STATE of Indiana, et al., Appellants (Defendants Below), v. Roy HALL, Appellee (Plaintiff Below).
No. 382S108
Supreme Court of Indiana
March 22, 1982
432 N.E.2d 679
Saul I. Ruman, Hammond, for appellee.
PRENTICE, Justice.
This cause is before us upon the Petition to Transfer filed by the defendant (Appellant, State оf Indiana) which seeks relief from a $12,000.00 judgment entered in the trial court in favor of the plaintiff (Appellee, Roy Hall). Plaintiff sued the defendant and several of its employees for mali
Transfer is now granted, and the aforesaid decision and opinion of the Court of Appeals are hereby vacated.
Plaintiff was arrested by State Trooper Bonwell and chargеd in a Justice of the Peace Court with operating an overweight vehicle upon a public highway. He was unable to post the required bond, in consequence of which he spent two days in jail. His truck and its cargo were impounded and the truck remained impоunded for six months. Eventually the charges were dismissed pursuant to a “Watt‘s” motion,1 and Plaintiff regained possession of his truck.
Hall filed suit against the State of Indiana, Trooper Bonwell and several other officers and employees of the State Police Department who had been involved, in varying degrees, with the circumstances which gave rise to his aborted prosecution. It is unnecessary to recite the evidence but can be assumed arguendo, that evidence was presented which, if believed by the jury, would have warranted a verdict in Plaintiff‘s favor agаinst Trooper Bonwell, upon either theory of the complaint.
At the trial, a directed verdict was entered in favor of all defendants except Trooper Bonwell and his principal, the defendant, State of Indiana. As to them, the case went to the jury upon both the malicious prosecution theory and the
Defendant contends that the trial court erred in overruling its motion for a directed verdict. It asserts that it could have no liability under
The Court of Appeals determined that there had been sufficient evidence presented to hold the defendant, under the doctrine of respondeat superior, upon the malicious prosecution theory, that the jury found against Defendant upon that theory and that the failure of the trial court to direct a verdict upon the
In support of his position that Defendant could be held liable under
“On the other hand, the language of
§ 1983 , read against the background of the same legislative history, compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort. In particular, we conclude that a municipality cannot be held liable solely because it employs a tortfeasor—or, in other words, a municipality cannot be held liable under§ 1983 on a respondeat superior theory.” 436 U.S. at 691, 98 S.Ct. at 2036, 56 L.Ed.2d at 636.“We conclude, therefore, that a local government may not be sued under
§ 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government‘s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under§ 1983 . Since this case unquestionably involves оfficial policy as the moving force of the constitutional violation found by the District Court, see supra at 660-662, and n. 2, [98 S.Ct. 2020-2021] 56 L.Ed.2d at 616-617,we must reverse the judgment below.” 436 U.S. at 694, 98 S.Ct. 2037, 56 L.Ed.2d at 638.
It is clear that Plaintiff‘s claim under
It was the holding of the Court of Appeals that such error was harmless, because it could be determined that the jury, in returning its verdict against Defendant, relied upon the malicious prosecution theory rather than upon the civil right violation theory. The Court of Appeals arrived at this conclusion upon the basis that the trial court gave a respondeat superior instruction with respect to the malicious prosecution theory only, saying that it presumed that the jury applied the law given in the instruction. Such rationale appears to us to be specious and would render error in the denial of a directed verdict or motion to dismiss harmlеss in every case prosecuted upon multiple theories, provided the verdict was sustainable upon any one of them.
By denying a motion for a directed verdict, addressed to any theory of the complaint, the Court, in effect, is instructing that, under the law and thе evidence, the jury may find for the plaintiff upon that theory. A general verdict for the plaintiff upon a complaint which proceeded upon two theories, one good and the other bad, cannot stand unless it affirmatively appears that it rests upon the good theory. Tennis Co. v. Davis, (1910) 46 Ind.App. 436, 439, 92 N.E. 986, Fairbanks v. Warrum, (1913) 56 Ind. App. 337, 345, 104 N.E. 983.
Defendant also seeks reversal of the judgment upon the basis that there could be no recovery against the defendant, upon the malicious prosecution count because it was dependent upon the doctrine of respondeat superior and there was no verdict against any of Defendant‘s employees, citing Estes v. Hancock County Bank, (1972) 259 Ind. 542, 545, 289 N.E.2d 728, 730 and distinguishing Health & Hospital Corp. Etc. v. Gaither, (1979) Ind., 397 N.E.2d 589, 595-96. It must be noted at this point that several of Defendant‘s employeеs had been made defendants in the suit, but the trial court had directed verdicts in favor of all of them except Bonwell, and as to Bonwell, the jury had returned no verdict, which failure operated as a finding in his favor. Such a holding would terminate the litigation; however Defеndant‘s appeal of the malicious prosecution issue was not prosecuted upon that theory. Although the theory was presented by the motion to correct errors, it was not presented by Defendant upon appeal, until after the Court of Appeals held against it. The issue was then injected by motion for rehearing but came too late. The Court of Appeals responded to the improper assignment, but it should not have done so.
Appellate Rule 8.3(A) on appellant briefing provides for a statement of the issues presented for review and for an argument upon each error assigned in the motion to correct errors which Appellant intends to raise on appeal. It further provides, “Any error alleged in the motion to correct errors not treated as herein directed shall be deemed waived.” Also see Ross v. State, (1982) Ind., 429 N.E.2d 942 wherein we held that an appellant could not, by his reply brief, abandon his original theories and substitute new ones.
Further, Appellant has not presented a record which shows unequivоcally that the jury‘s verdict absolved it of liability. The record does not contain the verdict forms that were tendered by the parties or submitted to the jury. English Coal Co., Inc. v. Durcholz, (1981) Ind.App., 422 N.E.2d 302, 311; Coyle Chevrolet Co. v. Carrier, (1979) Ind.App., 397 N.E.2d 1283, 1288.
Defendant has presented one other аssignment which we answer for the benefit of the trial court and the parties, in the event of retrial. A photograph of the scale house at the weighing station was admitted into evidence over objection that it was not relevant to either the accurаcy of the scales or the presence of probable cause for Plaintiff‘s arrest and prosecution.
Relevancy is the logical tendency of evidence to prove a material fact. It is a question for the discretion of the trial judge and his decision will be reversed only where clear abuse is shown. Indiana National Corporation v. Faco, Inc., (1980) Ind.App., 400 N.E.2d 202. This evidence disclosed that the scales were poorly maintained and that the driveway area where the tractor and trailer had been weighed on portable scales was rough and not level. Such evidence was relevant to Bonwell‘s belief in the accuracy of the scales and hence to the issue of probable cause.
Other issues assigned have been waived.
The judgment of the trial court is reversed and the cause is remanded for a new trial.
GIVAN, C. J., and HUNTER, J., concur.
DeBRULER, J., dissents with opinion.
PIVARNIK, J., not participating.
DeBRULER, Justice dissenting.
There is no trial court error argued on appeal by the one appellant here, namely, the State of Indiana, which warrants setting aside the jury verdict against it. The Court of Appeals per Chipman, J., correctly stated:
“The State has raised the following issues:
1. Whether the trial court erred in not granting the appellants’ motion for directed verdict.
2. Whether the trial court erred by admitting into evidence a Hobart City Court order.
3. Whether the trial court erred by admitting into evidence a photograph of the weighing stаtion.
4. Whether the trial court erred in stating the Justice of the Peace was ‘a representative of the State of Indiana’ in the presence of the jury.”
The motion for directed verdict and the memorandum attached to it do not disclaim the appliсability of
There is likewise no basis in the remaining three issues for setting aside this verdict. The evidence of the Hobart City Court order and the photograph of the
On the basis of this appeal, I would affirm the trial court.
To this dissent it is helpful to add the observation that jury instructions are generally regarded as the means by which legal theories of liability and the manner of their proper application as well as such doctrines of respondeat superior are communicated to the jury. I cannot understand how this Court can consider whether a general verdict for the plaintiff and against a defendant can be set aside on the basis that it is the product of the application by the jury of a mistaken legal theory of liability or of the misapplication of a correct legal theory in the absenсe of an appellate challenge to jury instructions, the vehicles which finally determined and defined the applicable legal theories of liability and provided the jury with guidance in applying those theories. Here, there is no appellate challenge to the propriety of any jury instruction. This case was fairly tried on the facts at considerable cost to the plaintiff, and resulted in a jury verdict against one of the defendants. That party defendant has failed in demonstrating through the issues properly raised on appeal that the verdict is contrary to law.