Cheatham v. City of New Orleans

• Decision Date: 01 November 1979
• Docket Number: No. 64442,64442
• Citation: 378 So.2d 369
• Parties: Sheryl CHEATHAM, wife of Charles Cheatham, Individually and on behalf on her minor son, Charles Cheatham, Jr. v. CITY OF NEW ORLEANS, Daniel DeNoux and Stephen Reboul.
• Court: Louisiana Supreme Court

Page 369

378 So.2d 369

Sheryl CHEATHAM, wife of Charles Cheatham, Individually and on behalf on her minor son, Charles Cheatham, Jr. v. CITY OF NEW ORLEANS, Daniel DeNoux and Stephen Reboul.

No. 64442.

Supreme Court of Louisiana.

Nov. 1, 1979.

Rehearing Denied Jan. 11, 1980.

Louis B. Merhige, Wayne G. Cresap, New Orleans, for defendant-respondent.

Mack E. Barham, Barham & Churchill, David J. Dennis, Ernest L. Jones, Cotton, Jones & Dennis, New Orleans, for plaintiff-applicant.

Donald A. Hoffman, City Atty., Debra J. Fischman, Asst. City Atty., for defendant-respondent, City of New Orleans.

CALOGERO, Justice.

Charles Cheatham's widow filed a wrongful death action on behalf of herself and her two and one-half year old son, against the City of New Orleans and two New Orleans police officers, Daniel DeNoux and Stephen Reboul. There was a single bifurcated trial, the claim against the two officers being decided by a jury and the claim against the City being decided by the trial judge. ¹ The jury found that the two officers acted negligently, causing the wrongful death of Charles Cheatham, and that Mr. Cheatham had not been contributorily negligent. They awarded Mrs. Cheatham a total of $529,000 in damages and the minor child a total of $125,000, against the officers. The judge held that the City of New Orleans was also liable since the officers were acting within the course and scope of their employment in connection with the incident. He cast the City in solido with the two officers for damages in the same sums as had the jury. Defendants appealed. The Court of Appeal reversed in part, holding only one officer liable (Daniel DeNoux), exonerating the City and the other officer (Stephen Reboul), and substantially reducing plaintiffs' recovery. We granted writs upon the application of plaintiffs to consider whether the Court of Appeal erred in exonerating one of the officers and the City, and in reducing plaintiffs' damage awards.

The facts and certain of the testimony are essentially as follows:

About midnight, April 11, 1975, Officers DeNoux and Reboul, off-duty and in plain clothes on this occasion, were with their friend, Richard Schilling, walking down Bourbon Street, each carrying a drink. As they neared Toulouse Street, they were approached by a young shoe-shine boy, who with some persistence, tried to persuade them to have their shoes shined. The officers became irritated and a verbal altercation ensued. Becoming even more irritated by the boy's responses Officer Reboul began to manhandle him. The shoe-shine boy, Flem Ballett, testified that Charles Cheatham, an adult male unrelated to the principals in the altercation, then came upon the scene and intervened on the youth's behalf. Ballett further testified that it was one of the officers who threw the first punch; that both officers were punching and kicking Cheatham; one officer stepped back and the other officer and Cheatham fell to the ground; as Cheatham started to get up off the ground, the officer who had stepped back shot him. Ballett testified that Cheatham did not have a gun in his possession at any time during the fight.

Joseph Baker is a cab driver who came over to the scene when he saw the grown men manhandling the boy. He testified that he and Cheatham came up at about the same time. The men did not identify themselves as police officers and forcefully told them both to move on as the affair was none of their business. At this time Cheatham responded that he was going to make it his business. Baker further testified that at that time one of the defendants asked the other to hold his drink for him and then reached out and struck Cheatham, thereby starting the fight. Baker did not see who fired the shot because he had turned around to get the keys out of his cab. Baker did testify that when he turned back around, upon hearing the gunshot, he saw Officer Reboul standing there with a gun in one hand and his identification in the other saying he was a policeman and for everyone to stay back.

Two other witnesses, Douglas Gaspard and Alfred Smith, basically confirmed the story above, that the officer threw the first blow and that the men did not identify themselves as officers. But these two witnesses identified Reboul as the person who pulled his gun and shot Cheatham.

Defendants Reboul and DeNoux gave a different account of what happened. They testified that they were instructing the shoe-shine boy to be on his way and to stop annoying them, when Cheatham came forward and began verbally abusing the officers in an obscene manner. They both testified that they there and then identified themselves as policemen, but that Cheatham continued to abuse them. When they threatened to arrest Cheatham, he turned as if he were leaving, but suddenly turned back, swung and struck Officer Reboul in the face. Then the fight ensued, with Reboul and Cheatham rolling on the ground. The officers further stated that during the scuffle, Cheatham came up with the gun which Reboul had been carrying and pointed it at Reboul's head. DeNoux then drew his gun, pointed it at Cheatham and instructed him to drop the gun. At this time, the officers testified, Cheatham suddenly swung the gun around and pointed it at DeNoux, at which time DeNoux shot Cheatham.

Defendants sought to corroborate their version of the episode by introduction of statements from two witnesses obtained in the police homicide investigation. The statements were admitted over defense objection. One of these witnesses had been found dead shortly after the shooting, and the other took the stand and repudiated the story that he had earlier given the investigator. Both of these witnesses had long criminal records which included convictions for felonies.

Unobjected to hearsay was admitted to the effect that ballistics tests established it was DeNoux's pistol that fired the bullet which was taken from Cheatham's body.

Richard Schilling, the officers' friend and companion on the night of the incident, an off-duty Jefferson Parish deputy sheriff also in plain clothes, testified that he could not say who did the shooting because he had his back turned from the fight and was not watching at that time.

Shortly after the shooting, the deceased was taken to the hospital where he remained alive for a couple of hours before he died. There were surgical attempts to save Cheatham's life, all to no avail. Cheatham apparently lost consciousness a few minutes after the shooting and never regained it.

In connection with the wrongful death and survival actions plaintiffs filed against DeNoux, Reboul and the City of New Orleans, all three defendants were represented by the office of the City Attorney, more particularly an assistant city attorney. It was his theory and that of his clients that Cheatham had been contributorily negligent in resisting a lawful arrest by the two New Orleans police officers.

The jury found that: (1) DeNoux and Reboul had been negligent; (2) their actions were the proximate cause of the death of Cheatham; and (3) Cheatham had not been contributorily negligent. The jury awarded $529,000 to Mrs. Cheatham, and $125,000 to Mrs. Cheatham as administrator for her son.

The trial judge imposed the same quantum by casting the City solidarily with DeNoux and Reboul since the latter were acting within the course and scope of their employment at the time of the shooting. Defendants' motion for a new trial, or alternatively for a reduction in damages, were denied by the trial judge.

DeNoux, Reboul and the City of New Orleans, still simultaneously represented by the City Attorney's office, appealed to the Fourth Circuit Court of Appeal reurging their lack of negligence and their defense of Cheatham's asserted contributory negligence (and of course, a plea for quantum reduction). On appeal, just as in the trial court, defendants (in particular the City) did not contend the police were not in the course and scope of their employment in connection with the incident. It was the Court of Appeal which suggested that the issue, course and scope, was a relevant one. Effectively the appeals court asserted an unpleaded defense for the City. The Court requested supplemental briefs on that issue. It was only at that time that the defendants employed separate attorneys and filed briefs on the issue of course and scope of employment. ² The City contended, of course, that the men were not in the course and scope of their employment in connection with the incident.

The Court of Appeal reversed in part the decision of the trial court. They held only DeNoux liable, relieving of liability both Reboul and the City. The Court reasoned that Reboul, although perhaps instigating the fight, did not perform an act which he could reasonably have foreseen would lead to a shooting, and that DeNoux, the officer they concluded shot Cheatham, was not acting in the course and scope of his employment at the time of the incident. In addition, the Court reduced the damages awarded by the jury. The Court of Appeal did affirm that part of the trial court judgment which found that DeNoux negligently caused the death of Cheatham and that Cheatham was not contributorily negligent.

This Court granted writs upon application of the plaintiffs to consider whether the Court of Appeal erred in reversing the trial court judgment in part and in reducing the awards. ³ The issues presented are: (1) whether the Court of Appeal erred in holding that Reboul was not liable for the wrongful death of Cheatham; (2) whether the Court of Appeal erred in considering an issue not raised by the parties and in holding that the officer and/or officers were not acting within the course and scope of their employment at the time of the shooting; and (3) whether the Court of Appeal erred in reducing the damages awarded by the jury. ⁴ We will consider each issue separately and in the order set forth above.

The first issue concerns the liability of Reboul (the...