The opinion of the court was delivered by: Robson, District Judge.
MEMORANDUM AND ORDER ON POST-TRIAL MOTIONS
The defendants, after a trial on the merits, have moved for a
judgment notwithstanding the verdict, for a new trial, and for a
remittitur or, in the alternative, a new trial. This court has
already considered and ruled upon (before or during trial) the
points contained in the motion for a judgment notwithstanding the
verdict, and in the motion for new trial. The one remaining
question is that of remittitur, or, in the alternative, the
granting of a new trial.
This cause of action arose as a result of the arrest of the
plaintiff on December 27, 1960, for drunken driving, resisting
arrest and speeding. It is undisputed that he was convicted by a
jury of drunken driving, pleaded guilty to the resisting arrest
charge, and was acquitted of the charge of speeding. The actual
damages claimed by the plaintiff were $95 in hospital and doctor
bills and the loss of one month's wages. No evidence was
introduced as to the amount of these wages but counsel have
agreed that they would be approximately $650. There was no
permanent injury. No punitive damages were asked. The arrest was
proper and the jury's verdict covered the alleged beating of the
plaintiff and the alleged refusal of the police officers to allow
the plaintiff to make a telephone call. The court, after
considering all of the factors in this case, is of the opinion
that the verdict is excessive and a remittitur should be granted.
Remittitur, or in the alternative, a new trial, is within the
sound discretion of the trial court, as part of its power to
grant a new trial under Rule 59. 6A Moore, Federal Practice ¶
59.05 (2d ed. 1965); Fiedler v. Chicago & Northwestern Ry.
Co., 204 F.2d 515, 520 (7th Cir. 1953). The question that this
court must answer is whether a jury verdict in a civil rights
case is to be treated any differently than a verdict in an
ordinary civil case, and whether this verdict of $17,500 should
stand, even if there is a different standard for such civil
In the ordinary civil case, there must be
"due regard for the jury's primary responsibility to
fix the amount of damages. [But that] * * * [t]he
ultimate responsibility rests with the trial judge
who may set a verdict aside. His power to set aside a
verdict as excessive implies that he has a duty to do
so when he conscientiously believes that the jury has
exceeded the bounds of propriety. This duty should
not be avoided." Dellaripa v. The New York, New Haven
& Hartford R.R. Co., 257 F.2d 733, 735 (2nd Cir.
In the civil rights case, however, the jury's verdict is entitled
to more weight than in the ordinary case, because of the inherent
difficulty in giving such rights a dollar value. The Third
Circuit Court of Appeals gave expression to this difficulty in
Basista v. Weir, 340 F.2d 74 (3rd Cir. 1965), a case involving
false arrest and false imprisonment. The court there said, at 88:
"`In the eyes of the law this right [to vote] is so
valuable that damages are presumed from the wrongful
deprivation of it without evidence of actual loss of
money, property, or any other valuable thing, and the
amount of damages is a question peculiarly
appropriate for the determination of the jury,
because each member of the jury has personal
knowledge of the value of the right.', [Wayne v.
Venable, 260 F. 64, 66 (8th Cir. 1919)] citing Scott
v. Donald, 165 U.S.  89 [17 S.Ct. 265, 41 L.Ed.
632] * * * (1897) and Wiley
v. Sinkler, 179 U.S. 58, [21 S.Ct. 17, 45 L.Ed.
84] * * * (1900). While a deprivation of a right to
vote and deprivation of personal liberty caused by an
illegal arrest and wrongful incarceration are, of
course, not identical, nonetheless the decisions
cited above provide a useful and persuasive analogy."
Even given this principle that the jury's verdict is entitled to
more weight than a verdict in an ordinary civil case, the judge
still has the discretion to set aside a verdict as excessive if
it "shocks the judicial conscience." Morgan v. Labiak,
368 F.2d 338 (10th Cir. 1966). A look at two civil rights cases where the
awards were substantially less than the verdict in this case,
supports this court's conclusion that its judicial conscience has
been sufficiently "shocked" to require a remittitur.
In Jackson v. Duke, 259 F.2d 3 (5th Cir. 1958), the plaintiff
had been pistol-whipped, beaten, falsely arrested, falsely
accused of drunkenness, and unlawfully jailed. There was also a
question of the aggravation of the plaintiff's prior injuries.
The court there sustained a verdict of $5,000, saying that it was
a "reasonable finding, fully supported by the evidence in the
record." Id., at 7. The court implied that if it had found the
$5,000 verdict excessive and "unreasonable," there would have
been little hesitation in requiring a remittutur.
The other case involved two boys who were beaten, subjected to
an unconstitutional search and seizure, and denied the right to
telephone their lawyer (for 45 minutes to one and one-half
hours). McArthur v. Pennington, 253 F. Supp. 420, 430 (E.D.Tenn.
1963). The two boys presented evidence that they suffered (at the
most) $3400 each in out-of-pocket expenses, including certain
legal fees. The court there sustained an award of $5,100 each.
Both McArthur and Jackson, supra, have factual situations which,
in this court's opinion, would call for a higher award than the
facts in this case. In both cases, however, the awards were
substantially less than the jury's verdict here.
Given the facts of this case as outlined above, even taking
into account the heavier weight that the jury's verdict is to be
accorded in a civil rights case, this court is of the opinion
that the jury's award of $17,500 is so excessive, unreasonable,
and unsupported by the record, that it "shocks" this court's
judicial conscience. In line with this attitude, this court
believes that a remittitur in the amount of $11,500, or in the
alternative, a new trial, is necessary.
It is therefore ordered that a remittitur in the amount of
$11,500, or in the alternative, a new trial, be and it is hereby
It is further ordered that the plaintiff is granted ten (10)
days from the date of this order to ...