Charles v. Town of Jeanerette, Inc.

• Decision Date: 30 April 1970
• Docket Number: No. 3022,3022
• Citation: 234 So.2d 794
• Parties: Mrs. Blanche Mae CHARLES et al., Plaintiffs-Appellants, v. TOWN OF JEANERETTE, INC., et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 794

234 So.2d 794

Mrs. Blanche Mae CHARLES et al., Plaintiffs-Appellants, v. TOWN OF JEANERETTE, INC., et al., Defendants-Appellees.

No. 3022.

Court of Appeal of Louisiana, Third Circuit.

April 30, 1970.

Rehearing Denied May 27, 1970.

Charles H. Finley, Lafayette, for plaintiff-appellant.

Wilbur L. Allain, Jeanerette, Mouton, Champagne & Colomb, by Patrick L. Colomb, Lafayette, for defendants-appellees.

Before FRUGE , HOOD, and MILLER, JJ.

HOOD, Judge.

This is a tort action instituted by Mrs. Blanche Mae Charles, individually and as Natural Tutrix for her five minor children, to recover damages for the wrongful death of plaintiff's husband, Clifford Charles, Jr. The defendants are the Town of Jeanerette, Louisiana, and Nolan J. Landry, a police officer employed by that community. The trial judge rendered judgment in favor of plaintiff and against defendant Landry, but he rejected plaintiff's demands against the Town of Jeanerette. Plaintiff has appealed. Neither of the defendants has answered the appeal.

Since Landry has not appealed or answered the appeal, the judgment which was rendered against him is final insofar as it decrees liability on his part. The principal issues presented on this appeal are whether plaintiff also is entitled to recover against the Town of Jeanerette, and whether the amount of the award should be increased.

Prior to the institution of this suit a Concurrent Resolution was adopted by both houses of the Louisiana Legislature authorizing the filing of this action against the Town of Jeanerette, and waiving the town's immunity from suit and liability insofar as this suit is concerned.

The incident which resulted in the death of plaintiff's husband occurred about 2:30 A.M. on July 31, 1965, at or near the decedent's home in St. Mary Parish. The Town of Jeanerette is located in Iberia Parish, and on the extreme east side of that parish, the east corporate limits of the town coinciding with the eastern boundary of Iberia Parish. U.S. Highway 90 runs generally east and west through the middle of the town. Trappey Street, running north and south, adjoins or connects with the south side of Highway 90, in the Town of Jeanerette, the junction of these two thoroughfares forming a 'T' intersection. This intersection is located four blocks, or three-tenths of a mile, west of the east corporate limits of the Town of Jeanerette.

The decedent, Charles, lived with his wife and their children in Sorrell, a small hamlet or community in St. Mary Parish, his residence being located more than three miles east of, and outside, the corporate limits of the Town of Jeanerette.

On May 11, 1965, Nolan J. Landry was duly appointed or employed by the Mayor and Board of Aldermen of the Town of Jeanerette to serve as a police officer for that community. He was on duty as a police officer of that town on the night of July 30, and during the early morning hours of July 31, 1965.

At about 2:30 A.M. on the last mentioned date, the decedent drove his automobile north on Trappey Street, in Jeanerette, to the intersection of that street with Highway 90. He brought his car to a stop at that crossing, and then turned to his right and proceeded east on Highway 90 toward his home. Immediately after the turn was made, the decedent 'speed shifted' his car into second gear, caused his wheels to spin, and began traveling at an excessive rate of speed. Officer Landry, who at that time was parked in a service station near the intersection, followed Charles in his police unit, his purpose being to overtake and to arrest him for speeding. Landry continued to pursue the decedent beyond the corporate limits of the town into St. Mary Parish. During this pursuit the vehicles traveled at speeds of up to 90 miles per hour.

When Charles reached his home, more than three miles east of Jeanerette, he turned into his driveway and brought his car to a stop in that driveway near the rear of the house. Shortly thereafter Officer Landry drove into the same driveway, and parked his police vehicle about 20 feet behind the decedent's car. By that time the decedent had gotten out of his car and was walking from that vehicle toward the front porch of his home.

Landry testified that immediately after he arrived he got out of his police car and began walking toward the front porch of the house, shining his flashlight on Charles as he did so, and that he ordered the decedent twice to show his driver's license. He stated that when the second such order was given Charles 'went into his right pocket, front pocket, and he came out in a forward motion throwing at me,' that the object thrown by Charles passed by Landry's head, and that Landry thereupon drew his pistol and fired. The bullet struck Charles above the left eye, and he died about four hours later as a result of that wound. Landry testified that when he fired his pistol he did not intend to shoot Charles, but that instead he meant to shoot 'over his head.'

A careful search of the premises was made after the incident occurred, but no knife or other object was found which might have been thrown by the decedent. The trial judge concluded that Charles did not throw anything at Officer Landry, but that he did thrust his hand into his pocket and that Landry interpreted that as a threatening gesture. We agree with that conclusion.

The trial judge held that defendant Landry was negligent in using force far in excess of that which would have been reasonable and necessary, and that Landry thus is liable in damages to plaintiff. He also held that the Town of Jeanerette was free from primary negligence, and that it was not liable under the doctrine of respondeat superior, because the acts of Officer Landry were 'ultra vires' and without authority. For these reasons judgment was rendered condemning Landry to pay damages, but rejecting plaintiff's demands against the Town of Jeanerette.

Plaintiff alleges several grounds on which she bases her claim that the Town of Jeanerette was guilty of primary negligence. These grounds, briefly summarized, are that the town employed an unqualified officer, that it knew or should have known that he was incompetent, that it failed to provide training and supervision for that officer, that it allowed the new officer to be on duty alone, that it failed to instruct Landry as to the laws which a police officer must observe, and that it failed to provide him with the proper equipment.

The evidence shows that several years prior to the time he became a police officer for the Town of Jeanerette, Landry served in the United States Army, and was assigned to duty with the Army Stevedores. In that capacity he received training as a guard, which included basic training in the use of firearms, and the handling, assembling and disassembling of weapons. After his discharge from the Army, he joined the local Civil Defense unit and while working with that organization he received instructions in riot control, policing the streets, and the maintenance and firing of weapons. His instructors were officers or representatives of the State Police and the National Rifle Association. His training included both classroom instruction and field instruction, and be served with the Civil Defense for approximately one and one-half years prior to being employed by the Town of Jeanerette.

Landry also rode in a police vehicle with one of the regularly employed officers of the Town of Jeanerette on night shift duty for one to three nights per week for a period of more than one year prior to the time he was employed by the town. One of the officers with whom he regularly rode testified that Landry was an extremely inquisitive person, that he asked many questions about making arrests and the duties of a police officer, and that this officer answered all of Landry's questions to the best of his ability. When the Town of Jeanerette found that it needed an additional police officer, several persons made application for the job. The Mayor and the Board of Aldermen inquired carefully into the qualifications and ability of each of the applicants, and Landry was considered by them to be the best qualified applicant for the job.

We find, as did the trial judge, that the Town of Jeanerette acted reasonably and cautiously in employing Landry, and that the town was justified in assuming that the training which Landry had received was sufficient to qualify him to perform the duties of a police officer for that municipality. We agree with the trial judge that the evidence fails to support plaintiff's contention that Landry was not furnished with suitable equipment and safety devices, or that he was not properly instructed as to his rights, duties and responsibilities as a police officer. Our conclusion is that the Town of Jeanerette was not guilty of any acts of primary negligence which proximately caused the death of plaintiff's husband.

We turn now to the question of whether the trial judge erred in holding that the Town of Jeanerette was not liable under the doctrine of respondeat superior. The town contends that it is not liable in damages for the negligent act of its police officer, Landry, under the doctrine of respondeat superior, because Landry's act in shooting Charles was not committed in the course and scope of his employment and was an ultra vires act for which the Town of Jeanerette may not be held responsible.

All parties concede that Landry, a police officer of the Town of Jeanerette and while on duty as such, began pursuing Charles within the corporate limits of the town for the purpose of arresting Charles for violation of a town ordinance prohibiting speeding. Charles had almost reached the corporate limits of the Town of Jeanerette when Landry began his pursuit. The chase took Landry outside the town limits, which coincided with the Iberia-St. Mary Parish line, to the home of the decedent, which was situated at least three miles from the corporate limits of Jeanerette,...