BIGGS, Chief Judge.
I. STATEMENT OF FACTS
The plaintiff-appellant, Frank Basista, a resident of Duquesne, Allegheny County, Pennsylvania, brought suit under § 1 of the Civil Rights Act of 1871, 17 Stat. 13, 42 U.S.C.A. § 1983, the Fourteenth Amendment, section 1, and the Fourth Amendment of the Constitution of the United States. The defendants are Walter Weir, Chief of Police of Duquesne, Captain Charles Scalese, and Patrolman Vernon Smith of the Duquesne police force. Jurisdiction lies in the court below under § 1343, Title 28 U.S.C. See Hague v. C. I. O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939).
Basista alleged that while in his home, Scalese and Smith or one of them, struck him in the back of his head without provocation and thus committed an assault and battery on him; arrested him without provocation or a warrant; denied him or failed to permit him to post bail or bond; and denied him counsel and medical aid while he was in jail.
The court below directed a verdict for Police Chief Weir on the basis that there was a failure of proof.
The operative facts are as follows: In the early evening on July 17, 1959, Smith and Scalese, both on duty and cruising in a patrol car, answered a complaint received from a Mrs. Blake, a sister-in-law of Scalese. Being informed that Basista had been there and had annoyed her, the two officers then proceeded to the rear of Basista's home which was a short distance from Mrs. Blake's home. When they arrived to investigate the complaint, Basista testified that while he had been drinking, he was not drunk and that he invited the police officers into his home; that Scalese entered the house while Smith remained on the porch, seated on a concrete banister. The conversation between Scalese and Basista became heated and twice Basista challenged Scalese to a man-to-man fight behind a shed or in a rock quarry to settle their personal differences. Scalese refused.
At this point their stories as they appear from the testimony differ widely. Basista testified that he asked Scalese whether he had a warrant and upon Scalese's answer that he had none, asked Scalese to leave. Basista testified that after asking Scalese to leave he, Basista, sat down facing away from the door whereupon he was struck on the back of the head by Scalese or Smith and was then dragged from his house, in view of his wife, his children and his neighbors. He then began to resist violently whereupon Smith came to Scalese's aid and Basista alleges he was thrown to the ground face down, handcuffed, and placed in a police car; that while in the car Scalese whipped him about his head with a billy club; and that Smith with Scalese then drove him to the Duquesne jail.
The testimony of Scalese and Smith was that Basista became loud, abusive and used foul language which could be heard by neighbors and passersby and by children playing in the street. Scalese testified that he warned Basista that if he continued such behavior that he would be arrested for disorderly conduct. Scalese testified that Basista continued his tirade and attacked the Duquesne police force as a "bunch of yellow-bellies" at which point he, Scalese, told Basista that he was under arrest. At this point Basista is alleged to have pushed through the door knocking Scalese onto Smith,
Upon arriving at the police station Basista was placed immediately in a cell. He testified that he was in a dazed, injured, bleeding condition and requested medical aid, counsel and bail. It was not established to whom he made these requests. At any rate Scalese went about his duties and Smith returned to patrol. Both officers testified, and it was not contested, that once a prisoner is placed in a cell, as a matter of regular procedure it is the duty of the desk sergeant, who is also "turnkey," to inquire of a person in a cell as to whether he needs or wants medical aid, counsel, or bail.
In view of the jury's verdict, we must assume the facts were as testified to by the plaintiff's witnesses and must take those inferences from the evidence most favorable to Basista.
On the following morning Basista was given a hearing before a magistrate of the City of Duquesne and he was found guilty of disorderly conduct
Prior to the date on which the operative facts, the basis of this action, occurred, and on May 9, 1959, Basista had been arrested on a charge of beating his wife. He was incarcerated over night and when he failed to appear before the magistrate on the next morning,
It does not appear with certainty who notified the police or who swore out the complaint on the wife-beating charge against Basista, but the inference can be drawn that it was Mrs. Blake. It seems that it was in respect to this charge that Basista went to Mrs. Blake's home on July 17, allegedly to "straighten her out." While Captain Scalese investigated the complaint regarding wife-beating, he did not arrest Basista on that charge. It appears also that Smith drove the patrol car when Basista was arrested for wife-beating. Chief Weir took no part in the arrest. The impact of these facts here is not too apparent. They are included herein by way of background material as a possible explanation of the cause of some of Basista's difficulties with the police.
II. WAS THERE A CAUSE OF ACTION UNDER THE CIVIL RIGHTS ACT?
The Civil Rights Act, § 1983, provides: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."
The Act prescribes two elements as requisite for recovery: (1) the conduct complained of must have been done by some person acting under color of law; and (2) such conduct must have subjected the complainant to the deprivation of rights, privileges, or immunities secured to him by the Constitution and laws of the United States. Marshall v. Sawyer, 301 F.2d 639, 646 (9 Cir. 1962). Of what rights was Basista deprived?
Basista asserts that he was denied the right to bail for a bailable offense, a right secured to him by the Eighth Amendment of the Constitution of the United States. Chief Weir in his testimony indicated that he, at Basista's request, telephoned a Mr. Pucci with regard to obtaining bail. It is undisputed that Chief Weir was told, and that this was relayed to Basista, that bail would be furnished Basista the next day. In addition, it is not disputed that no one acting on Basista's behalf came to the jail and tendered bond or bail to the desk sergeant, who was in charge. It thus appears that if Basista remained in jail overnight, it was not because he was denied bail by any of these defendants, but because no one appeared on Basista's behalf to post bail. There is insufficient evidence to support Basista's charge of denial of bail.
Basista further alleges that he was denied medical aid. While Basista offered evidence of his need for medical aid, it does not appear that he requested the defendants to provide such aid. Nor do we think, at least on the present record, that Basista has shown that any of the defendants had a duty to provide him with medical assistance. The uncontested testimony is, as we have stated, that the procedure followed by the Duquesne jail is that once a prisoner is secured in a cell, the desk sergeant, who also doubles as "turnkey," is in charge of the prisoner, and it is one of his official duties to inquire into the prisoner's need or desire for medical aid. Basista's charge in this respect also is without sufficient evidence to sustain it.
Basista next contends that the defendants denied him counsel guaranteed by the Sixth Amendment. That allegation also finds insufficient support in the evidence.
It is clear from the foregoing that if Basista is to prevail in the suit at bar it must be on the ground that he was deprived of his right to be undisturbed in his home and deprived of his right not to be subjected to an unreasonable and illegal arrest, rights secured to him by the due process clause of the Fourteenth Amendment. Beck v. Ohio, 85 S.Ct. 223 (1964). That an individual may not be deprived of a federally protected right by an unlawful arrest and detention is no longer open to question. Cf. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Monroe v. Pape is the leading case involving Civil Rights Acts. In that case, a man's home was entered by police in the middle of the night, and he and his wife were made to stand in the center of their bedroom while the police ransacked their home, supposedly searching for evidence of a two year old burglary. The plaintiff was taken to jail without a warrant of any kind and was held incommunicado on an open charge and finally released without any charges being placed against him. The Supreme Court held that he was deprived of federally protected rights. Several circuits, including our own, have reached the same conclusion in a number of cases. See Nesmith v. Alford, 318 F.2d 110, 124 (5 Cir. 1963), cert. denied 375 U.S. 975, 84 S.Ct. 489, 11 L.Ed.2d 420 (1964); Cohen v. Norris, 300 F.2d 24 (9 Cir. 1962); Hughes v. Noble, 295 F.2d 495 (5 Cir. 1961); Brazier v. Cherry, 293 F.2d 401 (5 Cir. 1961); Coleman v. Johnston, 247 F.2d 273 (7 Cir. 1957); United States ex rel. Potts v. Rabb, 141 F.2d 45 (3 Cir.), cert. denied, 322 U.S. 727, 64 S.Ct. 943, 88 L.Ed. 1563 (1944).
The trial judge was disturbed that the case at bar may have arisen because of personal animosity between Basista and Scalese. The statutory words "under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory" do not exclude from the purview of the Civil Rights statutes acts of an official who can show no authority for what he does. Monroe v. Pape, supra, 365 U.S. at 171-187, 81 S.Ct. 473. The misuse of power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law is action pursued under color of law within the meaning of 42 U.S.C.A. § 1983. United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941); Screws v. United States, 325 U.S. 91, 107-113, 65 S.Ct. 1031, 89 L.Ed. 1495 (1944); Picking v. Pennsylvania R. Co., 151 F.2d 240 (3 Cir. 1945). Assuming arguendo that Scalese's actions were in fact motivated by personal animosity that does not and cannot place him or his acts outside the scope of Section 1983 if he vented his ill feeling towards Basista by subjecting him to a physical beating, to humiliation before his neighbors, and to incarceration,
III. THE ASSERTED DEFENSE OF COLLATERAL ESTOPPEL
Scalese contends that Basista is estopped from bringing the present action for unlawful arrest and illegal detention because of the prior proceedings in the Court of Quarter Sessions of the Peace for Allegheny County in which he was found guilty of assault and battery upon police officers Scalese and Smith. No contention of estoppel is based on the proceedings against Basista before the committing magistrate. We cannot agree that there is an estoppel in the case at bar. Putting aside any question as to the mutuality of parties, Bruszewski v. United States, 181 F.2d 419 (3 Cir.), cert. denied, 340 U.S. 865, 71 S.Ct. 87, 95 L.Ed. 632 (1950), and assuming arguendo that the doctrine of collateral estoppel would be available in actions arising under the Civil Rights Act under consideration in the circumstances at bar, we have not been furnished with a sufficient record of the proceedings of the Allegheny County Court of Quarter Sessions before which Basista was convicted of assault and battery upon the police officers. The indictment and the judgment of conviction rendered by the court on the first two counts is included among the documents which have been forwarded to us by the clerk of the court below, but these do not seem to have been admitted into evidence. But there is not contained in the record a transcript of Basista's trial before the Court of Quarter Sessions.
IV. THE GRANTING OF JUDGMENT N. O. V. OR IN THE ALTERNATIVE, THE GRANTING OF SCALESE'S MOTION FOR A DIRECTED VERDICT
There being a valid cause of action, and a jury verdict in favor of Basista, was the trial court correct in granting Scalese's motion for a directed verdict, or, in the alternative, ordering a new trial? These questions require a discussion of the bases on which the court below acted.
A. As to the Motion for a New Trial. The trial judge in his opinion, 225 F.Supp. 619, 628, stated very candidly, among other things, the following: "I am of the opinion that the jury was not adequately instructed and this was error on my part, for which reason, in any event, a new trial should be allowed." However, the court below granted the defendant Scalese's motion for a "directed verdict * * * without prejudice, or, in the alternative, a new trial."
We conclude that the statement by the court below as to the inadequacy of the instructions to the jury was correct. The court instructed the jury that "Article 6 [the Sixth Amendment of the Constitution of the United States] provided that in all criminal prosecution, the accused shall enjoy the right to a speedy and public trial by impartial jury of the state wherein the crime shall have been committed and to be informed of the nature and cause of the accusation, to be confronted with witnesses against him and to have processes for obtaining witnesses and assistance of counsel for his defense."
As was pointed out in an earlier point in this opinion, there was not sufficient evidence to support a finding by the jury that Basista was denied any of the rights guaranteed to him by the Sixth Amendment. At the close of the charge, Scalese, through his counsel, made a sufficient objection to the portion of the charge quoted, stating that the Fourth, Sixth and Fourteenth Amendments of the Constitution were not applicable under the facts of the case. The objection was in error as to the Fourth and Fourteenth Amendments, but the objection to that portion of the charge based on the Sixth Amendment was valid. Scalese raised the point in his motion for a new trial, and it has been raised here. The error in the charge was substantial and prejudicial.
"However, you have heard the evidence and it will be for you to determine whether or not the defendants had violated the civil rights of the plaintiff in rejecting any demand by him for a bond, an attorney or doctor."
It is apparent that the court below did not completely withdraw the issues presented by items "3", "4", and "5" from consideration by the jury. His action in this respect was indecisive, and, in our opinion, incomplete. As we have stated at an earlier point in this opinion, there was insufficient evidence to sustain the allegations of any of the three items referred to and the court below should not have submitted them or any of them as issues to the jury. We conclude it was prejudicial error for the trial court to have done so.
We cannot, of course, determine in advance what the state of the evidence will be as developed at the new trial on remand, but if upon the new trial evidence should be presented which will justify submission to the jury, justiciable issues as to whether Basista was deprived of civil rights cognizable under the Civil Rights Act because of his arrest or incarceration, as they are presented on the present record, the court should charge that Basista had "an undoubted right to resist an unlawful arrest * * *" to a reasonable degree. See United States v. Di Re, 322 U.S. 581, 594, 68 S.Ct. 222, 92 L.Ed. 210 (1948). At the trial as held, since the verdict was in favor of Basista, he took no harm from the failure of the court to charge as indicated.
B. As to the Granting of a Motion for Directed Verdict Pursuant to Rule 50(a). The court below in its opinion, 225 F.Supp. 619, 627-628, seems to take the position that the Civil Rights Act upon which Basista's case is bottomed is not available to him unless he first shows a deficiency or disadvantage "by which he was handicapped, obstructed, or judicially prejudiced in the state court." The trial judge went on to say: "None of these [factors] appear here and this federal court ought not to be used as a vehicle without good cause first being shown that it was a necessary vehicle to the complainants [sic] not used for ulterior purposes or in conflict with the principles upon which good government must rest. It was not proven in the evidence of this case that the state court failed to properly adjudicate the facts.
"While it is conceivable that the state judicial processes deprived the plaintiff of his federally protected rights, yet to sustain an action under the Civil Rights Act, the state court proceedings must have been a nullity, or with a purpose of depriving a person of his rights. To hold otherwise, would open the door to aggrieved state litigants and set up the federal courts as the arbiter of the correctness of every state decision," citing Bottone v. Lindsley, 170 F.2d 705 (10 Cir. 1948) and Johnson v. Stone, 268 F.2d 803 (7 Cir. 1959).
The court below went on to say "From all of the evidence presented in this case,
The two cases cited by the trial court are inapposite. In Bottone v. Lindsley, supra, the complaint alleged that by state court proceedings the defendants had conspired to deprive the plaintiff of his property without due process of law and equal protection of the laws in violation of the Fourteenth Amendment. In particular it was alleged that the state court wrongfully assumed jurisdiction of the subject matter, denied the plaintiff a jury trial, and allowed a cross-claim against him. In Johnson v. Stone, supra, the defendant in the federal case charged that counsel for the plaintiffs in a state court proceeding in the course of the trial misappropriated exhibits, introduced perjured, improper, slanderous and irrelevant testimony and made improper, irrelevant, slanderous and untrue statements. In short, both cases were civil actions brought in state courts and if they involved the violation of constitutional rights at all, the alleged violations were such as could have been corrected by further state court proceedings.
The court below seems to have approached this aspect of the case at bar from two positions. The first seems to be based on collateral estoppel. We have already dealt with this subject at length in this opinion under heading "III", supra, and have concluded that the defense of collateral estoppel was not available to Scalese here. The second ground to which the trial judge would seem to refer is apparently based on the theory that the doctrine of exhaustion of state remedies was available as a defense to Scalese. The principle of exhaustion of state remedies is not applicable here. In McNeese v. Board of Education, 373 U.S. 668, 674, 83 S.Ct. 1433, 1437, 10 L.Ed.2d 622 (1963), a case involving deprivation of rights under the Fourteenth Amendment, Mr. Justice Douglas said: "We have, however, in the present case no underlying issue of state law controlling this litigation. The right alleged is as plainly federal in origin and nature as those vindicated in Brown v. Board of Education, 347 U.S. 483 [74 S.Ct. 686, 98 L.Ed. 873]. Nor is the federal right in any way entangled in a skein of state law that must be untangled before the federal case can proceed. For petitioners assert that respondents have been and are depriving them of rights protected by the Fourteenth Amendment. It is immaterial whether respondents' conduct is legal or illegal as a matter of state law. Monroe v. Pape, * * * 365 U.S., at 171-187, [81 S.Ct. (473), at 475-484]. Such claims are entitled to be adjudicated in the federal courts. Monroe v. Pape, supra, 365 U.S. at 183, [81 S.Ct. (473) at 481]; Gayle v. Browder, 352 U.S. 903 [77 S.Ct. 145, 1 L.Ed.2d 114], affirming 142 F.Supp. 707; Borders v. Rippy, 5 Cir., 247 F.2d 268, 271. Cf., e. g., Lane v. Wilson, 307 U.S. 268 [59 S.Ct. 872, 83 L.Ed. 1281]; Smith v. Allwright, 321 U.S. 649 [64 S.Ct. 757, 88 L.Ed. 987]; Schnell v. Davis, 336 U.S. 933 [69 S.Ct. 749, 93 L.Ed. 1093], affirming 81 F.Supp. 872; Turner v. Memphis, 369 U.S. 350 [82 S.Ct. 805, 7 L.Ed.2d 762]." What was said in the McNeese case is apposite here.
The main basis, if not the sole ground, for the granting of Scalese's motion for a directed verdict seems to have been the conclusion of the trial judge that no cause of action was stated and proved by Basista under the Civil Rights Act. The trial judge was in error in so concluding and the granting of a directed verdict in Scalese's favor cannot be sustained.
In this court Scalese has raised the question as to whether or not damages were properly pleaded and proved. Basista alleged in his complaint that, because of the serious injuries inflicted upon him, he had "lost income" from his regular employment and had been compelled to incur indebtedness for medical care, and that a previous nervous heart condition was aggravated, and that he was humiliated and embarrassed "as
At a pretrial conference Basista's counsel stated that Basista was "only relying upon the aggravation, the penalty damages under the law." Counsel for Scalese stated that as he understood it, Basista was "not seeking compensatory damages here, but is only asking for punitive damages." Basista's counsel replied, "I said there is no special damage except, well, compensatory or punitive but both for the same thing. It is a violation of the civil rights." Counsel for Scalese then asked, "Are you asking just compensatory damages — just punitive damages?" Basista's counsel then replied, "It's the basis, of course, compensatory damages would be simply the penalty of the law. It is really punitive in this case. When you are talking about this case, * * * you'd say, it's involved in the same thing. There is no medical. There is no wage loss. There's [sic] no other specials. It strictly arises from a violation of civil rights by the means of the arrest, the incarceration and denial of bond and so forth." Basista's counsel may have been referring to Rule 9(g), Fed.R.Civ.Proc., 28 U.S.C., which states: "When items of special damage are claimed they shall be specifically stated.", but this also is far from clear. There was further colloquy between the court and counsel upon this subject, but what transpired is not illuminating. What was said by counsel at the pretrial conference was made the subject of the pretrial order under the practice of the court below. It is, of course, established law that a pretrial order when entered limits the issues for trial and in substance takes the place of pleadings covered by the pretrial order. See Rule 16, Fed.R.Civ.Proc., 28 U.S.C. But obviously, the pretrial order here is far from definitive in respect to the issue of damages as we have shown.
In this court Scalese's counsel raises the issue, seeking to apply the law of Pennsylvania, that there can be no exemplary or punitive damage where actual damage is not shown. See Bruce Lincoln-Mercury, Inc. v. Universal C. I. T. Credit Corp., 325 F.2d 2, 22 (3 Cir. 1963). But Scalese's counsel made no objection to the court's submission to the jury of the issue of exemplary damages, and, therefore, must be deemed to have waived any objection to this portion of the court's instructions. See Rule 51, Fed.R.Civ.Proc.
Section 1983, Title 42 U.S.C.A., is completely silent as to the kind of damages which may be awarded an injured plaintiff in a civil rights suit such as that at bar. The statute does not use the word "damages," but merely states that the offending person "shall be liable to the party injured in an action at law." Obviously, this connotes damages of some kind, but goes no further. 42 U.S.C.A. § 1988 provides that in civil rights cases the United States District Courts shall have jurisdiction for the protection and vindication of the civil rights of all persons and shall exercise that jurisdiction "in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against the law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty."
The Civil Rights Acts were brought into being at a critical time in the history of the United States following the Civil War. They were intended to confer equality in civil rights before the law in all respects for all persons embraced within their provisions. We believe that the benefits of the Acts were intended to be uniform throughout the United States, that the protection to the individual to be afforded by them was not intended by Congress to differ from state to state, and that the amount of damages to be recovered by the injured individual was not to vary because of the law of the state in which the federal court suit was brought. Federal common law must be applied to effect uniformity, otherwise the Civil Rights Acts would fail to effect the purposes and ends which Congress intended.
We are of the opinion, as we have stated, that the federal common law of damages commands the issue of damages in the case at bar. We are also of the view that the federal law permits the recovery of exemplary or punitive damages. As a matter of federal common law it is not necessary to allege nominal damages and nominal damages are proved by proof of depriviation of a right to which the plaintiff was entitled. In Press Pub. Co. v. Monroe, 73 F. 196, 201 (C.C.S.D.N.Y.), appeal dismissed, 164 U.S. 105, 17 S.Ct. 40, 41 L.Ed. 367 (1896), it was asserted by the defendant that when no actual damages were proved exemplary damages should not be allowed, but the Circuit Court, by Circuit Judge Lacombe, stated: "Some courts have held that it is unfair to allow the plaintiff to recover not only all the loss
We conclude in view of the foregoing that Basista would be entitled to sustain his judgment were it not for the errors in the trial which we have pointed out.
As we have stated, whether or not Basista waived his claim to compensatory damages is far from clear. Upon remand we think it would be of substantial aid to the parties and to the court if the case were again pretried delimiting the legal issues and a pretrial order were entered in strict conformity with Rule 16, albeit this procedure is left to the discretion of the trial court.
That portion of the judgment of the court below directing a verdict in favor of Scalese will be reversed. That portion of the judgment ordering a new trial will be affirmed.
It should be noted that no judgment of conviction from the Magistrate's Court has been made a part of the record in this action.
Other cases following the general rule are, e.g., Hamerly v. Denton, 359 P.2d 121 (Alaska 1961); Coy v. Advance Automatic Sales Co., 39 Cal.Rptr. 476 (1964); Lundquist v. Marine Engineers Beneficial Ass'n No. 97, Inc., 208 Cal.App.2d 390, 25 Cal.Rptr. 250 (1963); Holliday v. Great Atl. & Pac. Tea Co., 256 F.2d 297 (8 Cir. 1958) (citing Mo. law); Teich v. Arthur Anderson & Co., 40 Misc.2d 519, 243 N.Y.S.2d 368 (1963); Cf. Winkler v. Hartford Acc. & Indem. Co., 66 N.J.Super. 22, 29, 168 A.2d 418, 422 (1961); Widemshek v. Fale, 17 Wis.2d 337, 117 N.W.2d 275 (1962); see generally, annot. 17 A.L.R.2d 527-550.
As indicated some state courts hold that a claim for exemplary damages alone cannot constitute a cause of action. Browand v. Scott Lumber Co., 125 Cal.App.2d 68, 269 P.2d 891 (1954); Ress v. Rediess, 130 Colo. 572, 278 P.2d 183 (1954); Gill v. Montgomery Ward & Co., Inc., 284 App.Div. 36, 129 N.Y.S.2d 288 (1954); Hilbert v. Roth, supra, 395 Pa. at 276, 149 A.2d 648; General Ins. Corp. v. Harris, 327 S.W.2d 651 (Tex. Civ.App.1959); Zedd v. Jenkins, 194 Va. 704, 74 S.E.2d 791 (1953); Toler v. Cassinelli, 129 W.Va. 591, 41 S.E.2d 672 (1947).
Some states hold that there must be a finding and award of actual damages. E.g., Durham v. New Amsterdam Cas. Co., 208 F.2d 342 (4 Cir. 1953) (Va. Law); Nance v. Sheet Metal Workers International Ass'n, 12 Utah.2d 233, 364 P.2d 1027 (1961); Richard v. Hunter, 151 Ohio St. 185, 85 N.E.2d 109 (1949).
Some states require only a showing of actual damages, but not necessarily an award. E.g., Johnson Publishing Co. v. Davis, 271 Ala. 474, 124 So.2d 441 (1960); Hinson v. A. T. Sistare Constr. Co., 236 S.C. 125, 113 S.E.2d 341 (1960). South Carolina has allowed punitive damages to stand on the presumption that nominal damages were merged with the award of punitive damages. Hinson v. A. T. Sistare Constr. Co., supra; cf. Barber v. Hohl, 40 N.J.Super. 526, 123 A.2d 785 (1956).
At least one jurisdiction permits exemplary damages as an independent basis for recovery. E.g., see First Nat. Realty Co. v. Weathers, 154 A.2d 548 (Mun.Ct. App.D.C.1959), and Wardman-Justice v. Petrie, 59 App.D.C. 262, 39 F.2d 512, 69 A.L.R. 648 (1939).
Nominal damages will support exemplary or punitive damages in New York, Underwriters' Laboratories, Inc. v. Smith, 41 Misc.2d 756, 246 N.Y.S.2d 436 (1964), but not in Iowa, Amos v. Prom, Inc., 115 F.Supp. 127 (D.C.Iowa 1953).
Since the statutory authority upon which the actions are based are not the same, it is not important that state courts may also have jurisdiction by virtue of state statutes. Comparatively few states have Civil Rights Acts of their own.
If state law is followed, it appears that within the Third Circuit a plaintiff bringing an action under the Civil Rights Act, 42 U.S.C.A. § 1983, could recover exemplary damages in New Jersey on the presumption that nominal damages were merged with the award of punitive damages, Barber v. Hohl, supra 40 N.J.Super. at 789, 123 A.2d 785, but not in Pennsylvania, Hilbert v. Roth, supra. Such an inequitable result would allow a New Jersey resident to be compensated for a denial of his civil rights, but not a Pennsylvania resident. This result would be required in a diversity action, but should not be allowed where the jurisdiction of the court is statutory and exclusive.