Bell v. City of Milwaukee

• Decision Date: 04 June 1981
• Docket Number: Civ. A. No. 79-C-927.
• Citation: 514 F. Supp. 1363
• Parties: Patrick BELL, Sr., Special Administrator of the Estate of Daniel Bell, Deceased, and in his own behalf, et al., Plaintiffs, v. CITY OF MILWAUKEE, et al., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

514 F. Supp. 1363

Patrick BELL, Sr., Special Administrator of the Estate of Daniel Bell, Deceased, and in his own behalf, et al., Plaintiffs, v. CITY OF MILWAUKEE, et al., Defendants.

Civ. A. No. 79-C-927.

United States District Court, E. D. Wisconsin.

June 4, 1981.

Jerome D. Krings, Thomas M. Jacobson, Alan Derzon, Curry First and Walter F. Kelly, Milwaukee, Wis., for plaintiffs.

Rudolph M. Konrad, Asst. City Atty., Milwaukee, Wis., for defendants City of Milwaukee, Milwaukee Police Dept., Howard Johnson, and Edwin Shaffer.

Robert G. Ott, Principal Asst. Corp. Counsel, Milwaukee, Wis., for defendants Milwaukee County and Office of Milwaukee County Dist. Atty.

Franklyn M. Gimbel, James M. Fergal, Milwaukee, Wis., for defendant Grady.

DECISION AND ORDER

REYNOLDS, Chief Judge.

On April 3, 1981, oral argument was held in the above-captioned action on the motion for summary judgment brought by the defendants City of Milwaukee, Howard Johnson, Thomas Grady, Jr., Edwin Shaffer, the Milwaukee Police Department, Milwaukee County, and the Office of Milwaukee County District Attorney. Following oral argument, the Court denied from the bench the defendants' motion for summary judgment and stated that the reasons for the Court's ruling would be set forth in a decision which would follow at a later date. This constitutes the Court's decision denying the foregoing named defendants' motion for summary judgment.

This action arises out of the fatal shooting of Daniel Bell on February 2, 1958, by defendant Thomas Grady, Jr., who at the time of the shooting was a City of Milwaukee police officer. The action was commenced in October 1979, by Patrick Bell, Sr., who is the special administrator of the estate of Daniel Bell, Daniel Bell's father Dolphus Bell, and Daniel Bell's twelve surviving brothers and sisters. Named as defendants in addition to Grady are the City of Milwaukee, Howard Johnson, Edwin Shaffer, the Milwaukee Police Department, Milwaukee County, and the Office of Milwaukee County District Attorney.

I. FACTS UPON WHICH THE MOTIONS FOR SUMMARY JUDGMENT ARE BASED

The following relevant facts are not in dispute for purposes of deciding the defendants' motion for summary judgment.

The shooting of Daniel Bell spurred, inter alia, an investigation by a Milwaukee County coroner's jury. That inquest was held by Deputy Medical Examiner J. A. LaMonte on February 14, 1958. Present at the inquest besides LaMonte were District Attorney William McCauley, Assistant District Attorney Hugh O'Connell, Bell family attorneys Milton Murray and George Hamilton, and Bell family members Sylvia White Bell, Joseph Bell, and Walter Bell.

The transcript of that inquest reveals that many witnesses were summoned by LaMonte, McCauley and O'Connell. Both patrolman Thomas Grady, Jr. and his partner Louis Krause testified. The patrolmen who arrived on the scene after the shooting also testified, which included Carl R. Nelson, Louis Demke, John R. Randa, Paul Bucholtz, Harold W. Hauke, and George A. Timm. The police officers who conducted the internal police department investigation also testified, which included detective Russell Vorpagel, detective Howard T. Hughes, and detective sergeant Edwin S. Shaffer. Several civilian witnesses testified, including Eugene Bradshaw, Wesley McCloud, Jr., Fanny Mae Boss, Anna Mae Hardman, Charles W. Avery, Edward Hammond, and William Hochstaetter. Also testifying at the inquest were John L. Warnette, Superintendent of the Wisconsin Crime Lab Charles M. Wilson, and Milwaukee County Medical Examiner Dr. L. J. VanHecke. (Ex. 25 to defendants' motion for summary judgment)¹

The transcript of that inquest further reveals the examination of those witnesses by LaMonte, McCauley, and O'Connell. Patrolman Nelson testified that upon his arrival at the scene he had observed that (1) Daniel Bell's body was face down; (2) Daniel Bell's right hand held a knife; (3) Daniel Bell's fingers were flexed at the knuckles, but not flexed tightly; and (4) Daniel Bell's thumb pointed straight up. (Ex. 25 at 16-17) Patrolman Randa testified that upon his arrival at the scene he had observed that Daniel Bell's fingers were loosely flexed and pointing down toward the palm of his hand. (Ex. 25 at 29) Patrolman Timm testified that upon his arrival at the scene he had observed that (1) Daniel Bell's hand held a knife; (2) Daniel Bell's palm of his right hand was pointing down; and (3) Daniel Bell's fingertips were resting on the ground. (Ex. 25 at 121)

Detective Vorpagel testified that Grady had stated that he had shot Daniel Bell from the street, standing five feet from the east curb. Detective Vorpagel further testified that the distance from the spot where the shot was fired to the spot where Daniel Bell's head was marked on the sidewalk was 23 feet, 9 inches. (Ex. 25 at 46-47) Detective Sergeant Edwin Shaffer testified that Grady had stated that he had shot Daniel Bell from a distance of six feet. (Ex. 25 at 70)

Eugene Bradshaw testified that at the time of the shooting it had appeared as though Grady was close enough to catch Daniel Bell; he further testified that he had walked to the scene of the shooting and had not seen a knife. (Ex. 25 at 89-90) Wesley McCloud, Jr., testified that at the time of the shooting Grady was almost behind Daniel Bell. (Ex. 25 at 108-109) Edward Hammond testified that at the time of the shooting, Grady was fifteen feet from Daniel Bell. (Ex. 25 at 173) William Hochstaetter testified that after the shooting he had viewed Daniel Bell's body from a distance of two feet; he further testified that he had observed that (1) Daniel Bell's hands were outstretched, flat, and open; (2) Daniel Bell's hands held no object; (3) no objects were near Daniel Bell's body; and (4) two police officers had bent over Daniel Bell's body. (Ex. 25 at 191-193)

Superintendent of the Wisconsin Crime Lab Charles Wilson testified that, based on his examination of the physical evidence, it was his opinion that the muzzle of Grady's gun had been in contact with Daniel Bell's topcoat at the time of the shooting and that the gun had not been fired from a distance of fifteen to twenty-three feet. (Ex. 25 at 206) Dr. VanHecke testified that based on his autopsy, it was his opinion that the gunshot wound had been the cause of Daniel Bell's death. (Ex. 25 at 208-209)

On August 10, 1959, Daniel Bell's father, Dolphus Bell ("Dock Bell"), filed a claim with the City of Milwaukee, asking for damages in the amount of $18,125.00 for the wrongful death of his son.² That claim was denied by the City of Milwaukee. (Ex. 1) Subsequently, on February 1, 1960, Dock Bell commenced an action in Milwaukee County Circuit Court for the wrongful death and indemnification pursuant to then § 270.58, Wis.Stats. (1957), against Thomas Grady and the City of Milwaukee, asking for damages in the amount of $18,125.00.³ (Ex. 2) The defendants Grady and the City of Milwaukee answered the action on March 1, 1960 claiming, inter alia, that the shooting of Daniel Bell by Grady had been in self-defense. (Ex. 4)

Dock Bell's state court action was commenced before Judge Michael T. Sullivan on September 13, 1961, (Ex. 12), and resulted in a mistrial. Id.

Dock Bell's action was then reassigned for trial to Judge Robert L. Landry. (Ex. 8) In the words of the attorney for Dock Bell, Max Raskin, the following events took place:

"The trial of the case was scheduled to begin on October 10, 1961. Plaintiff and his two adult daughters, one of whom being Mrs. Sylvia White with whom plaintiff resided during the period of the trial, at 2918 North Palmer Street, Milwaukee, Wisconsin, were at all times mentioned in this affidavit present in the court room of Judge Robert Landry.

"Following inquiry of counsel for plaintiff and defendants by Judge Landry whether there exists the possibility of settlement, Judge Landry began conciliation efforts to amicably dispose of the case. Such efforts culminated in an offer of settlement of One Thousand Eight Hundred ($1,800.00) Dollars made by the defendants to the plaintiff.

"Affiant thereupon explained the offer of settlement to the plaintiff and his two daughters and advised them that the offer was reasonable in view of the difficulties of proof to be encountered by the plaintiff to establish his case. The affiant further explained that should plaintiff accept he will be required to pay out of said sum of One Thousand Eight Hundred ($1,800.00) Dollars attorney fees in the amount of Six Hundred ($600.00) Dollars. Affiant further explained that his acceptance of the offer will mean that he will fully and forever discharge defendants from any further claim that he may have as a result of the death of his son Daniel Bell.

"Judge Robert Landry thereupon requested that the plaintiff state in open court whether he is willing to accept the sum of One Thousand Eight Hundred ($1,800.00) Dollars, and the plaintiff stated that he is so willing.

"An oral stipulation for dismissal of the action upon the merits was entered into by the attorneys in the presence of their respective parties before Judge Robert Landry." (Ex. 11)

This oral stipulation for dismissal was reduced to writing, and was presented to Dock Bell for his signature, as a condition for payment of the settlement. Id. Because Dock Bell refused to sign the release or otherwise to cooperate with Attorney Raskin, Attorney Raskin moved Judge Landry for an order to show cause why the defendants should not deposit with the Clerk of Circuit Court the sum agreed upon between the parties as being in full settlement of Dock Bell's claims and why Attorney Raskin should not receive his attorney fees out of this sum. Id.

On November 21, 1961, Judge Landry issued an order in response to Attorney Raskin's order to show cause. (Ex. 12) Judge Landry found, inter alia, that the order to show cause had been personally served on Dock Bell, that Dock Bell had failed to appear for the hearing, that ...