Roberts v. Pierce
| Citation | 398 F.2d 954 |
| Decision Date | 22 July 1968 |
| Docket Number | No. 24581.,24581. |
| Parties | Alton Wayne ROBERTS, Appellant, v. Laurens PIERCE et al., Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
R. Dan Coit, Joe R. Odom, Meridian, Miss., for appellant.
Thomas D. Bourdeaux, Meridian, Miss., for appellees.
Before GEWIN and COLEMAN, Circuit Judges, and HUGHES, District Judge.
This is a diversity suit filed by Alton Wayne Roberts against Laurens Pierce and Columbia Broadcasting System, Inc., for assault and battery, alleged to have been committed on Roberts by Pierce in the course of his employment with CBS. After a hung jury necessitated the declaration of a mistrial, the district judge entered a judgment for the defendants. We reverse.
Pierce is a news cameraman for CBS who, on January 27, 1965, was engaged in covering a hearing held in connection with indictments returned against Roberts and a number of other people at the Federal Building in Meridian, Mississippi.
At the noon recess, Roberts, along with his co-indictees, left the building, and as they did so they were photographed by Pierce and the other cameramen. An altercation developed between Pierce and one of the co-indictees. The eyewitness testimony regarding the events which followed is distressingly conflicting.
Roberts' testimony and that of his witnesses tend to establish his contention that during the altercation, Pierce pulled a "club", began swinging it, and hit, or almost hit, an onlooker standing with a small child near Roberts; that Pierce swung the stick at Roberts, and the latter threw up his hands to avoid the blow; that Roberts was struck at least four blows, during which time he merely attempted to defend himself.
Pierce's witnesses tend to establish his contention that one of the co-indictees initiated the commotion by putting his hand on Pierce's camera and giving it a shove; that each of four co-indictees, but not Roberts, proceeded to pummel him while he attempted to protect himself with his fists; that Pierce then retreated a short distance from the scene; that while he was standing there with his hands at his sides Roberts delivered him a body blow; that Pierce attempted to defend himself with a wooden handle he used to hold his camera; that he landed some blows on Roberts but that Roberts knocked him down after hitting and kicking him.
Pierce and CBS introduced a motion picture film into evidence which they contend depicts the entire incident. Roberts vigorously contends that the film portrays only a part of it. The photographer who made the film, an employee of a New Orleans television station affiliated with the NBC network, testified that he photographed the entire affray.
At the conclusion of the presentation of plaintiff Roberts' evidence, defendants, Pierce and CBS, filed motions for directed verdicts which were overruled. At the conclusion of all of the evidence defendants submitted to the trial judge their requested instructions Nos. 11 through 15 with the comment "we hand the Marshal instructions number 11 through 15 which Your Honor had previously considered and refused." Instructions Nos. 11 and 12, consisted of directions to the jury not to enter verdicts for plaintiff against either defendant. The trial judge stated in open court after his oral charge was delivered:
The jury retired but could not reach a verdict, and a mistrial was declared. Defendants filed a motion styled "Defendants' Motion for Judgment in Accordance with Previous Motion for a Directed Verdict." The trial judge's opinion confirms that he treated it as a motion for judgment n. o. v. under Rule 50 F.R.Civ.P. The motion was granted after hearing, and judgment was entered for the defendants.
Appellant Roberts urges the following specifications of error:
In view of our decision to reverse, the first point will only be discussed briefly.
Rule 50(b) F.R.C.P. provides in part as follows:
It is our opinion that the defendants' formal request that the jury be instructed to direct a verdict in their favor fulfills the requirements of Rule 50(b) for a motion. Appellant Roberts cites no cases which even suggest a contrary view.
In regard to the second point, it is our opinion that a jury question is presented by the evidence and the trial judge should not have granted the motion of defendants for judgment.
In making our decision on this point, it is necessary to ascertain first whether the state or federal test is to be applied in determining the sufficiency of the evidence to raise a question of fact for the jury. While the Supreme Court has not yet settled the conflict which exists among the courts of appeals, this court's position is clear that federal courts must apply a federal test.1
On several occasions this court has enunciated the principle that where there is a conflict in the evidence the case must be submitted to the jury. One of the early cases is Danko v. Levy, 149 F.2d 66 (5th Cir. 1945), in which it was held that the trial court erred in granting a motion for judgment notwithstanding the verdict where there was substantial evidence to sustain the jury's verdict.
Recent decisions of this court have followed the same rule.
To continue reading
Request your trial
-
Dunn v. Koehring Co.
...such gross disregard for the rights of the complaining party as to amount to willfulness on the part of the wrongdoer." Roberts v. Pierce, 398 F.2d 954, 957 (C.A.5, 1968); Lee v. Southern Home Sites Corp., 429 F.2d 290 (C.A.5, 1970); Atkinson v. Dixie Greyhound Lines, 143 F.2d 477 (C.A.5.),......
-
Gilpin v. Kansas State High School Activities Ass'n, Inc.
...they may be imposed if a defendant has acted wilfully and in gross disregard for the rights of the complaining party. Roberts v. Pierce, 398 F.2d 954 (5th Cir. 1968). Since such damages are punitory and are assessed as an example and warning to others, they are not a favorite in law and are......
-
Hyde Construction Co., Inc. v. Koehring Company
...that we exercise discretion to award exemplary damages against Koehring, as punishment for wanton and willful misconduct. Roberts v. Pierce, 398 F.2d 954 (5 Cir. 1968); Mid-Continent Telephone Corp. v. Home Telephone Co., 319 F.Supp. 1176, 1200 (N.D.Miss.1970). For although the courts of th......
-
United States v. Buras
...can now answer this interrogatory. I am aware of the United States Court of Appeals for the Fifth Circuit's opinion in Roberts v. Pierce, 398 F.2d 954 (5th Cir. 1968), reversing a trial judge who directed a verdict after a jury's failure to agree had resulted in a mistrial. There the court ......