739 F.2d 993
John Russell WEBSTER, et al., Plaintiffs-Appellees, Cross-Appellants,
v.
The CITY OF HOUSTON, Defendant-Appellant, Cross-Appellee.
No. 81-2007.
United States Court of Appeals,
Fifth Circuit.
Aug. 9, 1984.
David L. Crawford, James K. Gardner, Timothy James, Houston, Tex., for defendant-appellant, cross-appellee.
Harvil & Hardy, Scott A. Sanes, G.P. Hardy, III, Houston, Tex., K. Michael Mayes, Conroe, Tex., for plaintiffs-appellees, cross-appellants.
Appeals from the United States District Court for the Southern District of Texas.
ON PETITION FOR EN BANC REHEARING
Before CLARK, Chief Judge, BROWN, GOLDBERG, GEE, RUBIN, REAVLEY, RANDALL, TATE, JOHNSON, WILLIAMS, GARWOOD, JOLLY and HIGGINBOTHAM, Circuit Judges.*
PER CURIAM:
Plaintiff-Appellee John Russell Webster, et al., has petitioned for rehearing and, thereupon, that we limit the remand to the issue of damages. Upon reconsideration we conclude that the Websters should not be penalized, nor their attorneys or the trial judge faulted, for the jury instructions that lacked the refinements of our formulation to govern the imposition of municipal liability stated in the prior en banc opinion of this case (735 F.2d 838, 841) and our recent writing in Bennett v. City of Slidell, 728 F.2d 762 (5th Cir.1984) (en banc). From the proof made, this jury could have found liability under the instructions given.
For the above reasons, we grant rehearing to the following extent: (1) we affirm the judgment as to liability against the city; (2) we reverse the judgment as to damages for the reasons given by the panel, 689 F.2d 1220, 1228; and (3) costs are adjudged against the City of Houston. In all other respects the petition for rehearing is denied. No further petition will be entertained and the mandate shall issue forthwith.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
Judge Henry A. Politz is recused. Judges W. Eugene Davis and Robert M. Hill were not members of the court when this case was submitted to the court en banc and did not participate in this decision