D.F. WALSH, J. (concurring in part, dissenting in part).

Plaintiff John Zmija sued defendants Baron, Chylinski, Misiak, Pietrzak, Sitek, Rojek, and the City of Hamtramck on various theories. Defendants Baron, Chylinski, Misiak, and Pietrzak were sued for assault and battery, false arrest and false imprisonment, malicious prosecution, and conspiracy. Defendants Sitek and Rojek were joined as defendants in the conspiracy count. Defendant city was sued under theories of respondeat superior and "affirmative negligence". This latter theory was based on the city's alleged liability to plaintiff under 42 U.S.C. § 1983. The conspiracy count against the individual defendants was also based, at least in part, on violation of 42 U.S.C. § 1983.

The jury found in favor of plaintiff on each count as to each defendant. The jury returned special verdicts under each theory, with a breakdown of damages due plaintiff from each defendant. These amounts were aggregated and a general verdict was entered in the amount of $28,000. Defendants appeal the judgment entered pursuant to this verdict. They also appeal the award to plaintiff of attorney fees in the amount of $8,231.66 pursuant to 42 U.S.C. § 1988.

This lawsuit arose out of a 1972 altercation between plaintiff and defendants Baron, Chylinski, Misiak, and Pietrzak. On December 25, 1972, these defendants, Hamtramck police officers, arrested plaintiff and charged him with being drunk and disorderly and with assault and battery. The former charge was eventually dropped. In May, 1973, plaintiff was acquitted by a jury of the assault and battery charge.

In November, 1974, plaintiff filed a complaint against these four defendants, seeking damages for assault and battery, false arrest and false imprisonment, malicious prosecution, and conspiracy.

In a March, 1976, letter to Lieutenant John Sitek, Acting Chief of the Hamtramck Police Department, plaintiff's attorney asked that a mug shot of plaintiff, taken when plaintiff was booked on the December, 1972, charges, be removed from the department file. He requested that the photograph be sent to him or that it be placed in the department's nonpublic file. The letter informed Sitek that the photograph showed the results of the beating which plaintiff had suffered at the hands of the four officers whom plaintiff was suing. The letter concluded, "I expect, therefore, that you will not destroy it [i.e., the photograph] but will retain it until subpoenaed by me along with the other records relating to his arrest and prosecution". Instead of retaining the photograph, an officer in the Identification Bureau shredded it beyond repair. When Sitek discovered this, he ordered that the shreds be sent to plaintiff's attorney.

In May, 1977, Daniel Rojek was deposed. He testified that he had been with plaintiff on December 25, 1972. According to Rojek, plaintiff had held a gun on him. He had reported this in person to the Hamtramck Police Department. Rojek was a Hamtramck police officer from January, 1977, to September, 1977. He had not been an officer at the time of the 1972 incident.

Plaintiff filed an amended complaint in September, 1977. Rojek and Sitek were added as defendants. Plaintiff alleged that these defendants and the original four defendants had engaged in a conspiracy against him. Plaintiff also added the City of Hamtramck as a defendant and alleged the city's liability, under the doctrine of respondeat superior, for the acts of the police officers. In addition, plaintiff alleged that defendant city's police department had no formal training for its officers, no formal system for the regular evaluation of the quality of its officers' performance, and a system of promotion based solely on the results of a civil service examination. Based on these alleged inadequacies in the police department, plaintiff sought damages from defendant city for "affirmative negligence" under 42 U.S.C. § 1983.

I

Defendant city first argues that the trial court erred in denying its motion for a directed verdict on plaintiff's respondeat superior theory. The city argues that it is not liable for the intentional torts of its employees, the individual police officer defendants. On the authority of McCann v Michigan, 398 Mich. 65; 247 N.W.2d 521 (1976), and Lockaby v Wayne County, 406 Mich. 65; 276 N.W.2d 1 (1979), we reject defendant city's argument.

II

Defendant city also challenges the jury's finding that the city was liable to plaintiff under 42 U.S.C. § 1983. The city argues that the jury instructions were inadequate in that they permitted a § 1983 recovery against the city based on a finding of simple negligence. We agree.

In Monell v Dep't of Social Services of City of New York, 436 U.S. 658; 98 S Ct 2018; 56 L Ed 2d 611 (1978), the United States Supreme Court held that local governments are "persons" for purposes of § 1983. While a municipality cannot be held liable under § 1983 on a respondeat superior theory, the governmental body may be sued directly under that statute where the action that is alleged to be unconstitutional or illegal implements or executes a policy or custom of that government.

The Supreme Court declined to set forth the full contours of municipality liability under § 1983. Numerous decisions subsequent to Monell, however, have indicated that proof of mere negligence is insufficient to recover from a local governmental body under § 1983. The applicable standard has been variously described as deliberate indifference, Leite v Providence, 463 F. Supp. 585 (D RI, 1978), gross negligence, Hild v Bruner, 496 F. Supp. 93 (D NJ, 1980), recklessness, Spriggs v Chicago, 523 F. Supp. 138 (ND Ill, 1981).

The instant plaintiff's § 1983 claim against the city was based on alleged inadequacies in the training and supervision of the city's police officers. In this context, we adopt the "deliberate indifference" standard of Leite v Providence, supra, and endorse that court's discussion of the standard:

"Although a city cannot be held liable for simple negligent training of its police force, the city's citizens do not have to endure a `pattern' of past police misconduct before they can sue the city under section 1983. If a municipality completely fails to train its police force, or trains its officers in a reckless or grossly negligent manner so that future police misconduct is almost inevitable, the municipality exhibits a `deliberate indifference' to the resulting violations of a citizen's constitutional rights. In such a case, the municipality may fairly be termed as acquiescing in and implicitly authorizing such violations. In light of the responsibility, authority, and force that police normally wield, a municipality is fairly considered to have actual or imputed knowledge of the almost inevitable consequences that arise from the nonexistent or grossly inadequate training and supervising of a police force. If the plaintiff's injury results from the complete lack of training or grossly inadequate training of a police force, such an injury is not the result of mere negligence but the result of a deliberate and conscious indifference by the city. The training and supervising of these police officers must be so inadequate and the resulting misconduct so probable, that the city can fairly be considered to have acquiesced in the probability of serious police misconduct." 463 F. Supp. 590-591.

Because the jury instructions in this case did not reflect the appropriate standard of liability but permitted a § 1983 recovery against defendant city based on a finding of simple negligence, we vacate the $5,000 "affirmative negligence" award against the city.

In the event of a retrial of plaintiff's § 1983 claim against the city, the trier of fact shall not be permitted to consider an award of punitive damages. Municipalities are immune from punitive damages under 42 U.S.C. § 1983. Newport v Fact Concerts, Inc, 453 U.S. 247; 101 S Ct 2748; 69 L Ed 2d 616 (1981).

III

Defendant Sitek challenges the trial court's denial of his motion for a directed verdict on plaintiff's conspiracy allegation against him. I must dissent from the majority's conclusion that the denial of the motion was proper.

In considering defendant Sitek's motion, the court was obliged to view the testimony and all legitimate inferences in a light most favorable to plaintiff. Denial of the motion was required if reasonable persons could have honestly reached different conclusions concerning the facts relating to defendant Sitek's liability. Hayes v General Motors Corp, 106 Mich. App. 188, 192; 308 N.W.2d 452 (1981).

A conspiracy is a combination of two or more persons, by some concerted action, to accomplish an unlawful purpose, or to accomplish a lawful purpose by unlawful means. Fenestra, Inc v Gulf American Land Corp, 377 Mich. 565, 593; 141 N.W.2d 36 (1966).

In affirming the trial court's denial of defendant Sitek's motion for a directed verdict, the majority correctly notes that proof of a conspiracy is generally circumstantial. Bahr v Miller Bros Creamery, 365 Mich. 415; 112 N.W.2d 463 (1961). The circumstances, however, must naturally tend to prove the common design and must be "sufficient in themselves to satisfy [the trier of fact] of the existence of such common design". Brown v Evans, 149 Mich. 429, 431-432; 112 N.W. 1079 (1907). The circumstances must do more than create a mere suspicion of the existence of a conspiracy. 16 Am Jur 2d, Conspiracy, § 68, pp 279-280. The evidence must support a reasonable inference that the defendant acted with at least one other person to accomplish an unlawful end. Rencsok v Rencsok, 46 Mich. App. 250; 207 N.W.2d 910 (1973), lv den 390 Mich. 751 (1973). Circumstantial evidence is insufficient if the inference of a conspiratorial design is not reasonable, probable, and unstrained. 15A CJS, Conspiracy, § 30, p 701.

The sole evidence presented by plaintiff on the conspiracy charge against Sitek was the destruction of the photograph by an Identification Bureau officer after Sitek had been requested to preserve it. From this evidence, plaintiff asked the jury to infer that defendant Sitek told the Identification Bureau officer to destroy the photo and that he did so as part of a preconceived concerted plan to prejudice plaintiff's rights.

In my judgment, the circumstances proven by plaintiff did not naturally tend to support both of these necessary inferences. On the contrary, the inference of defendant Sitek's participation in concerted action against plaintiff is entirely speculative and considerably strained. In denying defendant Sitek's motion for a directed verdict, the trial court expressed its belief that the motion should probably be granted. I agree and, therefore, would reverse the court's ruling and enter a directed verdict of no cause of action as to defendant Sitek.

IV

Like defendant Sitek, defendant Rojek claims that the trial court erred in denying his motion for a directed verdict on plaintiff's conspiracy allegation against him.

In response to defendant Rojek's motion, plaintiff's attorney stated that he had added him as a defendant in the amended complaint because of his May, 1977, deposition testimony. According to plaintiff, that testimony had been false and had been given in an attempt to further the aims of the conspiracy for which plaintiff had already sued the four original individual defendants.

There is no civil cause of action for the giving of perjured testimony. Rogoski v Muskegon, 107 Mich. App. 730; 309 N.W.2d 718 (1981); Meyer v Hubbell, 117 Mich. App. 699; 324 N.W.2d 139 (1982). Witnesses' absolute privilege from civil suit arising from their testimony in judicial proceedings (including deposition testimony) is conferred so that participants in such proceedings may have relative freedom to express themselves without fear of retaliation. Sanders v Leeson Air Conditioning Corp, 362 Mich. 692, 695; 108 N.W.2d 761 (1961); Myers v Bull, 599 F.2d 863 (CA 8, 1979), cert den 444 U.S. 901; 100 S Ct 213; 62 L Ed 2d 138 (1979).

In order to recover for a civil conspiracy, it is necessary to prove a separate, actionable tort. Roche v Blair, 305 Mich. 608; 9 N.W.2d 861 (1943); Earp v Detroit, 16 Mich. App. 271; 167 N.W.2d 841 (1969). Since the giving of false testimony is not itself actionable, it is the general rule that no civil action lies for conspiracy to give or to procure false testimony. Anno: Actionability of Conspiracy to Give or to Procure False Testimony or Other Evidence, 31 ALR3d 1423; Rogoski v Muskegon, supra.

Because defendant Rojek was added as a defendant solely because of his deposition testimony, for which he was immune, we are persuaded that he should have been dismissed from this suit. There was no claim or evidence that he was in any way involved in the alleged conspiracy prior to the giving of his deposition testimony. We, therefore, order entry of a directed verdict of no cause of action as to defendant Rojek.

V

Defendants challenge the court's refusal to give SJI 5.01 with reference to plaintiff's failure to produce the testimony of a psychiatrist who had examined plaintiff at the request of his trial counsel. The standard instruction, now SJI 6.01, permits the jury to infer that evidence which was under a party's control and for which the party gave no reasonable excuse for nonproduction would have been adverse to that party.

The Supreme Court has adopted a strict rule requiring that requested standard jury instructions be given when they are applicable and accurate. Socha v Passino, 405 Mich. 458; 275 N.W.2d 243 (1979); Javis v Ypsilanti School Dist, 393 Mich. 689; 227 N.W.2d 543 (1975). The determination of whether a requested standard instruction is applicable and accurately states the law is addressed to the trial court's discretion. Socha v Passino, supra, 467.

Defendants do not challenge the trial court's ruling that the absence of this psychiatrist witness was attributable to plaintiff's proper assertion of his attorney-client privilege. In support of its ruling, the court cited Lindsay v Lipson, 367 Mich. 1; 116 N.W.2d 60 (1962).

We find no abuse of the trial court's discretion in refusing to give the requested standard jury instruction. Plaintiff's assertion of privilege constituted a "reasonable excuse" for failure to present the witness's testimony. The instruction was, therefore, inapplicable and defendants had no right to its inclusion in the court's final charge to the jury.

VI

Defendants allege several other instructional errors. While defense counsel made numerous timely objections to the jury instructions, in order to preserve these issues for appellate review he was obliged to state specifically the matters to which he objected and the grounds of his objections. GCR 1963, 516.2; Kotila v McGinty, 28 Mich. App. 396; 184 N.W.2d 462 (1970). Although the requirements of GCR 1963, 516.2 were not met in this case, we have, nonetheless, carefully reviewed the allegations of instructional error to assure that defendants have not suffered manifest injustice. Cf. Howard v Feld, 100 Mich. App. 271; 298 N.W.2d 722 (1980). In only one respect are we persuaded that the instructions were manifestly unjust.

Pursuant to MCL 600.2907; MSA 27A.2907, the jury was instructed that in assessing damages against the four malicious prosecution defendants, the total amount of malicious prosecution damages suffered by plaintiff at the hands of each of these individual defendants should be trebled.

Later in the charge, the court explained what it called the concept of "exemplary" damages. This instruction echoed the following rule described by the Supreme Court in Scripps v Reilly, 38 Mich. 10, 23 (1878):

"Where, however, the elements exist in a case, entitling a party to recover damages for injured feelings, the amount to be allowed for shame, mental anxiety, insulted honor, and suffering and indignation consequent on the wrong, may be increased or aggravated by the vindictive feelings, or the degree of malice, recklessness, gross carelessness or negligence of the defendant, as the injury is much more serious where these elements, or either of them, are shown to have existed."

The Supreme Court noted that these damages must be considered "actual damages, although usually spoken of as exemplary, vindictive or punitory". Scripps, p 24. See Ray v Detroit, 67 Mich. App. 702; 242 N.W.2d 494 (1976), lv den 397 Mich. 828 (1976); Kewin v Massachusetts Mutual Life Ins Co, 409 Mich. 401, 419; 295 N.W.2d 50 (1980), reh den 409 Mich. 1116 (1980).

As charged, the jury was permitted to include "exemplary" damages in its initial assessment of malicious prosecution damages and to treble the entire actual (including "exemplary") damage determination. Defendants argue that the jury was thus improperly permitted to award double "exemplary" damages. We agree.

In LaLone v Rashid, 34 Mich. App. 193; 191 N.W.2d 98 (1971), lv den 386 Mich. 756 (1971), this Court, construing MCL 600.2907; MSA 27A.2907, held that the plaintiff in a malicious prosecution action must elect to have the jury include within its actual damages determination the amount of "exemplary" damages suffered by the plaintiff, in which case the statutory trebling provision would not apply, or to have the trebling of "non-exemplary" actual damages compensate the plaintiff for his or her "exemplary" damages. The rationale for this construction of the statute was recently described by Judge BASHARA:

"By allowing a trebling of the jury verdicts pursuant to the statute, two enhancements of the damages awards would be permitted plaintiffs on what, in effect, is the same policy consideration. The jury would be allowed to enhance the verdict based on the vague concept of injured feelings due to defendant's outrageous conduct. Plaintiffs would also receive a second enhancement pursuant to the statute which presumably expresses the legislative determination that a defendant should be punished for its outrageous conduct in a malicious prosecution action. Damages should bear some relationship to the harm actually committed and not be totally arbitrary, even where defendant has engaged in the most vile type of conduct." Rivers v ExCell-O Corp, 100 Mich. App. 824, 842-843; 300 N.W.2d 420 (1980) (BASHARA, J., dissenting).

We adopt this construction of MCL 600.2907, and, therefore, vacate the four $1,500 jury awards against each of the malicious prosecution defendants. We remand to the circuit court, where plaintiff shall have the option of electing to proceed to a new trial on the malicious prosecution count, but limited only to the issue of damages, or of filing a written consent to a judgment in the amount of $500 as to each of these four defendants on the malicious prosecution count. Plaintiff's consent to the remittiturs shall be filed within ten days of the effective date of this opinion. See LaLone v Rashid, supra. Cf. GCR 1963, 527.6.

VII

Each of the defendants challenges the award to plaintiff of attorney's fees in the amount of $8,231.66. The award was made pursuant to 42 U.S.C. § 1988, which provides in part:

"In any action or proceeding to enforce a provision of * * * [ 42 U.S.C. § 1983] the court, in its discretion, may allow the prevailing party * * * a reasonable attorney's fee as part of the costs."

The trial court in this case found that a reasonable attorney's fee for all of the services rendered by plaintiff's attorney would be $24,695. Only two of plaintiff's six claims, however, were predicated on § 1983. Accordingly, the court awarded attorney's fees to plaintiff in the amount of $8,231.66 — two-sixths of $24,695.

We find no abuse of the trial court's discretion in its award of attorney's fees to plaintiff. Dawson v Pastrick, 600 F.2d 70, 79 (CA 7, 1979). Since we vacated the § 1983 award against the city, however, we remand to the circuit court for recalculation of the attorney's fee. The court shall determine a reasonable attorney's fee, if any, due plaintiff for his partially successful prosecution of § 1983 claims. The fact that plaintiff's § 1983 success was only partial would not automatically preclude an assessment of attorney's fees in his favor against those defendants found liable to him under § 1983. Scheriff v Beck, 452 F. Supp. 1254 (D Colo, 1978); Sethy v Alameda County Water Dist, 602 F.2d 894 (CA 9, 1979), cert den 444 U.S. 1046; 100 S Ct 734; 62 L Ed 2d 731 (1980). If plaintiff elects to retry his § 1983 claim against the city and he prevails in that action, he may petition the court for an additional allowance of reasonable attorney's fees under 42 U.S.C. § 1988.

I would affirm in part, reverse in part, and remand for proceedings consistent herewith.