*1 ZMIJA v BARON 10, 1981, Detroit. Decided at November No. 52877. Submitted Docket 21, appeal applied for. September 1982. Leave defendants, Plaintiff, Zmija, brought J. an action John Pietrzak, Misiak, Baron, Chylinski, and L. Hamtramck H. officers, battery, arrest and false police and false for assault conspiracy. prosecution, imprisonment, Defen- malicious and Depart- Sitek, dants, Acting Police the Hamtramck Chief of joined ment, Rojek, defendants in the thereafter as and D. were as a City was also added The of Hamtramck count. respondeat superior and affirma- under theories Court, Wayne negligence. Thomas in the Circuit The tive Roumell, J., plaintiff on each count as to in favor of the found special verdicts under each returned defendant. The each plaintiff from each theory, due with a breakdown of general aggregated and a amounts were defendant. These $28,000. Defendants the amount of entered in verdict was pursuant appeal judgment to this verdict. Defen- entered appeal fees in the the award dants also $8,231.66. city argues appeal, the defendant amount of On [I] [2, [3] [4] [6,14] [7] [5] [8] [10] [II] [13] [12] [9] 60 Am Jur 75 Am Jur 20 Am Jur 75 Am Jur 3] 5 Am Jur 15 Am Jur 57 Am Jur 75 Am Jur 5 Am Jur 16 Am Jur 57 Am Jur 246. 5 Am Jur 15 Am Jur 16 Am Jur 15 Am Jur 16 Am Jur Am Jur Malicious Prosecution 2d, Appeal 2d, Appeal 2d, Perjury 2d, 2d, 2d, 2d, 2d, 2d, 2d, Conspiracy 2d, Appeal 2d, 2d, 2d, Conspiracy 49. 2d, References 2d, Trial §§ Trial 908. Costs Municipal, 2d, Civil Trial 610. Civil Municipal, Civil Conspiracy § 82.§ Rights § Rights 15. and Error 886. 75.§ 482, 483. Rights and Error 943. for Points Error 891. School, 63.§ §§ School, § §§ 16,17. §§ § § 17, § and State Tort 26. in Headnotes §§ State Tort 94,104. Liability Liability § §§ 90, Zmija v Baron denying the trial court erred its motion for a directed verdict plaintiffs respondeat superior city theory. also chal- lenges finding jury’s liable Rojek challenge under 42 USC 1983. Defendants Sitek and each *2 the trial court’s denial of their motions a directed verdict on allegation against conspiracy allege the them. Defendants also give errors in the trial court’s refusal to a standard jury instruction several other instructional errors. Held: denying 1. city’s The trial court did not err in defendant plaintiffs respondeat superior motion for a verdict on directed theory. city’s police An tort intentional the officers is not discharge governmental committed in exercise or of a meaning governmental function liability within the tort act. jury appropriate 2. The instructions did not reflect the "delib- permitted liability erate standard indifference” of but a recov- ery against city the defendant under USC based on a
finding negligence. $5,000 simple negli- of The "affirmative gence” is, against city therefore, award vacated. Municipalities punitive damages are immune from under 42 USC 1983. denying 4. The trial court did not err in defendant Sitak’s conspiracy allegation motion for a verdict directed on the against plaintiffs him since reasonable minds as to could differ conspiracy claim that Sitek was involved in a to obstruct justice. support The circumstantial evidence to was sufficient a conspiratorial design. of reasonable inference denying Rojek’s 5. The trial court erred in defendant motion allegation against for a directed verdict on the him. therefore, Appeals, entry The Court of ordered of a directed verdict of no of action cause as to him. he was Since added as a solely deposition testimony, of because his for which immune, he was and since there is no claim or evidence that he any way alleged prior was in in involved to the giving deposition testimony, of his he have should been dis- missed. refusing 6. The trial court did not abuse its to discretion give requested jury standard reference to the instruction with produce psychiatrist testimony failure to a who request had examined at his trial counsel. proper attorney-client privilege Plaintiffs assertion of his con- present stituted a reasonable excuse for the testi- failure mony. improperly permitted "exemplary” to include prosecution damages malicious initial assessment of its (including "exempla- the entire actual and to treble determination, awarding improperly damage ry”) thus double $1,500 against "exemplary” damages. The four awards are, therefore, prosecution defendants of the malicious each court, plaintiff shall have the to the circuit vacated. On remand option electing proceed to a new trial on the malicious count, only damages, prosecution the issue of but limited judgment filing $500 to a in the amount of a written consent prosecution malicious defendants. Plain- as to each the four days ten to the remittiturs shall be filed within tiff’s consent opinion. effective of this date awarding did not abuse its discretion 8. The trial court However, attorney plaintiff. the 42 USC 1983 fees to since vacated, against city remands to the this Court award plaintiff’s 1983 court for a recalculation. The fact that § circuit preclude partial automatically only not an does success against found in his favor those defendants liable assessment retry his 1983 claim § him under 1983. If elects to prevails, may petition and he he circuit for an allowance of reasonable fees court additional under 42 USC 1988. *3 part, part, in and remanded. Affirmed reversed Walsh, J., majority with but dissented concurred of defendant from their conclusion denial Sitek’s proper. for a verdict was He would hold that motion directed naturally proven by not to the circumstances did tend necessary sought support both inferences which he of the infer, first, that Sitek told an Identification have photo destroy Bureau officer that Sitek had been re- second, and, part quested preserve did so as of a that he rights. preconceived plan prejudice plaintiff’s He concerted ruling would reverse the trial court’s as to defendant Sitek and him. enter a verdict of no cause action as to directed op Opinion the Court Immunity — 1. Governmental Torts. Intentional by police employed An intentional while tort committed officers discharge city a is of a not committed in exercise or govermental governmental meaning within the function therefore, liability city, tort is not immune and act and the may be held for the officer’s torts. liable intentional — Respondeat Supe- — — 2. Torts Local Governments Persons Rights — — rior Civil Code. United States governments "persons” purposes Local USC are Zmija v Baron actions; municipality while a cannot be held liable under 1983 respondeat superior theory, governmental on a body may directly be sued under that statute where the action that is alleged illegal implements to be unconstitutional or or executes (42 policy 1983). government a or custom of that USC — Rights — — — 3. Torts Civil Local Governments Police — Deliberate Indifference United States Code. Although city simple cannot be negligent held liable for the training force, police city’s of its citizens do not have to "pattern” past police endure a they misconduct before can sue the governing under the federal statute civil actions deprivation rights; municipality if a completely fails to police force, train its or trains its officers in a reckless or grossly negligent police manner so that future misconduct is inevitable, municipality almost exhibits a "deliberate indif- resulting ference” to violations of a citizen’s constitutional rights; case, municipality may fairly such a be termed as acquiescing implicitly (42 authorizing in and such violations 1983). USC Municipalities — — Damages — Rights — 4. Torts Punitive Civil United States Code. Municipalities punitive damages are immune from under the governing federal deprivation statute civil actions for the (42 1983). rights civil USC Appeal — Directed Verdicts. Appeals, reviewing Court of granting of a motion for a verdict, required evidence, directed to view the and all legitimate emanating evidence, light inferences from that in a nonmoving most party; favorable to the correctly the motion is granted if meaning reasonable minds could not differ on the the evidence. Conspiracy —-Evidence. conspiracy may A be established circumstantial evidence and may inference; proof be based on agreement direct of an is not required necessary agreement proven, nor is it that a formal circumstances, acts, since it is sufficient if the and conduct of *4 parties agreement establish an in fact. — Perjury — 7. Actions Torts.
There is no giving perjured civil cause of action for the of testimony judicial proceedings, including deposition testi- mony, give procure or for a testimony; false necessary prove a conspiracy, it is a civil recover for
order to separate, tort. actionable Jury — Jury— Instructions. Standard Instructions 8. Trial given required when re- to be jury are instructions Standard accurate; applicable they the determina- quested and are where applicable instruction standard whether a tion of to the trial court’s accurately addressed the law is states discretion. Preserving — — Appeal Jury— Court 9. Questions Instructions Rules. generally precludes object a instruction at trial to Failure to however, instruction; in limited cir- appellate of that review unobjected-to Appeals cumstances, will review the Court of (GCR injustice prevent manifest in order to errors instructional 516.2). — — Damages — Verdict Prosecution General Malicious Damages. Exemplary prosecution to have action must elect plaintiff in a malicious A damages determination its actual include within damages "exemplary” suffered of amount statutory verdict, single general in which case the return apply, plaintiff may choose trebling provision or the would not damages "non-exemplary” com- trebling actual of to have damages "exemplary” with the in accordance pensate for his 27A.2907). (MCL600.2907; trebling provision MSA Option — — Appeal Damages Judgments — — — Trial New Remittitur. damages Appeals, were errone- finds that of where it The Court determined, allow a may court and ously remand to a circuit option proceeding limited to to a new trial alone, filing to a question a written consent or of Appeals the Court of an amount determined remittitur Appeals days the Court of the effective date of within ten 527.6). (GCR 1963, decision — Rights Attorney — — Actions United 12. Actions Fees Civil Code. States party discretion, prevailing may, allow A trial court in its part in an action the costs fee as reasonable governing for the civil actions enforce the federal statute party’s rights; success deprivation of civil the fact automatically preclude only partial the assessment does not *5 Zmija 529 v Baron Opinion of the Court (42 attorney fees those defendants found him liable to 1983,1988). USC Partial and Dissent D. P. Conspiracy — Words Phrases. and persons, by A is a combination of more two or some action, accomplish purpose, concerted to an unlawful or to accomplish purpose by a lawful unlawful means. Conspiracy — Circumstantial Evidence. circumstantial, generally however, Proof of a is naturally prove design must circumstances tend to the common satisfy and must sufficient in themselves the trier fact design; existence such common the circumstances suspicion must do more than create a mere of the existence of a conspiracy; support the evidence must a reasonable inference person with acted at least one other end; accomplish an unlawful circumstantial evidence is insuffi- conspiratorial design cient if the a inference of is not reason- able, probable, and unstrained. Bruetsch, Patrick J. plaintiff. Canham,
Tyler & P.C. M. (by David Tyler and Walter), Michael J. for defendants. Maher, P.J.,
Before: R. M. Walsh and Riley, D. C. JJ. Riley,
D. C. J. The facts in this case are ade- forth quately Judge set opinion. Walsh’s For the reasons stated in that opinion we concur resolution of all presented issues except the issue relating the propriety denial the trial court’s of defendant Sitek’s motion for a directed verdict. As to disagree issue Judge we with Walsh and find no error in the denial of that In a motion. case, recent a panel this Court accurately succinctly set forth the for reviewing standard motion directed verdict. reviewing verdict,
"In a motion for a this directed App Mich Opinion Court evidence, legiti and all required view Court is evidence, in a emanating from that mate inferences nonmoving party. If reason light favorable to most meaning could not differ on able minds granted.” Miller v correctly the motion evidence 122, 125; App Corp, 112 Mich Steel Great Lakes (1982), Ferguson citing Bosca J A Construc NW2d 558 (1977). 177; Co, NW2d tion *6 question Thus, whether reasonable becomes plaintiff’s claim that Sitek differ as minds could justice. in a to obstruct was involved establishing presented evidence at trial Plaintiff Acting plaintiff’s Sitek, wrote that plaintiff’s mug requesting Police, shot Chief of that placed in the from file be removed and either department’s nonpublic file or sent the attor- ney’s specifically that office. letter photo destroy it needed Sitek because was not having litigation. Despite impending Sitek’s photo destroyed. In letter, received this addition, testimony Sitek had a dis- there is that Bureau cussion an officer at Identification with concerning plaintiff’s request. upon evidence, that it would seem
Based this persons honestly reach could different reasonable conclusions photograph
as to whether destroyed accidentally de- purpose or with the. stroying expressly had which evidence could stated he to use trial. intended at One reasonably infer, evi- based the circumstantial something dence, it than an that had more been Therefore, the trial did not err accident. court denying directed defendant Sitek’s motion verdict. consequence
Finally, it is of
evidence
no
largely
It must
Sitek was
circumstantial.
kept
proof
is
be
of a
mind
Zmija v
Baron
D.F.
in nature. Bahr v
Miller
circumstantial
generally
Bros
Creamery,
415, 421;
365 Mich
NW2d 463
(1961). In our recent decision in
Raglin,
Vincent v
242, 250;
(1982),
Mich
"Direct is not nor is it necessary sufficient if the parties agreement proven. that a formal It is circumstances, acts, and conduct of the agreement an
establish fact. "Furthermore, established, conspiracy may be evidence, frequently established circumstantial omitted.) (Citations may be based on inference.” bar, In the at case the circumstantial evidence was sufficient support reasonable inference of a conspiratorial design. We hold that the trial court did not err in denying defendant Sitek’s motion for a directed verdict. part,
Affirmed in in part, reversed and re- *7 manded for proceedings consistent herewith. We costs, retain no jurisdiction. No neither party hav- ing prevailed in full. Maher, P.J.,
R. M. concurred. Walsh, (concurring part, dissenting in J. part). Plaintiff Baron, John Zmija sued defendants Misiak, Pietrzak, Chylinski, Sitek, Rojek, and the of City Hamtramck on various theories. Defen- Baron, Misiak, dants Chylinski, and Pietrzak were sued for assault and battery, false arrest and false imprisonment, prosecution, conspir- malicious and acy. Defendants Sitek and were as Rojek joined defendants count. Defendant was sued under respondeat superior theories of theory negligence”. This latter
and "affirmative plaintiff alleged liability city’s on was based against conspiracy count 1983.1The defendants was 42 USC under based, least also at the individual in part, violation of USC plaintiff on each in favor found of The The returned defendant. as to each count special theory, with a break- under each verdicts damages plaintiff defen- from each due down of gen- aggregated and a were These amounts dant. eral verdict $28,000. in the amount was entered pursuant appeal judgment entered Defendants appeal They the award to also to this verdict. plaintiff in the amount fees pursuant $8,231.66 to 42 USC of a 1972 altercation arose out This lawsuit Chylinski, plaintiff Baron, defendants and between 25, 1972, these Misiak, December and Pietrzak. On police officers, arrested defendants, Hamtramck being charged plaintiff drunk and him with and battery. disorderly for- assault and and with eventually dropped. May, charge 1973, In mer acquitted by jury of the assault charge. battery complaint November, 1974, filed a seeking defendants, these four impris- battery, false false arrest and
assault and onment, conspiracy. prosecution, malicious John March, to Lieutenant In a letter Acting De- Sitek, partment, plaintiff’s attorney Police Chief of the Hamtramck mug
asked that plaintiff, plaintiff was booked taken when shot statute, ordinance, regula who, "Every person any under color of tion, custom, usage, any Territory or the District State or Columbia, subjected, any the the the subjects, citizen of or causes to be person jurisdiction thereof to United States or other deprivation within the *8 any rights, privileges, immunities secured laws, party injured in action an Constitution and at shall be liable to * *” * law, equity, proper proceeding for redress. suit in or other Zmija v Baron December, 1972, on the charges, be removed from department file. the photo- He graph be sent to him or that it placed department’s nonpublic file. The letter informed Sitek photograph showed the results of beating plaintiff which had suffered at hands of the four officers whom plaintiff suing. was concluded, therefore, The letter "I expect, that you [i.e., will not it destroy the photograph] but will it retain until subpoenaed by along me with the relating other records to his arrest and prosecu- tion”. Instead of retaining the photograph, an officer the Identification Bureau shredded it beyond repair. this, When Sitek discovered he ordered that the shreds be sent plaintiff’s attor- ney. 1977,
In May, Daniel Rojek deposed. He testified that he had been with plaintiff on Decem- 25, ber 1972. According to Rojek, had held gun on him. He reported person had this in the Hamtramck Department. Police Rojek police Hamtramck officer from January, September, 1977. He had not been an officer at the time of the 1972 incident.
Plaintiff filed an amended complaint Septem- ber, 1977. Rojek and Sitek were added as defen- dants. Plaintiff alleged that these defendants the original four defendants engaged had in a conspiracy against him. Plaintiff also added the City of Hamtramck as a alleged defendant and respondeat city’s under liability, the doctrine of superior, police acts of the officers. addition, alleged that defendant city’s police department training had no formal for its officers, no formal system regular for the evalua- tion of the of its quality performance, officers’ a system promotion based solely on the results *9 524
534
by
Walsh,
J.
these
Based on
service examination.
of a civil
police department,
in the
alleged inadequacies
defendant
city
from
plaintiff
sought
42 USC 1983.
negligence” under
"affirmative
I
that
trial court
argues
first
the
city
Defendant
a directed verdict
its motion for
denying
erred
superior
The
respondeat
theory.
city
on plaintiff’s
torts
it is not liable for the intentional
argues that
defen-
police
the individual
officer
employees,
of its
Michigan,
McCann v
authority
the
dants. On
(1976),
Lockaby
521
65;
247 NW2d
398 Mich
(1979),
65;
II finding the challenges jury’s also city Defendant 42 USC liable to under city that argues 1983. The that instructions city inadequate they permitted were § finding on a recovery against based simple negligence. agree. We Dep’t City
In Monell v
of Social Services
York,
New
658;
2018;
98 S
56 L Ed 2d
US
Ct
(1978),
Supreme
the United States
Court held
governments
"persons”
purposes
local
are
2Any ambiguity
regard following
McCann and
in this
the release of
891;
Michigan,
Lockaby
resolved in Wavro v
407 Mich
NW2d
(1979),
Court, citing
Lockaby,
Supreme
McCann and
where the
not erred
reversed this Court’s determination that the trial court had
dismissing
Michigan
the State of
claims
sought
Michigan
had
dam
State Police. The
in Wavro
ages
Michigan
plaintiff
negligent discharge
by a
for the intentional or
of a firearm
striking
police trooper
state
and the intentional
during
alleged
place
trooper.
The
offenses had taken
trooper’s
plaintiff. (Unpublished per
opinion
curiam
arrest
1979.)
77-5254,
April
No.
released
Zmija v Baron
1983. While a
cannot be
municipality
held
§
a respondeat
liable under
superior
the-
§
ory,
governmental
body may be sued directly
under
that statute where the action that
is alleged
to be unconstitutional
or illegal
implements
executes a policy
government.
or custom of that
Supreme
Court declined to set forth the full
contours
of municipality
under
liability
Monell,
subsequent
Numerous
decisions
how
*10
ever,
proof
have indicated that
of mere negligence
is insufficient
governmental
to recover from a local
body
applicable
under
The
standard
has
§
indifference,
been
described as
variously
deliberate
Providence,
Leite v
(D
RI,
463 F Supp
1978),
Bruner,
(D
gross negligence, Hild v
city alleged inadequacies in the training supervision of the offi- city’s police In context, cers. this adopt we the "deliberate Providence, of Leite v indifference” su- standard pra, and endorse court’s of discussion the standard: "Although city simple cannot be held liable for
negligent training police force, of its the city’s citizens do not duct 'pattern’ have to past police endure a miscon- they
before can sue the city under section 1983. If a municipality force, completely police fails to train its or trains its grossly negligent officers a reckless or police so that future misconduct is almost manner inevitable, the municipality exhibits a 'deliberate indif- resulting ference’ to the tutional violations of a citizen’s consti- rights. case, In such a municipality may fairly be acquiescing termed as implicitly autho- rizing light such responsibility, violations. Walsh, D.F. wield, normally a mu- police force that authority, and imputed actual or to have nicipality fairly considered consequences that inevitable knowledge the almost inadequate grossly train- or the nonexistent arise from If police force. supervising of a ing and injury results from complete lack of training force, police such an training of a inadequate grossly negligence but the result of injury is not mere indifference and conscious of a deliberate result police offi- supervising of these training and city. The resulting miscon- inadequate and the so cers must be fairly be considered city can probable, so duct police probability of serious acquiesced in the to have Supp 463 F 590-591. misconduct.” case did instructions this not Because the but appropriate liability standard reflect recovery against permitted a § negligence, we vacate finding simple based on a $5,000 negligence” against award "affirmative the city. plaintiff’s
In the event of a retrial of fact shall not be the trier city, claim dam- punitive to consider an award permitted from Municipalities punitive are immune ages. v Fact Newport under 42 USC *11 Concerts, Inc, 247; 2748; 101 Ct 69 L Ed 453 US S (1981). 2d 616
Ill court’s de- challenges Defendant Sitek the trial plain- nial of his motion for a directed verdict on him. I must conspiracy allegation tiff’s from majority’s dissent conclusion of the proper. denial motion was motion, Sitek’s considering and all testimony court was to view the obliged Zmija v Baron by legitimate inferences light most favorable to plaintiff. Denial of the motion was required if reasonable persons could have honestly reached different concerning conclusions the facts relating to defendant liability. Hayes v General Sitek’s Corp, Motors 188, App 192; Mich 308 NW2d (1981). A is a combination of two or more persons, action, some concerted accomplish an purpose, unlawful accomplish a lawful Fenestra, purpose by Inc v Gulf unlawful means. American Corp, Land 565, 377 Mich 593; 141 (1966). NW2d 36
In affirming the trial court’s denial of defendant
Sitek’s motion
verdict,
for a directed
the majority
correctly notes that proof of a
gener
ally circumstantial. Bahr v Miller Bros Creamery,
(1961).
415;
Mich
The sole evidence presented plaintiff on the *12 D. Walsh, J. destruc- charge against Sitek
conspiracy an Bureau Identification photograph tion to preserve Sitek had been officer after to evidence, asked it. From this the Identification Sitek told infer that defendant did to and that he destroy photo Bureau officer plan concerted preconceived of a part so as rights. prejudice plaintiff’s proven by In the circumstances my judgment, support naturally not tend both plaintiff did contrary, necessary inferences. On these in con- Sitek’s participation of defendant inference entirely against plaintiff specula- certed action In denying defen- considerably tive strained. verdict, the trial motion for directed dant Sitek’s that the motion should expressed court its belief and, therefore, granted. agree I would probably ruling enter a directed the court’s reverse no of action as to defendant Sitek. verdict of cause
IV Sitek, Rojek Like defendant defendant claims trial court erred his motion denying allega- plaintiff’s a directed verdict on tion him. motion, plain- response defendant Rojek’s
tiff’s
stated that he
added him as
had
complaint
the amended
because
According
his May,
deposition testimony.
had
plaintiff,
had
false and
testimony
been
given
attempt
been
an
to further
the aims
had
sued
already
which
original
four
individual defendants.
no
for the
giving
There is
civil cause of action
Zmija v Baron
*13
Walsh,
Partial
Concurrence
J.
Rogoski v
Muskegon,
107
perjured testimony.
Mich
Hubbell,
v
730;
(1981);
Because Rojek was added as a defen- dant solely deposition because of his testimony, immune, which he was persuaded we are that he should have been dismissed from this suit. There no claim or evidence that he in any way involved in alleged prior to the giving deposition We, therefore, his testimony. order entry of directed verdict of no cause of action as to defendant Rojek.
V Defendants challenge give the court’s refusal 119 Mich failure with reference
SJI 5.01
psychiatrist who had
testimony
of a
produce
his
coun-
request
at the
trial
examined
sel,
6.01,
instruction,
per-
now SJI
The standard
evidence which was
to infer
mits
party
for which the
control and
party’s
under
nonproduction
gave no
excuse
reasonable
party.
to that
would have been adverse
adopted
rule
Court has
a strict
Supreme
instruc-
standard
requiring
and accu-
given
they
applicable
when
are
tions be
Passino,
458; 275
405 Mich
NW2d
Socha
rate.
*14
Dist,
(1979);
School
393 Mich
Ypsilanti
v
243
Javis
(1975). The
543
determination
689; 227 NW2d
appli-
standard instruction is
requested
whether
to
the law is addressed
accurately
states
cable
Passino, supra,
Socha
trial court’s discretion.
v
challenge
not
the trial
court’s
Defendants
do
that
this
witness
ruling
psychiatrist
the absence of
proper
to
assertion
was attributable
rul-
attorney-client
privilege.
support
its
his
1;
367 Mich
Lipson,
the court cited
ing,
Lindsay
(1962).
We no abuse refusing give jury to standard consti- privilege instruction. Plaintiffs assertion of to present tuted a for failure "reasonable excuse” was, the witness’s instruction testimony. therefore, no had inapplicable and defendants to right charge to its inclusion in the court’s final jury. VI allege instructional Defendants several other Zmija v Baron errors. While defense counsel made numerous timely instructions, to the objections jury in order to preserve these for appellate issues review he to obliged specifically state the matters which objected grounds he and the objec- his 1963, 516.2; tions. GCR Kotila v McGinty, (1970). App 396; 184 Although NW2d requirements of GCR 516.2 were not met case, have, nonetheless, this we carefully reviewed the allegations of instructional error to assure that defendants have not suffered manifest Cf. injustice. Feld, 271; Howard v 100 Mich NW2d (1980). In only respect persuaded one are we unjust.3 instructions were manifestly 27A.2907,4 600.2907;
Pursuant MCL MSA jury was in assessing instructed defendants, the four malicious prosecution the total amount of malicious prosecution damages regarding specificity The federal courts follow similar strict rule objections See, of 892 appeal e.g., Naranjo, instructions. Corriz v 667 F2d (CA 10, 1981), action, argued a 1983 where the § defendants improperly permitted recovery” that the instructions "double objection injuries. for been the same The court found that this had not preserved case, appellate Similarly, review. in this defen deprived opportunity dants rectify alleged the trial court given errors in the § instructions. We have ¿legations and, considerable attention to those error after review ing whole, persuaded instructions as a we are not that the verdict manifestly under defendants’ 1983 count was *15 unjust. 4"Every person shall, maliciously, who for vexation and trouble or procure any attached, arrested, cause or any way other to be or in proceeded against, by any process action, any or or civil or criminal prescribed law, by other prosecution manner to answer the suit to person, or any person, of no without the consent of such or where there is person known, arrested, person such shall be liable to so proceeded against, damages attached or in treble the amount of the which, expenses verdict, by and any be found been shall to have him; by person sustained and incurred and shall be liable to the proceeding whose name such arrest $200.00 or was had in the sum of damages, misdemeanor, guilty punishable and shall be deemed of a imprisonment by county jail conviction in the for exceed a term not ing 6 months.” App 524 119 Mich
542 by Walsh, D.F. these of each of at the hands suffered should be trebled. individual defendants it explained court what charge, Later in the This concept "exemplary” damages. called rule following described echoed instruction Scripps Reilly, v 38 Mich Court in the Supreme (1878): 23 however, case, enti- "Where, exist the elements feelings, damages injured
tling party to recover shame, anxiety, mental to be allowed the amount honor, suffering indignation and conse- insulted aggravated by or wrong, may be increased quent on the malice, reckless- feelings, degree the ness, or vindictive defendant, gross negligence or carelessness these ele- more serious where injury as the is much ments, them, to have existed.” either of are shown damages noted that these Court Supreme although damages, "actual must considered puni vindictive or usually spoken exemplary, as v Detroit, 67 Mich Ray p 24. See tory”. Scripps, lv den 397 (1976), Mich 494 App 702; 242 NW2d Ins Mutual Life Kewin v Massachusetts (1976); Co, reh (1980), 401, 419; 295 409 Mich NW2d (1980). den Mich 1116 include charged, permitted As in its initial assessment "exemplary” to treble prosecution damages malicious de- damage (including "exemplary”) entire actual argue that the jury termination. Defendants "exem- permitted thus award double improperly plary” damages. agree. We Rashid, 193; LaLone Mich (1971), (1971), this lv den NW2d 98 27A.2907, Court, 600.2907; MSA construing MCL in a prosecution held that malicious within action elect include must to have the *16 Zmija v Baron by Walsh, D. F. J. its damages actual determination the amount "exemplary” damages suffered plaintiff, which case the statutory trebling provision would not apply, or to have trebling of "non-exem- plary” damages actual compensate his or her "exemplary” damages.5 The rationale for this construction of the statute was recently described by Judge Bashara: "By allowing trebling of the pursuant verdicts statute,
to the two damages enhancements permitted awards would be what, effect, on is the policy same consideration. The would be allowed to enhance the verdict based on vague concept injured feelings due to defendant’s outra geous conduct. Plaintiffs would also receive a second pursuant enhancement to the statute which presumably expresses legislative determination that a defendant punished should be outrageous for its conduct in a prosecution malicious Damages action. should bear relationship some to the harm actually committed and not be totally arbitrary, even where defendant has engaged in the type most vile of conduct.” Rivers v Ex- Corp, Cell-O App 842-843; Mich 300 NW2d 420 (1980) (Bashara, J., dissenting). We adopt this construction 600.2907, of MCL and, therefore, $1,500 vacate the four jury awards each of the prosecution malicious defen- dants. We remand court, to the circuit where shall have option electing pro- ceed to a new trial on the malicious prosecution count, but limited only the issue of damages, or filing a written consent to a judgment in the 5 LaLone, distinguished the Court between "actual” and "exem plary” damages. opinion suggests "exemplary” that "actual” and mutually are agree exclusive. We with the LaLone result disagree but with "exemplary” damages, the notion that as described Scripps Reilly, supra, v damages. are Ray not "actual” See Detroit, supra. four defendants of these as to each
amount of $500 Plaintiffs count.6 prosecution the malicious *17 ten be filed within shall the remittiturs consent See opinion. this of date of the effective days 1963, Rashid, 527.6. Cf. GCR supra. v LaLone VII challenges the award defendants Each of the of in the amount fees attorney’s 42 made pursuant $8,231.66. The award was in 1988, part: provides which USC provision to enforce proceeding any "In action * * * discretion, court, may in its USC 1983] [42 * * * attorney’s party a reasonable prevailing allow part of the costs.” fee as that a reason- case found in this The trial court rendered for all of services fee attorney’s able $24,695. two Only would claims, however, predicated were of plaintiffs six attor- the court awarded Accordingly, on § $8,231.66— in the amount fees to ney’s $24,695. two-sixths trial court’s discretion of the
We find no abuse Dawson plaintiff. fees to attorney’s award of in its 1979). (CA we 7, Since Pastrick, 600 F2d v how- against city, 1983 award vacated § for recalcula- ever, circuit court we remand to the deter- shall fee. court attorney’s tion of the special prosecution form reads: verdict The malicious against Zmija "We, plaintiff, jury, John and in find favor Misiak, Baron, [i.e., Chylinski, of the defendants defendants all following in the amounts: Pietrzak] = = = $1,500.00 $1,500.00 $1,500.00 $500.00
J. Baron X X Chylinski 3 3 3 $500.00 H. D. Misiak L. $500.00 X = $1,500.00” $500.00 Pietrzak X Zmija v Baron fee, if plain- due attorney’s any, mine a reasonable prosecution tiff his successful partially plaintiff’s 1983 claims. The fact suc- § § would not only partial automatically cess was an assessment fees his preclude attorney’s found him against favor those defendants liable to (D Beck, Supp 452 F 1983. Scheriff under § County Sethy Dist, v Alameda Water Colo, 1978); cert den 444 US (CA 9, 1979), 1046; 602 F2d 894 (1980). 734; 62 L 2d 731 If plaintiff 100 S Ct Ed elects to his 1983 claim retry action, in that he prevails may petition and he court for an additional allowance of reasonable fees under USC 1988. attorney’s part, part, I would affirm reverse proceedings remand for consistent herewith.