Armstead v. Jackson , 121 Mich. App. 239 ( 1981 )

121 Mich. App. 239 (1981) 328 N.W.2d 541

ARMSTEAD
v.
JACKSON

Docket Nos. 49059, 49564.

Michigan Court of Appeals.

Decided September 14, 1981.

Kelman, Loria, Downing, Schneider & Simpson (by Nicholas J. Rine), for plaintiffs.

James M. Hacker, for Royal Oak Township.

Before: V.J. BRENNAN, P.J., and N.J. KAUFMAN and M.J. KELLY, JJ.

PER CURIAM.

Plaintiffs' suit for assault and battery and malicious prosecution resulted in directed verdicts in favor of defendants Officer Donald Arnold and Royal Oak Township. With regard to the third defendant, Officer Robert Jackson, the jury returned verdicts of $136,500 in favor of plaintiffs on the assault count and $127,083 in favor of plaintiff Horace Armstead on the malicious prosecution count. The latter award was trebled pursuant to MCL 600.2907; MSA 27A.2907, resulting in a total verdict of $517,749. The lower court granted a new trial to defendant Jackson after plaintiffs refused remittitur of all damages in excess of $100,000. Plaintiffs appeal as of right from the granting of the directed verdicts and by leave granted from the granting of the new trial.

The litigation arose out of a confrontation between plaintiff Horace Armstead and defendant Jackson in which Armstead was shot and wounded. Officers Jackson and Arnold were responding to a citizen's report of two men fighting in which the citizen indicated that one might have a gun. Armstead and a second witness testified that the shooting was largely unprovoked, while Officer Jackson testified that Armstead knocked him down with a blow to the jaw, threatened to kill him and reached for his back pocket as if to retrieve a weapon. Plaintiff Horace Armstead was hospitalized for six weeks and has been left with scars, circulatory problems and loss of sexual function. He missed substantial time from work and has been forced to accept less strenuous employment. Ten days after plaintiffs filed the instant suit, criminal proceedings were commenced against plaintiff Horace Armstead upon the complaint of Officer Jackson charging Armstead with disorderly conduct and resisting arrest. On plaintiff Horace Armstead's motion, the complaint and warrant were subsequently quashed. Plaintiffs thereafter amended their complaint to set forth malicious prosecution counts.

Plaintiffs initially argue that the trial court erred in granting a directed verdict in favor of Royal Oak Township. The court ruled that the township was protected by governmental immunity since the actions of Officer Jackson were made pursuant to a governmental function. We agree with plaintiffs' contentions.

Officer Jackson's actions involved responding to a reported breach of the peace and subsequently swearing out a criminal complaint on that alleged breach. It cannot be seriously argued, and is not so argued, that such activities are not effectively accomplished only by the government and are, therefore, governmental functions. Parker v Highland Park, 404 Mich. 183, 199-200; 273 NW2d 413 (1978); Deaner v Utica School Dist, 99 Mich. App. 103, 107; 297 NW2d 625 (1980); Ross v Consumers Power Co, 93 Mich. App. 687; 287 NW2d 319 (1979), lv gtd 408 Mich. 959 (1980).

However, the specific acts complained of were intentional torts, e.g., assault and battery and malicious prosecution.

A majority of the Supreme Court justices are in accord that intentionally tortious acts committed by agents of governmental units are not activities within the exercise or discharge of a governmental function and, consequently, not protected by governmental immunity. Lockaby v Wayne County, 406 Mich. 65; 276 NW2d 1 (1979); McCann v Michigan, 398 Mich. 65; 247 NW2d 521 (1976); Shunk v Michigan, 97 Mich. App. 626; 296 NW2d 129 (1980); Antkiewicz v Motorists Mutual Ins Co, 91 Mich. App. 389; 283 NW2d 749 (1979), remanded on other grounds 407 Mich. 936 (1979).

In the instant case, the trial court granted defendant township's motion for a directed verdict at the close of plaintiff's proofs on the grounds that the activities were governmental functions. Therefore, our task is to determine if the plaintiffs had produced competent and sufficient evidence as to the occurrence of intentionally tortious conduct on the part of defendant township's agent to overcome the defense of governmental immunity.

Our review of the proofs and reasonable inferences therefrom drawn in a light most favorable to the nonmoving party convinces us that the plaintiffs had produced sufficient evidence to sustain a jury finding that Officer Jackson had committed both the intentional torts of assault and battery and malicious prosecution. Signs v Detroit Edison Co, 93 Mich. App. 626, 631; 287 NW2d 292 (1979); Beasley v Grand Trunk W R Co, 90 Mich. App. 576, 583-584; 282 NW2d 401 (1979). Hence, the trial court was precluded from directing a verdict in defendant township's favor on the grounds of governmental immunity.

We reach a contrary conclusion with regard to the directed verdict in favor of Officer Arnold. There was no competent and sufficient evidence to show that Arnold was involved in either the assault or prosecution of plaintiff Horace Armstead. The testimony indicated that Officer Arnold was preoccupied with handling the person with whom plaintiff Horace Armstead had been fighting when the assault occurred. Criminal charges against plaintiff Horace Armstead were instituted solely upon the complaint of Officer Jackson. Since there was no competent and sufficient evidence of Officer Arnold's liability, the directed verdict was appropriate. McKinch v Dixon, 391 Mich. 282; 215 NW2d 689 (1974).

According to the foregoing analysis, a partial new trial must be granted as to the issue of liability only on behalf of defendant Royal Oak Township. We add the caveat that proof of the officer's intentional tortious conduct sufficient to overcome the township's defense of governmental immunity will not automatically impose liability upon the township. There must be a secondary determination that the township was vicariously liable for the officer's acts under the doctrine of respondeat superior. This requires a finding that defendant Jackson was acting within the scope or apparent scope of his employment. McCann v Michigan, 398 Mich. 65, 71-72; 247 NW2d 521 (1976); Galli v Kirkeby, 398 Mich. 527, 538; 248 NW2d 149 (1976); Bozarth v Harper Creek School Dist, 94 Mich. App. 351, 354; 288 NW2d 424 (1979). This is a question of fact to be determined by the trier of fact. McCann v Michigan, supra; Capitol City Lodge No 141 v Meridian Twp, 90 Mich. App. 533, 538; 282 NW2d 383 (1979), lv den 408 Mich. 856 (1980); Lincoln v Fairfield-Nobel Co, 76 Mich. App. 514, 519; 257 NW2d 148 (1977).

Secondly, we agree with the plaintiffs' contention that the trial court erred in ordering remittitur and in its consequent grant of new trial as to defendant Jackson. In the instant case, after the jury returned a verdict of $136,500 on the assault count and $127,083 on the malicious prosecution count, the trial court entered a judgment in the amount of $100,000. He opined that "[t]aking into consideration all the facts regarding the alleged damage done to the plaintiff and his wife, * * * [I am] of the opinion that the total judgment should not be in excess of $100,000 and I am accordingly entering a judgment in that amount". We are persuaded that, in substituting it judgment for that of the jury, the trial court abused its discretion. There is nothing in the instant record which suggests that the jury's verdict was a product of improper methods, prejudice against defendant Jackson or sympathy for the plaintiffs. Bennett v Hill, 342 Mich. 754, 763-764; 71 NW2d 220 (1955); Belin v Jax Kar Wash, 95 Mich. App. 415, 423-424; 291 NW2d 61 (1980). Nor can it be said that this verdict was so clearly excessive as to shock the judicial conscience. GCR 1963, 527.1(4); Stevens v Edward C Levy Co, 376 Mich. 1; 135 NW2d 414 (1965). While the final amount of damages, $517,749, is large, we are mindful that this is a product of the statutory mandate that malicious prosecution awards be trebled. MCL 600.2907; MSA 27A.2907. Neither the trial court nor this appellate court is free to circumvent or second guess the legislative intent that such plaintiffs recover enlarged awards. Since the trial judge failed to set forth any reasons for his action which are legally recognized and are supported by any reasonable interpretation of the record, we must conclude that the trial court abused its discretion. Willett v Ford Motor Co, 400 Mich. 65; 253 NW2d 111 (1977); Kailimai v Firestone Tire & Rubber Co, 398 Mich. 230; 247 NW2d 295 (1976).

Hence, we reinstate the jury verdict against Officer Jackson for $136,500 on the assault count and $127,038 on the malicious prosecution count; the latter being subject to the trebling provision of MCL 600.2907; MSA 27A.2907, for a total verdict of $517,749. Since the potential liability of the defendant township is derivative or vicarious of Officer Jackson, the above also serves as the determination of damages if the township should be found liable on either count.

Affirmed in part and reversed in part.