporation.

The broadening of the basis for damages against municipal corporations does raise questions of public policy. The reason most often advanced for a holding that municipal corporations are not liable for punitive damages is that to permit such damages against a public corporation is to contravene public policy since the parties who must bear the burden of the punishment are the taxpayers and citizens who constitute the very persons who as a group are to benefit from the public example which the granting of such damages is supposed to make of a wrongdoer. ¹ See cases collected in Annotation, 19 A.L.R.2d 903, 910 (1951).

Since the judicial determination of municipal liability for the negligence and intentional torts of its servants was rendered some twenty years after the holding in the McCorkle case, supra, a further examination of the subject is appropriate.

In 1882 the Supreme Court of Florida first took up the question of punitive damages in the case of Smith v. Bagwell, 19 Fla. 117, 121, 45 Am.Rep. 12. The description of the term has often been quoted:

'Compensatory damages are such as arise from actual and indirect pecuniary loss, mental suffering, value of time, actual expenses, and to these may be added bodily pain and suffering. Exemplary, vindictive or punitory damages are such as blend together the interests of society and of the aggrieved individual, and are not only a recompense to the sufferer but a punishment to the offender and an example to the community.'

This statement has been followed by many cases which point out that punitive damages are allowed solely as punishment and in the public interest as a deterrent to others inclined to commit a similar offense, but not as compensation to a plaintiff. ²

In speaking of public policy as related to the specific problem of the wisdom of assessing such damages against a body politic, there is a great distinction between the allowance against a city and the allowance against the officer who is the active tort-feasor. It is clear that the officer may be liable. See Hutchinson v. Lott, Fla.App.1959, 110 So.2d 442.

The majority view in the United States is that in the absence of statutory authority, there is no right recover punitive damages against a city. See cases collected in 38 Am.Jur., Municipal Corporations § 663, nn. 14 & 15 (1941); 63 C.J.S. Municipal Corporations § 947 n. 9 (1950); Annotation, 19 A.L.R.2d 903 (1951).

More important than the statistical analysis of majority and minority views is the reasoning involved in determining the correct view. We have mentioned that the penalty to the taxpayers may be regarded as unjust. Other courts have expressed the view that a municipal corporation cannot, as such, do a wilful and malicious wrong. See cases cited in 38 Am.Jur., Municipal Corporations § 663, n. 14 (1941).

The most telling argument against the allowance of such damages against a municipal corporation is, in our view, the fact that it penalizes the public in order to accomplish nothing. Can it be said that those responsible for the conduct of the public business will be either more able or more likely to punish the actual wrongdoers because the verdict is more than is necessary to compensate the injured person?

As an illustration of the argument, we mention the total inapplicability of one factor which goes into the assessment of punitive damages. It is recognized that in order to punish properly by punitive damages the jury may receive evidence of the financial status of the defendant. See Maiborne v. Kuntz, Fla.1952, 56 So.2d 720. If a verdict of $1,000 against a man with a small amount of property or against a man who earns his living 'by the sweat of his brow' may be severe punishment, what shall the verdict be against the body politic with its enormous and well-exercised right to tax us all?

We decry any act of unnecessary, intentional violence on the part of a public officer; but we feel it imperative to hold that punitive damages cannot be assessed against a municipal corporation.

The judgment is reversed and the cause remanded for further proceedings in accordance with the views expressed.

Reversed and remanded.

CAR...