Lees' negative response to this question be deemed inappropriate, it was cured by three subsequent answers which stated his was a "General Discharge Under Honorable Conditions." See plaintiffs' exhibit I-17 at pp. 3, 5, and 7. As to the mental illness question, Lees' service records showed he had undergone a psychiatric examination and had been diagnosed as having an "emotional instability reaction, chronic, moderate . . ." However, the report went on to state that Lees was "free of mental defect, disease or derangement . . ." Obviously Lees had not been diagnosed as having a "mental illness or nervous disease or epilepsy." The fact that he had had a psychiatric evaluation did not mean that he had been "a patient of a psychiatrist."
My second reason for refusing to allow Lees to be cross-examined about his service record was that plaintiff proffered no theory, much less any evidence, to show that O'Neill (as opposed to some unknown individual in the police personnel department) knew or should have known the details of Lees' police department application.
Turning to the claims against the City, I dismissed it as a defendant for the reasons stated in Pitrone v. Mercadante, 420 F. Supp. 1384 (E.D. Pa. 1976), namely that there can be no implied cause of action against a municipality directly under the Fourteenth Amendment.
If the issue on appeal were merely the propriety of this ruling, I would have no trouble finding the required substantiality. Indeed in the Pitrone case I specifically noted the conflict within this court on the Fourteenth Amendment cause of action question and made the necessary certification under Fed. R. Civ. Proc. 54(b) to allow an immediate appeal.
Unfortunately the situation here is more complicated. Smith has recovered a judgment against Lees and at oral argument on the instant motion, I was told by the assistant city solicitor that it would pay this judgment. Here the jury's verdict amounted to an assessment of Smith's total damages stemming from the incident in question. Any finding of liability against either O'Neill or the City would not expand the scope of these damages. Since the City has agreed to pay Smith the total amount which the jury said he is entitled to receive for his injuries, it is difficult to see how Smith is adversely affected by the dismissal of the City. Even if Smith technically has standing to appeal this issue, see generally C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3902 (1976), I do not believe the United States should be required to foot the bill so that plaintiff may obtain an appellate decision on a nice point of law that will have no practical consequences. Plaintiffs' answer that dismissal of the City does have practical consequences.
Smith argues that dismissal of the City, particularly during the course of trial and after the jury knew it had once been a defendant, resulted in a lower verdict. His theory is that the jury might have returned a higher verdict if the City had been left in the case because it would have realized that the City is better able to pay substantial damages than is an individual such as Lees.
Not only is this theory wholly speculative in itself but other parts of the jury's verdict render it totally frivolous. It must be remembered that the doctrine of respondeat superior has no application in a Section 1983 suit and that liability must be predicated on affirmative personal culpability. See Rizzo v. Goode, 423 U.S. 362, 370, 96 S. Ct. 598, 604, 46 L. Ed. 2d 561 (1976); Bracey v. Grenoble, 494 F.2d 566, 571 (3d Cir. 1974). The jury found no such culpability on the part of Commissioner O'Neill and, as previously stated, its verdict in that regard was amply supported by the evidence. There is no possible basis in this case on which the City's liability could have turned other than on the culpability of its high ranking official, Police Commissioner O'Neill. Thus, in view of the verdict in favor of O'Neill it is inconceivable that the jury would have found the City liable at all much less have awarded greater damages, even if the City had remained in the case as a defendant.
What has just been said also disposes of the claim that Earline Dollard was adversely affected by my not letting her claim against O'Neill go to the jury. Once again, it is inconceivable that on the evidence presented the jury would have returned a verdict in her favor while at the same time finding in favor of O'Neill as against Smith and John Dollard.
The remaining issue which plaintiff Smith seeks to raise on appeal is that the verdict of $32,500. against Lees is inadequate. Given the evidence presented on the damage issue and the narrow scope of an appellate court's authority to set aside a jury verdict on grounds of inadequacy, I conclude that this issue too is frivolous.
Tann v. Service Distributors, Inc., 56 F.R.D. 593, 598 (E.D. Pa. 1972), aff'd mem., 481 F.2d 1399 (3d Cir. 1973), explains the governing principles in this area quite succinctly:
Damages assessed by a jury are not to be set aside unless shocking to the judicial conscience or so grossly inadequate as to constitute a miscarriage of justice, Coleman v. Quaker State Coca-Cola Bottling Co., 328 F. Supp. 314 (E.D. Pa. 1971); Peterson v. Calmar Steamship Corp., 296 F. Supp. 8 (E.D. Pa. 1969), or unless the jury's award indicates caprice or mistake or a clear abuse of its fact-finding discretion or the clear influence of partiality, corruption, passion, prejudice, or a misconception of the law, Mainelli v. Haberstroh, 237 F. Supp. 190 (M.D. Pa. 1964), aff'd per curiam, 344 F.2d 965 (3d Cir. 1965). The trial judge should be extremely reluctant to interfere with the time-honored power of the jury, in the exercise of its collective judgment, to assess the damages sustained by the plaintiff.
Appellate review of damage awards for inadequacy is even narrower than the standard set forth above; generally it is limited to ascertaining whether the trial court's refusal to order a new trial on this ground amounts to an abuse of discretion. See, e.g., Pellegrin v. J. Ray McDermott and Co., Inc., 504 F.2d 884, 885 (5th Cir. 1974) (per curiam).
The primary injury suffered by Smith was a depressed skull fracture resulting from the blackjack blow inflicted by Lees. Plaintiff sought to prove through the testimony of his medical experts that the blow to the head had caused permanent brain damage which disabled Smith, who was only 39 years of age at the time of the incident, from engaging in any substantial gainful employment for the rest of his life. If this had been the only evidence and if the jury had believed it,
the $32,500. would, indeed, have been an extremely low damage award. However this was not the case.
The defendants did not seriously dispute that Smith had some intellectual inadequacy, but contended that that condition did not result from the blow inflicted by Lees. To prove this the defendants introduced evidence showing that, following a fairly short period of treatment and convalescence immediately after the incident, Smith returned to his job and worked for well over a year. This evidence also showed that the reason for Smith's employment termination was not his head injury, but because, after repeated warnings, he was intoxicated while at work. In addition, defendants' expert, Dr. Lord Lee-Benner, testified that medical records made prior to the incident in question showed that Smith had had an IQ of 80 and had just barely been able to function normally even before he suffered the fractured skull. Dr. Lee-Benner also stated that it was impossible to determine whether Smith had suffered brain damage from the skull fracture or whether it was caused by some other factor, such as a birth defect; that heavy drinking could account for Smith's intellectual inadequacies; and that in his opinion Smith was malingering and was capable of returning to gainful employment.
The jury was certainly entitled to accept or reject such testimony as it saw fit and on the basis of all the evidence presented on the damage issue, it can hardly be said that the jury's verdict of $32,500. is so inadequate as to "shock the conscience."
For all of the reasons stated above I conclude that plaintiff's appeal is frivolous and the motion to proceed on appeal in forma pauperis therefore is denied.
AND NOW, this 28th day of March, 1977, for the reasons stated in the foregoing opinion, plaintiffs' motion to proceed on appeal in forma pauperis is hereby denied.
BY THE COURT: J. William Ditter, Jr.