Traver v. Meshriy

• Decision Date: 25 August 1980
• Docket Number: No. 77-2446,77-2446
• Parties: William H. TRAVER, Plaintiff-Appellee, v. David MESHRIY et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 934

627 F.2d 934

56 A.L.R.Fed. 885

William H. TRAVER, Plaintiff-Appellee, v. David MESHRIY et al., Defendants-Appellants.

No. 77-2446.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 13, 1979.

Decided Aug. 25, 1980.

Mark M. Garay, San Francisco, Cal., for defendants-appellants.

Ronald D. Foreman, San Francisco, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before GOODWIN and KENNEDY, Circuit Judges, and MURRAY, ^* District Judge.

KENNEDY, Circuit Judge:

Traver filed this action in federal district court against the Bank of America and two of its employees for their actions on April 15, 1975, in one of the Bank's San Francisco branch offices. The complaint alleged several causes of action, including: (1) deprivation of civil rights under 42 U.S.C. § 1983; (2) false imprisonment; (3) assault; (4) slander; and (5) intentional infliction of emotional distress. Jurisdiction was predicated on 28 U.S.C. §§ 1331 and 1343. The jury awarded Traver $4,500 in general damages and $52,500 in punitive damages. On appeal, the defendants contend that their actions were privileged, that insufficient evidence existed to support the verdict, and that the trial court erred in refusing to order a hearing to investigate possible juror misconduct.

We conclude that the pendent state claims were properly submitted to the jury and that the verdict is sustainable on the basis of those claims. We therefore affirm without addressing the question of whether recovery is sustainable on the federal claim.

The jury could have found the following facts on the evidence presented to it. William H. Traver collects antique American clocks. Having learned that a clock he desired was to be sold on April 15, 1975, he visited a San Francisco branch of the Bank of America on April 14 to arrange withdrawal of the necessary funds during his morning coffee break the next day. Traver testified that, in response to his concern over possible problems with the anticipated withdrawal, bank operations officer Meshriy answered that the transaction would proceed smoothly so long as Traver submitted the proper identification.

The next day, April 15, Traver returned to the branch and presented to the teller a $352 state refund check and a slip to withdraw $648 from his Bank of America savings account at the Placerville branch in order to obtain $1,000 in cash. He also presented a savings account passbook showing a balance of $1,593, a driver's license, and a Bank of America courtesy card. The teller told Traver that the withdrawal was over the teller's approved limit, and that she would have to get approval from Meshriy, her supervisor.

Meshriy, who was engaged in a telephone conversation, told the teller to ask Traver for another signature and for his birthplace and mother's maiden name, in order to verify his identity. The second signature was requested because there allegedly was a discrepancy between the signatures on the withdrawal slip and other documents presented to Meshriy. The teller then checked with the Placerville branch, which verified that Traver's account was in order and contained sufficient funds. Placerville was unable, however, to locate any record of Traver's courtesy card.

As the teller was explaining this to Meshriy, Traver in a loud and irritated voice announced that he would be back in five minutes to get his money. Traver testified that he felt he was overextending his coffee break and was disgruntled over the inordinate amount of time the transaction was taking. He said he felt intimidated, and he spoke in a loud voice because the teller and Meshriy were at some distance from the teller's window. Traver then left the teller's window and headed for the exit, leaving his documents with the teller and Meshriy. At that point Meshriy called out to Timothy Gibson, an off-duty San Francisco police officer working as a teller at the branch, "Stop that man!" or "Stop that guy!" Gibson, whose primary responsibility was the bank's security, pulled his police identification card from his wallet and proceeded to the bank exit, where he intercepted Traver.

Identifying himself as a police officer, Gibson motioned Traver to a platform in the branch on which four bank employees' desks were situated, an area in view of the bank's customers, and instructed him to sit down. Traver complied but at several points inquired what was going on and protested that he was being detained. The incident was far from over, for it then occurred to Gibson that he had left his .38-caliber handgun at his teller's station and that he should go back to get it. While Meshriy approached to talk to Traver, Gibson retrieved the gun and returned to Traver, holding the gun. The parties dispute exactly how the gun was held, but Traver admitted at trial that it was not aimed or cocked. ¹ In any event, after a few minutes, Gibson stationed himself, this time with his gun, near the bank exit where he had intercepted Traver.

Meshriy then called the Placerville branch himself, made a complete check of Traver's accounts, and decided to approve the transaction. After a heated exchange, Meshriy gave Traver the thousand dollars. Traver left, vowing that the bank would hear from him again. Approximately fifteen to twenty minutes elapsed between the time Traver was escorted to the platform and the time he left the bank.

Traver, alleging sleeplessness, loss of appetite and psychological harm as a result of the incident, sued Meshriy, Gibson, the bank, and the City and County of San Francisco in federal court. He alleged false arrest, civil rights violations, assault, battery, slander, intentional infliction of emotional distress, and negligence by the City. The battery count and all counts against the city were dismissed. ² The jury was instructed on the other counts and rendered a verdict in favor of Traver. ³ Judgment was entered and this appeal followed.

Section 1983 Claim

At the outset we reject the appellants' contention that there was insufficient state involvement in Gibson's actions to render them "under color of state law." 42 U.S.C. § 1983. Gibson himself testified that he responded to Meshriy's call as a police officer rather than as a bank employee. Furthermore, it was established at trial that using off-duty police officers as "security tellers" at the bank was part of a police department "secondary hiring" program, and that the police department selected the officers for the program. An officer who had been instrumental in establishing the program testified that if an officer believed a crime had been committed, or was directed by a bank officer to stop an individual, his or her primary duty was to the department, not to the bank. Gibson flashed his police identification at Traver, moreover, and introduced himself as a police officer before instructing Traver to sit down on the platform. All these indicia of state action compel the conclusion that Gibson was acting "under color of state law" when he responded to Meshriy's call for help. See Griffin v. Maryland, 378 U.S. 130, 84 S.Ct. 1770, 12 L.Ed.2d 754 (1963); Stengel v. Belcher, 522 F.2d 438, 441 (6th Cir. 1975), cert. dismissed, 429 U.S. 118, 97 S.Ct. 514, 50 L.Ed.2d 269 (1976); Davis v. Murphy, 559 F.2d 1098, 1101 (7th Cir. 1977).

Traver, however, presented no independent evidence linking the Bank to Gibson's actions. The jury instructions appear to predicate the Bank's liability on the theory of respondeat superior. We find it unnecessary to reach the question whether or not the Bank is liable for acts of its employees in violation of section 1983. Traver alleged pendent tort claims against all defendants based on state law, and these claims are sufficient to sustain the judgment against both the Bank and its employees. Where more than one theory of recovery has been submitted to the jury in a civil case, and where on appeal it is claimed that as to one of the theories there was a lack of evidential support or an error of law in submitting the theory to the jury, the reviewing court has discretion to construe a general verdict as attributable to another theory if it was supported by substantial evidence and was submitted to the jury free from error. Adkins v. Ford Motor Co., 446 F.2d 1105, 1108 (6th Cir. 1971); Cross v. Ryan, 124 F.2d 883 (7th Cir. 1941), cert. denied, 316 U.S. 682, 62 S.Ct. 1269, 86 L.Ed. 1755 (1942); Berger v. Southern Pac. Co., 144 Cal.App.2d 1, 300 P.2d 170 (1956). In deciding whether to exercise this discretion, the reviewing court should determine the potential for confusion of the jury which may have resulted from an erroneous submission of a particular claim or cause of action, whether privileges or defenses of the losing party apply to the count upon which the verdict is being sustained so that they would have been considered by the jury with reference to the count, the strength of the evidence supporting the count being relied upon to sustain the verdict, and the extent to which the same disputed issues of fact apply to one or more of the theories in question.

We deem this an appropriate case to exercise our discretion to construe the general verdict as attributable to the state tort law theories of recovery. The instructions on those claims were correct, and there is ample evidence to support an award to the plaintiff based upon them. The section 1983 claim is all but derivative of the state torts alleged in the complaint and the facts bearing upon it are substantially the same. A jury finding of liability on a section 1983 claim would necessarily encompass a finding of liability on one or more of the state law claims, and state law provides for the employer's liability in this instance for the state torts committed by the employees in the scope of their employment. See, e. g., Hinman v. Westinghouse Electric Co., 2 Cal.3d 956, 959, 88 Cal.Rptr. 188, 471 P.2d 988 (1970); ...