BRADLEY MIN. CO. v. BOICE, 194 F.2d 80

HEALY, Circuit Judge. This appeal is from a judgment against appellant in the amount of $60,000 in a suit claiming damages for slander and false imprisonment. Much of appellant’s argument here has been given over to factual contentions. The district judge in an opinion denying a motion for a new trial outlined the testimony supporting the verdict, 92 F.Supp. 750, and there is no occasion for our going over the same ground. All that need be said is that the evidence was such as to make the question of liability one for the determination of the jury.

But appellant argues that in the form returned the verdict must be taken as a finding against appellee on all essential facts. Before turning to other points we will notice this claim. In addition to the corporate appellant, its executive vice president, John Bradley, was made a defendant in the case. Bradley was personally in charge of all the Company activities giving rise to this suit. The verdict returned was against the Bradley Mining Company alone. It made no mention of John Bradley, either one way or the other.

In this posture of affairs the court inquired of counsel whether they desired the jury to be returned to their room to clear up their verdict as regards Bradley. Both sides replied in the negative. Counsel’s point here is that the case was decided by the jury in favor of the defendant Bradley, hence all questions of fact which were touched by his activities have been determined against appellee. No Idaho authority is cited in support of the argument, nor are there any citations of analogous decisions from other jurisdictions. Appellee calls attention to the California case of Lloyd v.

Boulevard Express reported in 79 Cal.App. 406, 249 P. 837. The situation there was in principle on all fours with the present. The corporate defendant was held liable by the jury but no verdict was returned against its active and responsible agent, Mitchell, who was also a defendant. The court remarked, 249 P. at page 838 that “the jury did not find either for or against Mitchell. It is the settled law in this state that the verdict of a jury against one of two defendants is not a verdict in favor of the other defendant.

Such a verdict indicates simply that the jury failed to find upon the issues.’’ The court added that since the corporate defendant noticed the omission and did not ask that the jury be required to find on the issue, it could not now be heard to complain. The California rule would probably be followed in Idaho. Appellant’s principal argument aside from an appeal to the evidence appears to be that the verdict was excessive and was arrived at as the result of passion and prejudice.

There was enough evidence, certainly, if believed, to warrant the imposition of general damages in more than a nominal sum, both on the issue of false imprisonment and on the slander issue. Appellee produced testimony that armed guards were for a number of hours placed about his apartment with the view of circumscribing his movements. Consult in this connection Griffin v. Clark, 55 Idaho 364, 42 P.2d 297.

Charges of insanity and of the performance by appellee of an illegal abortion — charges obviously slanderous per se — were testified to have been made in the presence of members of the general public under circumstances which the jury might properly have found rendered them unprivileged. Too, the jury might fairly have inferred from the record that appellant acted with actual malice, both in respect of appellee’s imprisonment and in respect of the slanderous statements of its representatives.

Concededly, under the local rule, the existence of malice in fact in a case like this warrants the imposition of punitive damages. Apart from the mere size of the verdict, the claim of passion and prejudice is predicated on questions put to several of appellant’s witnesses in the course of cross examination. These questions consist mainly of inquiries whether the witness under interrogation had or had not made a certain statement tending to impeach his testimony. In each instance the witness denied having made the statement.

The complaint is that the impeaching questions were not attempted to be followed up by evidence that the witness had in fact made the statement. One need not approve tactics of this sort in order to reject appellant’s argument. We think that jurors are not so easily misled. They may safely be assumed to have intelligence enough to know that if a party has evidence tending to impeach an adverse witness he will produce it. In sum, the instances of claimed misconduct cited are not thought to have had a substantial tendency to inflame the jury.

The cause was submitted to them under elaborate instructions carefully defining the applicable-law in terms as favorable to appellant as it could reasonably have asked. There were no objections to the charge on appellant’s part. The power of this court in respect of verdicts claimed to be excessive is not coextensive with that of the district court. At most we may consider only whether the verdict is grossly excessive or “monstrous.” Southern Pacific Company v. Guthrie, 9 Cir., 186 F.2d 926, 931-933.

When the trial judge is presented, as the judge was here, with a motion for a new trial grounded on a claim of excessive verdict, his power to deal with such a claim is not limited as ours is to questions of law. He may set aside a verdict when he thinks it is against the weight of the evidence or for other reasons he deems sufficient. In this instance the judge, familiar with the atmosphere of the trial and sensible of imponderables which might prejudicially affect the action of the jury, was satisfied that their verdict was motivated by the evidence alone and that it was not excessive.

On the record before us, certainly, we can not say that he was wrong. Counsel argue that the court prejudiced their case by criticizing a hypothetical question propounded to medical witnesses whose opinion was sought as to whether appellee had practiced medicine in accordance with standards obtaining in Idaho. The hypothetical inquiry was unusually lengthy. The court in the presence of the jury expressed the belief that it included a number of matters that could be of no aid to the witnesses in forming an opinion.

Counsel now say that the court’s remarks “not only destroyed the value of the expert medical testimony given in response to the hypothetical question, but also discredited the supporting testimony which practically constituted appellant’s entire defense.” Yet counsel made no such suggestion at the time or indeed at any time while the case was before the district court. They did not ask that a mistrial be declared, nor did they subsequently advance the remarks of the court as a ground for granting their motion for a new trial.

We have nevertheless studied the hypothetical question ■ and considered the judge’s comments concerning it. The comments, we think, were not unwarranted. The question propounded appears argumentative, and it included, as the court observed, a number of matters that could not conceivably be of aid to a medical man in forming an opinion on the subject inquired about. Moreover the judge instructed the jury to disregard his remarks. One other point will be noticed briefly. Appellant is a California corporation doing business in Idaho, and its co-defendant, Bradley, is a resident of California.

The complaint alleged and the answer denied that plaintiff is a citizen and resident of Idaho. It is argued that no proof whatever was offered as to his being a citizen of that state or any other state, hence the requisite diversity was not shown. There w.as no proof directed immediately to the issue, but we think it sufficiently appears from the record as a whole that appellee was domiciled either in Idaho or in Texas. The evidence is that he was raised in the latter state and after schooling was admitted to practice medicine there.

During the second world war he entered the armed services and was discharged in October 1946, after which he sought a -location in the northwest. In January of 1947 he entered into a contract of indefinite duration with appellant to take charge of the latter’s hospital at Stibnite, Idaho. Following the making of this arrangement he returned to Texas to get his wife and children and to await the effective date of his employment, which was to be March 1, 1947. At that time he removed to Stibnite with his family and possessions, and resided there until May 15, 1948, when his contract was terminated by the company.

At the inception of this employment he had applied for a license to practice medicine in Idaho and later was licensed by the state as a physician and surgeon. It casually appears from various items of evidence in the record that follow- • ing his discharge at Stibnite he resided in Boise, where he was living at the time this casé was filed and thereafter. Proof of residency in a state is usually thought prima facie evidence of domicile sufficient to shift the burden of proof. Cf. Kelleam v. Maryland Casualty Co., 10 Cir., 112 F. 2d 940; Sherman v. Roosevelt Co., D.C., 48 F.Supp. 434; Tudor v.

Leslie, D.C., 35 F.Supp. 969. Affirmed. . In one instance it is claimed that counsel attempted to inject a religious issue in the course of cross examination. We have considered this incident and regard it as of bo more than trifling consequence. In any event it was not objected to at the time. . The whole record may be looked to on this subject. Sun Printing & Publishing Ass’n v. Edwards, 194 U.S. 377, 24 S.Ct. 696, 48 L.Ed. 1027. There was enough proof, we think, to satisfy the jurisdictional requirement.