Bourque v. Lohr

• Decision Date: 28 May 1971
• Docket Number: No. 3382,3382
• Citation: 248 So.2d 901
• Parties: E. J. BOURQUE, Plaintiff-Appellant, v. Bobby LOHR et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 901

248 So.2d 901

E. J. BOURQUE, Plaintiff-Appellant, v. Bobby LOHR et al., Defendants-Appellees.

No. 3382.

Court of Appeal of Louisiana, Third Circuit.

May 28, 1971.

Dissenting Opinion May 31, 1971.

Rehearing Denied June 25, 1971.

McBride & Brewster, by Robert R. McBride, Lafayette, for plaintiff-appellant.

Milton LeBlanc, Jr., Caffery, Duhe & Davis, by W. Eugene Davis and L. Albert Forrest, New Iberia, for defendants-appellees.

Before SAVOY, HOOD and CULPEPPER, JJ.

CULPEPPER Judge.

Plaintiff, E. J. Bourque, instituted this suit for damages for personal injuries sustained by him as the result of a battery allegedly committed on him by officers Bobby Lohr and Francis Viator of the New Iberia City Police Force. The defendants are Lohr, Viator and The Travelers Indemnity Company, the city's liability insurer. A third party demand was filed by Travelers against the other two defendants. Judgment was rendered by the trial court in favor of plaintiff and against Lohr, but rejecting plaintiff's demands against Viator and Travelers, and dismissing Travelers' third party demands. Plaintiff has appealed.

Since defendant Lohr has neither appealed nor answered the appeal, the judgment of the district court is final insofar as it decrees liability on his part.

The issues presented are, first, whether Viator and Travelers are also liable to plaintiff for the damages he sustained, and second, whether the award made by the trial court is adequate.

Officers Lohr and Viator had been assigned to perform patrol duty from 9:00 p m. on February 21 to 5:00 a.m. on February 22, 1964. While on duty, they overheard a police radio transmission advising that a fight had occurred at Fred's Lounge, in New Iberia, between plaintiff Bourque and Lloyd Lohr, the younger brother of defendant, Bobby Lohr.

At or shortly before 5:00 a.m. on February 22, the two policemen returned to the police station, logged in as having completed their assigned tour of duty, and then left the station in Lohr's personal car for the avowed purpose of returning to their respective homes. Both of them were still in uniform and were wearing side arms as they left the police station.

While en route to their homes, Lohr stopped his car at Fred's Lounge and entered the barroom, where he found his younger brother engaged in a card game with plaintiff Bourque and others. Viator remained in the automobile for three or four minutes after Lohr entered the building, and he then left the car and also went into the barroom. While inside, defendant Lohr inquired about the fight, and was informed by his brother that it was over, that he and plaintiff had settled their differences and that they now were friends. As Lohr was about to leave, however, plaintiff made a remark which Lohr interpreted as being insulting to him, so he informed plaintiff that he was under arrest. Plaintiff then peaceably got into the back seat of Lohr's automobile, with Lohr and Viator occupying the front seat, and Lohr began driving his car toward the city jail.

When they reached a point about five blocks from Fred's Lounge, Lohr stopped his car, ordered plaintiff out of it, and he and plaintiff then became engaged in a fight on the street, immediately behind the automobile. Plaintiff was injured in that fight, and it is for those injuries that he now seeks to recover damages. Immediately after the fight ended, plaintiff was ordered back into the car and he then was taken to his home. He was never taken to jail, and no charges were preferred against him arising out of any of the above mentioned incidents.

Plaintiff argues that the trial judge erred in finding that defendant Viator was free from fault. He contends that Viator participated in the fight by striking plaintiff on the back of the head while plaintiff was involved in the above described altercation with Lohr. He also contends that even if Viator did not actually strike him, Viator nevertheless is liable for damages because of his failure to protect Bourque or to intervene in his behalf while the injuries were being inflicted by Lohr.

Bourque testified that he saw Viator get out of the car and walk toward the back of it while Lohr was hitting plaintiff, and that he 'felt' Viator strike him in the back of the head while plaintiff was using his hands to protect his face from the blows being struck by Lohr. Plaintiff concedes, however, that he did not see Viator swing at him or make an aggressive move in his direction.

Viator testified that he remained in the automobile after Bourque and Lohr got out of it immediately before the fight began, and that shortly after the other occupants got out he looked through the rear window of the car and saw 'fists flying.' He stated that he thereupon got out of the car, went to the back of it and upon his arrival there he found plaintiff lying on the ground. He insists that he did not strike plaintiff in 'no kind of way.' Lohr's testimony supports Viator's statement that plaintiff was on the ground when Viator arrived at the scene of the fight. The evidence shows that the altercation between plaintiff and Lohr did not last more than 30 seconds.

The trial judge found that Viator took no part in the arrest of plaintiff, that he did not participate in the fight which occurred after the parties left Fred's Lounge and that he did not strike plaintiff at any time. In his reasons for judgment the court said, '* * * the record is completely void of any evidence which would indicate that 'Officer Viator participated in any way or that he conspired or encouraged the fistic encounter between John Lohr and E. J. Bourque. And, therefore, under no theory can Mr. Viator be held responsible for the incident or the damages which Mr. Bourque has allegedly sustained.'

The record supports these findings of the trial judge. Furthermore, Viator did not have an opportunity to intervene or to protect Bourque at any time before the injuries were inflicted upo him. We thus find no error in that part of the judgment appealed for which decrees that defendant Viator is not liable to plaintiff for any of the damages which he claims in this suit.

The next issue is whether the city's insurer is liable. Our jurisprudence is settled that the employer of a police officer is liable for wrongful injury inflicted while performing his official duties, Taylor v. City of Baton Rouge, 233 So.2d 325 (La.App.1st Cir . 1970) writ of certiorari refused; Robertson v. Palmer, 55 So.2d 68 (La.App.1st Cir. 1952) writ of certiorari refused; Britt v. Merritt, 219 La. 333, 53 So.2d 121 (1951); Sanders v. Humphries, 143 La. 43, 78 So. 168; Gray v. De Bretton, 184 So. 390 (La.App.1st Cir. 1938). In the present case, the defendant insurer is liable if Officer Lohr was discharging the duties of his employment at the time the wrongful injury was inflicted.

As stated above, the facts are that Officer Lohr had placed plaintiff under arrest and was taking him to jail at the time of the incident in question. Plaintiff understood that he was under arrest and submitted peacefully.

There is a conflict in the testimony as to exactly what happened on the way to the jail. Officer Lohr says plaintiff became belligerent so he stopped the car to put handcuffs on him. Plaintiff says he was quiet and said absolutely nothing. Viator testified there was a 'loud conversation.' In any event, Officer Lohr suddenly stopped the car and ordered plaintiff out. Lohr says the plaintiff came out swinging and the fight ensued. Officer Viator testified he saw no blows struck until the fight started behind the car. Both officers admit that no attempt was ever made to put handcuffs on the plaintiff. After a severe beating, plaintiff was not taken to jail. Instead, he was taken to his home.

Under these facts, it is clear that the wrongful injuries were inflicted while Officer Lohr was performing his duties as a city policeman. He had the authority and the duty to arrest plaintiff for an offense committed in his presence, Code of Criminal Procedure, Art. 213. The prisoner was in his custody and was being taken to jail at the time of the battery.

In finding that Officer Lohr was not performing his official duty, the trial judge first stressed the fact that it was not during Lohr's regular hours of duty. We cannot agree that this is a substantial factor in the present case. Under Code of Criminal Procedure, Art. 213 a peace officer can make an arrest without a warrant for an 'offense' committed in his presence. We find no statutory or jurisprudential rule that the officer must be on regular hours of duty. It would be a serious handicap to law enforcement to adopt a rule that an arrest is unauthorized if the officer is not on his regular duty shift. In this case, the officer was in full uniform, with side arms, and had both the apparent and actual authority to make the arrest and take plaintiff into custody.

The trial judge next stresses the fact that Officer Lohr had not been called or instructed to investigate any incident at Fred's Lounge. We think this is immaterial. An officer has not only the right but the duty to make arrests for offenses committed in his presence, regardless of whether he has been called or instructed to investigate that particular matter.

Additionally, the trial court expressed the opinion that Officer Lohr 'stopped at Fred's Lounge for the specific purpose as heretofore determined of taking revenge upon the plaintiff for the earlier beating administered to his younger brother; a reason purely personal to him.' The district court then cited several cases for the proposition that an employer is not responsible for the intentional torts of his employee, committed purely for personal reasons and not for the purpose of carrying out the duties of his employment.

For instance, in Comfort v. Monteleone Hotel, 163 So. 670 (La.App.Orl.1935) a hotel detective, while on the hotel premises, struck and beat the plaintiff, with whom he had previous...