Roche v. Egan

• Decision Date: 12 August 1981
• Citation: 433 A.2d 757
• Parties: Thomas S. ROCHE and Marylou Roche v. Robert W. EGAN, Geraldine A. Egan, Frederick L. Brown, Sandra J. Brown, Frank J. Fulhan, Jr., and Josephine A. Fulhan.
• Court: Maine Supreme Court

Page 757

433 A.2d 757

Thomas S. ROCHE and Marylou Roche v. Robert W. EGAN, Geraldine A. Egan, Frederick L. Brown, Sandra J. Brown, Frank J. Fulhan, Jr., and Josephine A. Fulhan.

Supreme Judicial Court of Maine.

Argued Jan. 6, 1981.

Decided Aug. 12, 1981.

Michael J. LaTorre, Portland, Alton L. Yorke, South Portland, for plaintiffs.

Drummond & Drummond, Horace W. Horton, Portland, for defendants.

Before WERNICK, GODFREY, NICHOLS, GLASSMAN, ^* ROBERTS and CARTER, JJ.

WERNICK, Justice.

A jury in the Superior Court (Cumberland County) found that defendants Robert and Geraldine Egan, Frederick and Sandra Brown, and Frank and Josephine Fulhan committed a libel against plaintiff Thomas S. Roche, which caused damages to both him and his wife, plaintiff Marylou Roche. Awarding each of them compensatory damages, the jury also awarded punitive damages to plaintiff Thomas Roche. A judgment was entered against each defendant from which that defendant has appealed.

We conclude that there was a critical ambiguity in the rationale underlying the verdict form regarding damages, in consequence of which judgments were entered that do not clearly show the total amount of damages plaintiffs are entitled to recover. We also conclude that as to the liability of defendants to plaintiffs, the presiding justice gave instructions to the jury that were not in accord with constitutional requirements. We therefore sustain each appeal, set aside the judgment against each defendant, and remand the case to the Superior Court for further proceedings.

Plaintiff Thomas Roche is a detective of the South Portland Police Department. At trial, the uncontradicted testimony of his colleagues praised Roche as a dedicated, capable and level-headed officer who had received at least a dozen citations for outstanding police work. In the discharge of his primary duties to investigate crimes and to arrest criminal offenders, Roche, who was on call twenty-four hours a day, carried a revolver to and from work. Other than the letter at issue in this case, the South Portland Police Department had never received any complaint about Detective Roche or about his carrying a revolver to and from work.

In early August, 1977 Ralph Segal, Chief of the Department, received a letter, reading:

"Dear Chief Segal:

"We concerned parents are requesting that patrolman Thomas Roche be restricted from carrying a weapon to his residence on 14 Fenway Road, Cape Elizabeth, Maine.

"He has harrassed (sic) neighbors with foul language, has displayed a VIOLENT temper, threatened little children, kicked pets and called the Cape Elizabeth Police Department needlessly. His conduct is most disgraceful, first as a human being and second as a public servant.

"We want it known that we are afraid for the lives of our children and our own around this most disruptive person.

"Very truly yours ...."

The letter was signed by the six defendants, neighbors of the plaintiffs on Fenway Road, Cape Elizabeth. It was also signed by Rita and John Slebodnik, former neighbors who had moved out of state before this action was instituted.

Upon receipt of the letter, the Department undertook a formal investigation of Roche's conduct. During the first two weeks of the investigation, complying with a request of the Department, Detective Roche left his revolver at the station instead of carrying it home.

Sergeant Robert Schwartz conducted the Department investigation. He testified at trial that the responses he received during interviews with the defendants seemed rehearsed, that he could find no substance to any of the charges made in the letter, and that there apparently was a "problem" in the neighborhood but it was unrelated to the wrongdoing alleged against Detective Roche. ¹

Plaintiffs emphatically denied the truth of every allegation in defendants' letter. Perhaps what was the gravest of the allegations conveyed was one not expressly stated but obviously implied: Thomas Roche is too hot-tempered, violent, and unstable a person to be safely entrusted with a police weapon in his neighborhood; he might shoot somebody, possibly a child. ²

1.

We consider, first, the difficulty that requires us to set aside the award of damages.

In a special verdict form the jury was asked to specify an amount of damages it assessed against each defendant. The jury completed the verdict form in a manner showing that it found each defendant liable (a) to plaintiff Thomas Roche for $2,000 compensatory damages and also for $4,000 punitive damages, and (b) for $1,500 compensatory damages "for the benefit of plaintiff Marylou Roche" (for her loss of consortium).

In purported correspondence with these jury findings, twelve separate judgments were entered on the Superior Court docket. In favor of plaintiff Thomas Roche a separate judgment for $6,000 damages was entered against each of the six defendants; in favor of plaintiff Marylou Roche a separate judgment for $1,500 compensatory damages was entered against each of the six defendants.

The problem we confront is that had the jury's intention been to award to plaintiff Thomas Roche an aggregate total amount of $12,000 compensatory damages and of $24,000 punitive damages, and to plaintiff Marylou Roche an aggregate total amount of $9,000 compensatory damages, the evidence in this case would support that amount of damages. The problem is compounded because the verdict form nowhere called for the jury to state a total amount of damages each plaintiff was entitled to recover. In short, the way the verdict form was set up may well have misled the jury into apportioning intended total recoveries of $36,000 and $9,000 in equal shares among the six defendants.

On the other hand, and again the record affords us no basis for knowing one way or the other, the jury may not at all have apportioned a total award. Rather, the jury may have decided, and the determination would not have been irrational on the evidence, that plaintiff Thomas' total recovery should be only $6,000 ($2,000 compensatory and $4,000 punitive damages) and plaintiff Marylou's total recovery should be only $1,500 compensatory damages. On this alternative, the judgments entered on the docket would reflect the situation as being that a satisfaction of the amount specified in any one particular judgment in favor of Thomas would constitute a satisfaction of each other judgment in favor of Thomas, and a satisfaction of one particular judgment in favor of Marylou would constitute a satisfaction of each other judgment entered in her favor. See, e. g., Hutchins v. Emery, 134 Me. 205, 207, 183 A. 754 (1936).

Defendants brought this problem to the attention of the presiding justice in a motion they filed asking for judgment notwithstanding the verdict of the jury or, alternatively, for a new trial. The justice denied the motion, and defendants raise the issue again in this appeal.

The source of the difficulty confronting us is that the plaintiffs and the presiding justice, but not the defendants, proceeded on the rationale that the defendants in this case were not joint or concurrent tortfeasors who had caused a single injury but, rather, were independently acting tortfeasors each causing a separate injury. This was error of law; in this case defendants acted jointly, or concurrently, to cause a single injury.

Maine adheres to the widely recognized common law rule that a jury may not apportion damages for a single injury caused by joint, or concurrent, tortfeasors. See, e. g., Currier v. Swan, 63 Me. 323 (1873). That rule was designed not to protect such tortfeasors but, rather, to assure that a plaintiff who is unable to collect the amount of the judgment from one joint, or concurrent, tortfeasor can collect it from another.

Where, within the framework of the verdict, there is a clear basis for discerning an aggregate, or gross, amount of damages as the intended total recovery of damages for a single injury, we have not hesitated to strike an attempted apportionment, treating it as a mere recommendation or surplusage. Currier v. Swan, supra; see also Atherton v. Crandlemire, 140 Me. 28, 33 A.2d 303 (1943). In the present situation, however, we cannot tell the total amount of damages intended to be awarded. As we have already mentioned, the verdict form nowhere called for the jury to specify a total amount of damages each plaintiff was entitled to recover. In addition, nothing was said to the jury in the presiding justice's instructions about the rationale underlying the verdict form: i. e., whether it called upon the jury (a) to award against each defendant the total amount for which said defendant was liable for having caused a single indivisible and non-apportionable injury, or (b) to award against each defendant the total amount of damages for that separate one of six injuries caused by the separate and independent tortious conduct of that particular defendant (which would have been improper).

Hence, we cannot tell what the jury was intending by its completion of the verdict form: whether it contemplated that the total damages awarded against each defendant be $36,000 to Thomas Roche and $9,000 to Marylou Roche or, rather, that the total damages awarded against each defendant be $6,000 to Thomas and $1,500 to Marylou. We must not substitute our judgment for that of the jury, or even risk doing that by purporting to infer what the jury may have intended. We must, therefore, set aside the damages part of the judgments entered and order a new trial at least on the issue of damages. See Mixon v. Riverview Hospital, 254 Cal.App.2d 364, 62 Cal.Rptr. 379 (1967); Stoewsand v. Checker Taxi Co., 331 Ill.App. 192, 73 N.E.2d 4 (1947); Saucier v. Walker, 203 So.2d 299 (Miss.1967); but see Spears v. McKinnon, 168 Ark. 357, 270 S.W. 524 (1925).

2.

The remaining question is whether a new trial may be confined to the issue of damages or whether there must be an entire new trial because of errors in the adjudication of...