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Docket Number

Docket No. 63604.

Attorney(S)

Marston, Sachs, Nunn, Kates, Kadushin O'Hare, P.C. (by David K. Barnes, Jr.), for plaintiff. George W. Crockett, Jr., Acting Corporation Counsel, Sylvester Delaney, Deputy Corporation Counsel, and Hurticene Hardaway, Assistant Corporation Counsel, for defendants.

Judges

WILLIAMS, J.

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Smart Summary

Bailey v. Graves, Docket No. 63604 — Supreme Court of Michigan (Decided Aug. 24, 1981)

Factual and Procedural Background

On September 19, 1972, a narcotics search warrant was executed at a Detroit apartment. During the raid the plaintiff's neck was broken in a struggle with two officers. The plaintiff filed this civil action for assault and battery.

At trial the plaintiff testified that he surrendered immediately when officers forced the door, was handcuffed, taken to a bedroom where he was beaten and thrown on his head, and then taken to a living room where beatings with a claw hammer continued. He denied any attempt to use force and stated the only gun in the apartment remained in a kitchen drawer. The defendants' testimony differed materially; one defendant testified the plaintiff was fleeing toward the bedroom and was tackled to prevent access to a gun allegedly lying on the bed and denied beating the plaintiff.

The trial court instructed the jury on exemplary damages in the form requested by the plaintiff (instruction text summarized in the Arguments section below), rather than in the form requested by the defendants (which the opinion reproduces). The jury returned a $225,000 verdict for the plaintiff, without apportioning damages. The trial court denied motions for judgment notwithstanding the verdict and for a new trial. The Court of Appeals affirmed (unpublished opinion, July 16, 1979, Docket No. 78-2826). This Court granted leave to appeal April 17, 1980; the case was argued November 13, 1980 and decided August 24, 1981.

Legal Issues Presented

Whether the trial court erred in its jury instruction on exemplary damages by failing to explain the plaintiff's burden of proof and the standard of misconduct (malice, willful or wanton conduct, or reckless disregard of rights) required to recover exemplary damages.
Whether the trial court's refusal to give defendants' proposed self-defense instructions (proposed instructions XVI and XIX) was error; and whether that issue was properly preserved for appellate review.

Arguments of the Parties

Plaintiff's Arguments

The trial court gave the exemplary damages instruction requested by the plaintiff, which (as given) defined exemplary damages as additional compensation for humiliation, sense of outrage and indignity, injuries to feelings, and stated that exemplary damages "may not be awarded for the purpose of punishing a defendant" and were discretionary.

Defendants' Arguments

Defendants requested an instruction (quoted in the opinion) stating that exemplary damages "must arise out of the outrageous nature of the act by the defendant" and are recoverable only if the plaintiff has proven, by a preponderance of the evidence, malice or willful or wanton misconduct, or negligence so great as to indicate a reckless disregard of the rights or safety of others. If such conduct is not proven, exemplary damages may not be awarded.
Defendants also argued that the trial court should have given their proposed self-defense instructions (XVI and XIX). The Court of Appeals and this Court concluded that the self-defense issue was not properly preserved below.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Wise v. Daniel, 221 Mich. 229; 190 N.W. 746 (1922)	Exemplary damages are limited to circumstances where the defendant acted maliciously or with spite/venom such that the victim's sense of outrage is increased; exemplary damages relate to additional compensation for such outraged feelings.	The Court relied on Wise to support the rule that exemplary damages require malice or similarly culpable conduct and used Wise to demonstrate that the jury must be instructed accordingly; the trial instruction here failed to impose that prerequisite.
McFadden v. Tate, 350 Mich. 84; 85 N.W.2d 181 (1957)	Approved charging the jury that exemplary damages are appropriate if the assault and battery occurred without justification and was "wilful, wanton and malicious".	The Court cited McFadden to confirm that exemplary damages are justified only upon a finding of malice or willful and wanton conduct demonstrating reckless disregard of the plaintiff's rights.
Winchester v. Meads, 372 Mich. 593, 599; 127 N.W.2d 337 (1964)	Cited for procedural authority regarding remand for retrial on the question of damages (as used in this opinion).	The Court cited Winchester in support of reversing and remanding for retrial on the amount of damages without limitation to any particular element of damages.
Hunt v. Deming, 375 Mich. 581, 584; 134 N.W.2d 662 (1965)	Principle that an issue not properly preserved below cannot be raised on appeal.	The Court relied on Hunt to conclude that defendants' claim regarding the refusal to give their proposed self-defense instructions was not properly preserved and therefore not a basis for relief.
Rouse v. Gross, 357 Mich. 475, 481-482; 98 N.W.2d 562 (1959)	An error warranting a new jury trial is one of such significance as to have prejudiced the result — i.e., without the error the result might well have been different.	The Court invoked Rouse to explain that the trial court's failure to define the circumstances permitting exemplary damages was prejudicial and could have affected the verdict, thus requiring reversal and retrial on damages.

Court's Reasoning and Analysis

The Court began by identifying the governing principle: awards of exemplary damages are justifiable only after a finding that the defendant's conduct was malicious, or so willful and wanton as to demonstrate a reckless disregard of the plaintiff's rights (relying principally on Wise and McFadden). The trial court, however, failed to instruct the jury that such a finding was a sine qua non to awarding exemplary damages and did not include defendants' requested language requiring proof, by a preponderance of the evidence, of malice or willful/wanton misconduct.

The Court rejected the plaintiff's contention that an instruction characterizing the tort as "intentional" adequately covered the malice/willful-and-wanton requirement. The opinion explains that an intentional tort does not necessarily equate to malicious or wanton conduct (and to treat it so would effectively permit exemplary damages in most assaults, contrary to the law governing exemplary damages).

Applying the standard from Rouse, the Court concluded that the instructional omission was materially prejudicial. Because the jury was permitted to award exemplary damages without being instructed that malice or equivalent culpable conduct must be proved, the verdict could have been affected by that omission. Finally, because the jury's verdict was not apportioned between compensatory and exemplary elements, the amount awarded is "tainted" and the quantum attributable to improperly awarded exemplary damages cannot be ascertained.

Holding and Implications

HOLDING: The trial court's instruction on exemplary damages was deficient for failing to explain the plaintiff's burden of proof and the requisite standard of misconduct (malice, or willful and wanton conduct demonstrating reckless disregard). The Court reversed and remanded for retrial on the question of the amount of damages.

Implications:

The direct effect of the decision is reversal of the judgment and remand for a new trial limited to the question of the amount of damages the plaintiff suffered as a result of the assault and battery, with no limitation as to any particular element of damages.
The defendants are entitled to have the jury properly instructed on the standard required to recover exemplary damages (i.e., that exemplary damages require a finding of malice or conduct so willful and wanton as to demonstrate a reckless disregard of rights).
The opinion does not announce a new rule of law beyond applying established precedents (Wise, McFadden, et al.); it reverses for prejudicial instructional error and remands for retrial on damages. Costs were ordered to abide the final results.

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BAILEY v GRAVES

WILLIAMS, J.

The question presented in this civil action for assault and battery is whether the trial court erred in its instruction to the jury on exemplary damages, which failed to explain plaintiff's burden of proof and the standard of misconduct requisite for recovery of such damages. We hold that the instruction given was deficient in those particulars. Wise v Daniel, 221 Mich. 229; 190 N.W. 746 (1922). Defendants are entitled to a properly instructed jury. Accordingly, we reverse and remand for retrial on the question of the amount of damages plaintiff suffered as a result of defendants' misconduct, without limitation to any particular element of such damages. Winchester v Meads, 372 Mich. 593, 599; 127 N.W.2d 337 (1964).

Defendants also claim relief on the theory that the trial court erroneously refused to give their proposed instructions XVI and XIX on self-defense. The Court of Appeals correctly ruled that this issue was not properly preserved below. Hunt v Deming, 375 Mich. 581, 584; 134 N.W.2d 662 (1965). Furthermore the opinion recognized that, even if an objection proper in form had been made, "neither the evidence adduced at trial, nor the defendants' pretrial statement, pleadings, or written theory of the case submitted to the court raised the issue of self-defense".

FACTS

On September 19, 1972, a search warrant for narcotics was executed on a Detroit apartment. Plaintiff's neck was broken during a struggle with two of the officers. This civil action for assault and battery followed.

At trial, plaintiff testified that he was visiting the apartment at the time of the raid. He reported that he surrendered immediately to the officers who forced the door. He said he was promptly handcuffed, and taken into a bedroom where he was beaten and thrown on his head; he was then taken into the living room where the beatings, this time with a claw hammer, continued. He denied any attempt to use force to defend himself; the only gun in the apartment, he testified, presumably remained in a kitchen drawer during the execution of the warrant.

The defendants' version of the events varied from the plaintiff's in every salient particular. Defendant Piersante testified that plaintiff was fleeing from the police toward the bedroom when he was tackled to prevent access to a gun, allegedly lying on the bed. He denied beating the plaintiff.

The trial court instructed the jury on exemplary damages, as requested by the plaintiff, in the following languages:

The instruction requested by defendants read:
"If you find for the plaintiff, you may consider the question of exemplary damages. Exemplary damages are to compensate the plaintiff for humiliation, embarrassment, and the sense of outrage, resulting from the defendants' actions. The right to recover exemplary damages is not based on punishing the defendant but must arise out of the outrageous nature of the act by the defendant. Such exemplary damages are only recoverable if plaintiff has proven, by a preponderance of the evidence, malice, or willful or wanton misconduct, carelessness or negligence by the defendant; negligence so great as to indicate a reckless disregard of the rights or safety of others. If plaintiff has not proven such outrageous conduct on the part of the defendant, he may not recover exemplary damages." (Emphasis added.)

"Now, in that connection, if you find for the plaintiff, you may consider the question of exemplary damages. Exemplary damages are defined as additional compensation to the plaintiff for humiliation, sense of outrage and indignity resulting from the defendants' actions, and for injuries to the plaintiff's feelings. Exemplary damages may not be awarded for the purpose of punishing a defendant. Such damages are an additional sum which are in your discretion and are designed to compensate the plaintiff for those elements which I have just mentioned."

The jury returned a verdict of $225,000 in favor of the plaintiff, without apportioning damages. The trial court subsequently denied motions for judgment notwithstanding the verdict and for new trial. The Court of Appeals affirmed.

This Court granted leave to appeal on April 17, 1980. 408 Mich. 894 (1980).

Unpublished opinion, July 16, 1979, Docket No. 78-2826.

The principal cases setting forth the grounds for exemplary damages are Wise v Daniel, supra, and McFadden v Tate, 350 Mich. 84; 85 N.W.2d 181 (1957). The instruction given by the judge in Wise read:

"On this last proposition, if you do find that the defendant deliberately and premeditatedly drew the gun and shot him, you may give, besides actual damages, that is, loss of wages and pain and suffering, what are called added or cumulative damages; that is damages for outraged feelings by reason of the malice that goes with it, if you so find. But you are to give these added damages only in case he shot him deliberately after they separated, you see." 221 Mich. 233.

Reviewing this instruction, our Court stated:

"We * * * feel the jury was left in no doubt as to the meaning when such damages were limited to plaintiff's sense of outrage by reason of the malicious act of defendant. * * *

"If a cow kicks a man in the face the consequent physical hurt may equal that from a kick in the face with a hob-nailed boot, but the `cussedness' of the cow raises no sense of outrage, while the malicious motive back of the boot kick adds materially to the victim's sense of outrage. If a man employs spite and venom in administering a physical hurt he must not expect his maliciousness to escape consideration when he is cast to make compensation for his wrong. If the defendant maliciously inflicted the injury then the jury had a right to take into consideration such fact together with all the circumstances disclosed and award such sum by way of compensation as the plaintiff ought to receive, and the defendant ought to be made to pay." 221 Mich. 233-234.

Similarly, in McFadden, this Court approved the trial judge's instruction which required the jury to find malice, saying:

"In discussing the matter of damages in his charge to the jury the trial judge stated, in substance, that if the assault and battery was determined as occurring without justification or reasonable excuse, and to be `wilful, wanton and malicious', the plaintiff was entitled to recover damages for necessary expenses, loss of wages, pain and suffering, and `exemplary damages'.

* * *

"The trial judge was not in error in advising the jury with reference to the computing of damages by way of compensation if the injury inflicted on plaintiff was determined to have been so inflicted maliciously, wilfully and wantonly." 350 Mich. 88-89.

These cases stand for the proposition that an award of exemplary damages is justifiable only where it is first shown that defendant's conduct was malicious, or so willful and wanton as to demonstrate a reckless disregard of the plaintiff's rights.

In the instant case, the trial court failed to charge the jury, in accordance with defendants' request, that a determination of malicious or willful and wanton conduct on the part of the defendants was a sine qua non to the award of exemplary damages. This was error. Furthermore the plaintiff is not correct in asserting that, when the trial judge instructed the jury on the issue of liability that the tort was intentional, that the required malice, fraud or willful and wanton conduct on the part of the defendant to establish entitlement to exemplary damages was adequately covered. The fact that a tort is committed intentionally does not mean that it was committed with malice or reckless disregard of the rights of others, or wantonly, as necessary to permit exemplary damages. In addition, to hold the contrary would be to permit exemplary damages in most assaults, for example, which obviously is not what exemplary damages are intended for.

We noted in Rouse v Gross, 357 Mich. 475, 481-482; 98 N.W.2d 562 (1959), that "[t]he error which calls for a new jury trial is one of such significance as to have prejudiced the result * * * without which * * * the result might well have been different". (Citations omitted.)

The trial court in this case erred in failing to define the circumstances in which exemplary damages are properly recoverable. This error seriously prejudiced defendants, since it permitted the jury to award exemplary damages without consideration of the factors which must be present to justify such an award. Consideration of those factors — whether defendants acted maliciously or so willfully and wantonly as to demonstrate a reckless disregard of plaintiff's rights — might well have altered the resultant verdict.

CONCLUSION

Defendants are entitled to a properly instructed jury. The trial court erred reversibly by failing to inform the jury of the conduct which is a necessary precursor to recovery of exemplary damages.

Since the verdict was not apportioned, the tainted quantum of plaintiff's damages is unknown. Accordingly, we reverse and remand for retrial of the question of the amount of damages plaintiff suffered as a result of this assault and battery, without limitation as to any particular element of such damages.

Costs to abide final results.

COLEMAN, C.J., and KAVANAGH, LEVIN, FITZGERALD, RYAN, and BLAIR MOODY, JR., JJ., concurred with WILLIAMS, J.

BAILEY v. GRAVES