Gill v. Manuel, 71-2555.

• Decision Date: 09 November 1973
• Docket Number: No. 71-2555.,71-2555.
• Citation: 488 F.2d 799
• Parties: Donald T. GILL and Marie Gill, Plaintiffs-Appellants, v. Deputy Sheriff Charles MANUEL et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

488 F.2d 799 (1973)

Donald T. GILL and Marie Gill, Plaintiffs-Appellants, v. Deputy Sheriff Charles MANUEL et al., Defendants-Appellees.

No. 71-2555.

United States Court of Appeals, Ninth Circuit.

November 9, 1973.

John Francis Carroll (argued), Wilmington, Cal., for plaintiffs-appellants.

Michael H. Dougherty (argued), Deputy County Counsel, Los Angeles, Cal., for defendants-appellees.

Before BROWNING and HUFSTEDLER, Circuit Judges, and TAYLOR,^* District Judge.

PER CURIAM:

This is an appeal from the final judgment made and entered, after a jury trial, in favor of defendants-appellees, Deputy Sheriffs Charles Manuel and Michael Currin, and against the plaintiffs-appellants, Donald Gill and Marie Gill, husband and wife. The Gills brought this action to redress the alleged deprivation of their civil rights secured to them under Title 42 U.S.C., § 1983.

A brief synopsis of the facts is that at or about 9:30 PM on October 19, 1970, Deputy Sheriffs Manuel and Currin, wearing plainclothes, arrived at the Gill residence in an unmarked sheriff's car to arrest Donald Gill on a misdemeanor warrant. The facts as to what happened when they attempted to serve the warrant are in complete conflict. The appellants claim they were awakened by intruders, abused and threatened, and that Donald Gill received a severe beating. The appellees contend they used only necessary and reasonable force to subdue the 128 pound Donald Gill under the circumstances.

Appellants have assigned numerous errors, only three of which merit discussion for the purposes of this opinion. First, it is alleged that the trial court erred in not instructing the jury on the issue of punitive damages.

During the trial, Mrs. Gill testified that she observed two men standing over her husband, beating him while he lay on the floor of their small living room. She then observed Deputy Currin pick her husband up and throw him into the bathroom where she witnessed the appellees beat her husband as he lay on the floor. She also testified that her husband was handcuffed while in the bathroom and then thrown outside the house. Mr. Gill also testified to this alleged beating. The record reveals the presence of blood in the small living room and all over the bathroom. Mr. Gill's physical condition, immediately after being arrested, attests to the fact that he did receive severe injuries as a result of his altercation with the appellees. Although the testimony of appellees refutes some of the facts recited above by the Gills, the final determination of whether punitive damages should be awarded has to be left to the discretion of the trier of fact. See Lee v. Southern Home Sites Corporation, 429 F.2d 290, 294 (5th Cir. 1970), wherein it is stated:

"The allowance of such damages referring to punitive damages inherently involves an evaluation of the nature of the conduct in question, the wisdom of some form of pecuniary punishment, and the advisability of a deterrent. Therefore, the infliction of such damages, and the amount thereof when inflicted, are of necessity within the discretion of the trier of the fact."

The trial court refused to give the appellants' requested punitive damages instruction on the theory that "there has to be a personal animosity or involvement to get the malice required for punitive damages. Just a mere professional overreaction is not sufficient." (R.T. page 661)

While we agree with the trial judge that a showing of a personal animosity or involvement between the parties may present a stronger case for the awarding of punitive damages, we do not agree that it is a prerequisite to instructing the jury as to punitive damages or to the granting of such damages. An instruction on punitive damages is appropriate when the facts are such that the jury could find the action and conduct of police officers to be willful and malicious apart from any showing of personal animosity between the parties. See generally 14 A.L.R.Fed 608, Civil Rights Acts — Punitive Damages. The testimony presented by the Gills contains the factual basis from which the jury could have found the malice required for the awarding of punitive damages if they found the witnesses to be credible. The questions in regard to the credibility of the witnesses and the determination of whether the facts presented were sufficient for an award of punitive damages are issues reserved for determination by the trier of fact. See Lee, supra.

Appellants also contend that the trial court's repeated instructions to the jury, in regard to appellants' claim for punitive damages not being an issue in the case, prejudiced the appellants and misled the jury.

The record reflects that on three separate and distinct occasions, during the court's instructions to the jury, reference was made to punitive damages. The court's first such reference was as follows:

"Now it is further alleged that Plaintiff Gill further alleges that he is entitled to some punitive and exemplary damages. But the Court has held outside the hearing of the jury that this issue is out of the case and you may not consider oral or any punitive or exemplary damages in addition to any actual — you may not award any punitive — you may not even consider any punitive or exemplary damages in addition to any actual or compensatory damages claimed by the plaintiff, if you should find that he is so entitled to any such actual and compensatory damages." R.T. pages 729-730

Later, the court again instructed the jury concerning punitive damages:

"And they also deny that plaintiffs are entitled to any punitive — as I say, punitive or exemplary damages, but now as I have said, that is not an issue. Punitive or exemplary damages is not an issue. You are not to consider it any way and you are not, of course, to award any punitive or exemplary damages." R.T. page 733

The trial court's third reference to punitive damages occurred near the close of the instructions:

"Now if you find the defendants are liable, then you must assess what damages are plaintiffs entitled to recover.

Nothing which I have indicated to you — only actual or compensatory damages are permissible. No punitive damages." R.T. page 747

This court is in agreement with the rule announced in Flentie v. American Community Stores Corporation, 389 F.2d 80, 83 (8th Cir. 1968): "Repetitious instructions which place undue emphasis on matters favorable to either side constitute reversible error."

Since the trial court decided not to instruct the jury on the issue of punitive damages, the repeated emphasis in regard to that matter by the court gave undue prominence to the court's feeling of liability and could have easily minimized the effect of the court's instructions concerning compensatory damages. See White Auto Stores v. Reyes, 223 F.2d 298, 305 (10th Cir. 1955) and Halladay v. Verschoor, 381 F.2d 100, 113 (8th Cir. 1967).

It is the appellees'...