Oliver Waggoner, Cross-Appellees (85-3240/3304), (85-3251) v. Howard Mosti, Cross-Appellants (85-3240/3304) (85-3251)

792 F.2d 595, 1986 U.S. App. LEXIS 26072

• Court: Court of Appeals for the Sixth Circuit
• Decided: June 12, 1986
• Docket: 85-3240, 85-3251 and 85-3304
• Status: Published

Opinions

CHURCHILL, District Judge.

The plaintiff, Oliver Waggoner, was arrested on October 29, 1980, in Toronto, Ohio, by Toronto Police Officers Howard Mosti and Michael Donohue. In the process of being arrested and soon after his arrest, the plaintiff suffered severe injuries including a fractured jaw and a fractured knee. Waggoner subsequently commenced a suit in the Southern District of Ohio, seeking damages under 42 U.S.C. § 1983 and under a pendent state claim of assault and battery. Waggoner’s wife, Mary Ellen Waggoner, joined in this suit and sought recovery for loss of consortium.

At trial, the following claims were submitted to the jury with the appropriate instruction that it must consider each claim separately and that its verdict as to one claim should not control its verdict as to any other claim: (1) Oliver Waggoner’s claim for damages against the two police officers for violation of federal constitutional rights pursuant to 42 U.S.C. § 1983. (2) Oliver Waggoner’s pendent state claim for damages against the two police officers for assault and battery. (3) Waggoner’s wife’s claim for loss of consortium. (4) Mosti’s counter-claim against Waggoner for damages for assault and battery. (5) Donohue’s counter-claim against Waggoner for damages for assault and battery.

The jury returned a general verdict in Waggoner’s favor against Donohue and Mosti with actual damages of $130,000, but without punitive damages. There was a general verdict against Waggoner's wife on her consortium claim and against Donohue and Mosti on their counter-claims. In addition, the jury returned answers to special interrogatories. Of particular relevance are the jury’s answers to special interrogatories Nos. 1, 3 and 4.

In responding to special interrogatory No. 1, the jury found that Donohue and/or Mosti had probable cause to arrest Wag-goner. With respect to special interrogatory No. 3, the jury concluded that Donohue and Mosti used excessive force in arresting Waggoner and/or in maintaining him in custody. In answering special interrogatory No. 4, the jury determined that neither Donohue nor Mosti committed an assault and battery on Waggoner.

The Court accepted the verdict and entered judgment in Waggoner’s favor in accordance with the general verdict. Mosti and Donohue filed a motion for new trial claiming that the answers by the jury to special interrogatories Nos. 3 and 4 were in conflict with each other and that the answer to special interrogatory No. 4 was in conflict with the general verdict. They also asserted that the verdict and judgment were contrary to the manifest weight of the evidence. The motion was denied, and Mosti and Donohue now appeal that ruling and also the propriety of the trial court’s award of attorney fees to Waggoner. Waggoner also appeals the trial court’s order on attorney fees, contending that the fees were unreasonably reduced in certain respects.

With regard to the sufficiency of evidence, the evidence in the case was broad-ranging and was sufficient to support any consistent findings with respect to issues submitted to the jury. Thus, the controlling issue on appeal is whether the trial court erred in its application of Federal Rule of Civil Procedure 49(b), which provides in pertinent part:

When the answers [to special interrogatories] are inconsistent with each other and one or more is likewise inconsistent with the general verdict, judgment is not to be entered, but the Court shall return the jury for further consideration of its answers and verdict or shall order a new trial. special interrogatories are inconsistent with each other and one or more of the answers is inconsistent with the general verdict, the trial court has no authority to enter judgment but must return the jury for further deliberation or order a new trial. Bahamas Agr. Industries Ltd. v. Riley Stoker Corp., 526 F.2d 1174, 1183 (6th Cir.1975). Nevertheless, it is incumbent upon a trial court, as well as an appellate court, “to reconcile the answers if possible under any view of the evidence in the case.” Sylvestri v. Warner & Swasey Co., 398 F.2d 598, 603 (2d Cir.1968); see also Gallick v. Baltimore & Ohio R. Co., 372 U.S. 108, 119, 83 S.Ct. 659, 666, 9 L.Ed.2d 618 (1963) (courts “must attempt to reconcile the jury’s findings, by exegesis if necessary”); Monsma v. Central Mutual Insurance Company, 392 F.2d 49, 54 (9th Cir.1968); 9 C. Wright & A. Miller, Federal Practice and Procedure § 2513 (1971). We note that “the consistency of the jury verdicts must be considered in light of the judge’s instructions to the jury.” Bates v. Jean, 745 F.2d 1146, 1151 (7th Cir.1984).

The standards for application of Rule 49(b) are well settled. If answers to

The defendants have not claimed error in the jury instructions and we decline to hold that, viewed as a whole, they are plainly in error. The jury was instructed that in order to find that excessive force was used, they must find that the police acted knowingly and that the force used was beyond that reasonably necessary to do the job. The court specifically stated that the jury must find “the amount of force used was grossly disproportionate to the need for force under the circumstances” and “the amount of force used amounted to an abuse of official power that shocks the conscience.” The court did not require that the officers must have specifically intended to injure Waggoner physically. We note that the instructions required that the jury find more than mere negligence in order to find a § 1983 violation. Daniels v. Williams, — U.S. -, 106 S.Ct. 662, 665-67, 88 L.Ed.2d 662 (1986).

Concerning the pendent Ohio claim for assault and battery, the court instructed the jury that to find for Waggoner they must find that the officers intended to injure him. The court stated that Waggoner had to prove “that one or both of the defendants performed the act or acts with the intent of inflicting personal violence or injury upon the person of the plaintiff.” The court then carefully instructed the jury on the difficulties of discerning a person’s intent. It is clear from the instructions that a jury could have found that although excessive force was used, the officers did not specifically intend to inflict “personal violence or injury” upon Waggoner.

The defendants state that the answers are inconsistent because the jury instructions contained the following statement: “If you find that the officers used a reasonable amount of force in arresting Mr. Waggoner, then you cannot find an assault and battery was committed on Mr. Waggoner.” (emphasis added). This argument has two weaknesses. First, it is not a necessary conclusion that if the jury did not find an assault and battery, they must have found that reasonable force was used. Moreover, Waggoner suffered severe injury while in custody subsequent to the arrest; the instruction on his federal claim discussed the use of excessive force both at his arrest and during the time in which he was in custody. It is plausible that the jury found that the unconstitutional excessive force occurred only after Waggoner was in custody. We find that the answers to the interrogatories are consistent and that the trial court did not err in denying the motion for a new trial.

The claims of error in connection with the trial court’s award of attorney’s fees also require note. The calculation of an appropriate attorney’s fee award in a civil rights case is within the sound discretion of the trial court. Hensley v. Eckerhart, 461 U.S. 424, 436-37, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983). In this instance, we reject Waggoner’s claim that the trial court’s exercise of discretion to reduce the requested fees and costs was inappropriate. Likewise, we reject Mosti’s and Donohue’s contention that the trial court abused its discretion in awarding any fees and costs to Waggoner.

The judgment and award of attorney’s fees and costs are affirmed.