City of Indianapolis v. Ervin, 2-678A203

• Decision Date: 29 May 1980
• Docket Number: No. 2-678A203,2-678A203
• Parties: CITY OF INDIANAPOLIS, Appellant (Defendant Below), v. Audrey ERVIN, Administratrix, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 55

405 N.E.2d 55

CITY OF INDIANAPOLIS, Appellant (Defendant Below), v. Audrey ERVIN, Administratrix, Appellee (Plaintiff Below).

No. 2-678A203.

Court of Appeals of Indiana, Second District.

May 29, 1980.

Rehearing Denied Aug. 27, 1980.

Sheila S. Suess, Corp. Counsel, William L. Soards, Soards & Carroll, Indianapolis, for appellant.

David W. Foley, Indianapolis, for appellee.

BUCHANAN, Chief Judge.

CASE SUMMARY

Defendant-appellant City of Indianapolis (City) appeals a $75,000 judgment in favor of Audrey Ervin, plaintiff-Administratrix of the Estate of Jewell Ervin (Ervin), who had been killed by Indianapolis police officers, the City claiming, inter alia, that the police officers only used reasonable and necessary force.

We affirm.

FACTS

The facts most favorable to the judgment reveal that in Indianapolis on the night of September 6, 1973, police Officer Armor stopped a vehicle matching the description he had received of a vehicle involved in a hit-and-run and property damage collision. He learned that the driver was Gerald Akers from his identification and registration for the vehicle.

Officer Armor then proceeded alone to the accident scene. After conferring with the officer at the scene, they decided to go to the address furnished by Akers to order him to appear at the police Hit and Run Office for further investigation the next morning.

Upon arriving at the residence the officers observed Akers' car in the driveway. They then knocked at the front door, and Mrs. Allen, Akers' mother-in-law, answered the knock. Subsequently Akers appeared, and in response to their request he consented to their further inspection of his vehicle. Because Mrs. Allen began to argue with the officers, Akers said he would go to the police station and settle it that night. Armor placed him in his police vehicle, then called a wrecker to tow in the car as evidence. At this time Sergeant Kryter was called to supervise.

Jewell Ervin, the deceased and a friend of Mrs. Allen's, came from the house and began a disturbance by yelling at the officers, calling them names, challenging them to fight, and throwing a brick or piece of cement at the wrecker. The officers called for assistance, which prompted Ervin, who was then standing on the front porch of the house, to shout that he was going to get his shotgun. The two officers then drew their pistols and entered the house. Ervin was ordered out of the house and told he was under arrest. He suddenly appeared at a bedroom doorway, grabbed Officer Armor, fought for the officer's gun, and succeeded in knocking him to the ground. Ervin then grabbed Kryter's night stick and began to swing it around hitting the officers. The officers finally subdued him and tried to apply handcuffs but upon hearing a disturbance at the front of the house Ervin resumed the fight. Ervin hit Officer Kryter with a night stick knocking him unconscious, saying that he would kill him. At that moment Officer Bastin, seeing a fellow officer in extremis, arrived to assist him. Ervin struck him with a night stick causing him to recoil. In response, Officer Bastin Audrey Ervin, widow of the deceased, brought suit against the City of Indianapolis alleging that the death was wrongful and the result of unreasonable force by the police officers and that the City was negligent in employing and training the officers. Mrs. Ervin prayed for damages in the amount of $500,000.00. Judgment was entered on the jury's verdict for the plaintiff in the amount of $75,000.00. The City brings this appeal.

fired a shot hitting Ervin above his left hip. An ambulance was called, but Ervin subsequently died from the gun shot wound.

ISSUES

The City presents eight issues for our review:

I. Is the verdict contrary to the evidence and not supported by sufficient evidence upon all necessary elements of Ervin's claim?

II. Was it error to deny the City's Motion For Judgment On The Evidence?

III. Did the court abuse its discretion in denying the City's Motion for a Continuance?

IV. Was it proper to refuse to admit into evidence the City's Exhibit B, a manual captioned "Accident Investigations, Hit and Run?"

V. Did the court err in presenting instruction number 8(A) to the jury?

VI. Did the court err in presenting instruction number 13 to the jury?

VII. Was it error for the court to refuse to grant a new trial after permitting communication with the jury outside the presence of counsel and the parties?

VIII. Were the damages awarded excessive?

ISSUES I AND II.

Issues I and II may be combined:

I. Is the verdict contrary to the evidence, and not supported by sufficient evidence upon all necessary elements of Ervin's claim?

II. Was it error to deny the City's Motion For Judgment On The Evidence?

CONTENTIONS The City contends that the uncontradicted evidence clearly showed that the actions of the officers in entering the property, in arresting Akers, and in towing the automobile from the driveway were not unlawful; that Ervin became disorderly; and that therefore the City was not negligent. ¹

Ervin argues that the City had the burden of proving that the killing was the result of reasonable force, and since the jury found in a general verdict against the City, it is appealing a negative judgment, and therefore it cannot argue that the verdict is not supported by sufficient evidence. Ervin also argues that under the theory of her case she had only to prove that (1) the death was caused by the officer, (2) the officer was acting within the scope of his employment, and (3) damages.

CONCLUSION There was sufficient evidence to support the judgment that a police officer employed by the City used unreasonable force in killing Jewell Ervin.

Ervin fails to favor us with any authority to support her position that it was the City's responsibility to prove that the force used by the policeman was reasonable. On the contrary, Ervin had the burden to prove the claim made in her complaint that "the killing resulted from the use of unreasonable force by the police officers." Manson v. Wabash Railroad Co. (1960 Mo.), 338 S.W.2d 54; State v. Pugh (1888), 101 N.C. 737, 7 S.E. 757; Bursack v. Davis (1929), 199 Wis. 115, 225 N.W. 738; Wirsing v. Krzeminski (1973), 61 Wis.2d 513, 213 N.W.2d 37. In fact, Ervin had the burden to overcome a presumption that the police officer acted in good faith. State v. Pugh, supra.

It is also true that the City can be found liable for damages for personal injury if a relationship of principal and agent or master and servant is found to exist between the municipality and the officer, Brinkman v. City of Indianapolis (1967), 141 Ind.App. 662, 231 N.E.2d 169; Klepinger v. Board of Commissioners of County of Miami (1968), 143 Ind.App. 155, 239 N.E.2d 160 (overruled on other grounds, Campbell v. State (1971), Ind.App., 269 N.E.2d 765); and if the actions of the policeman can be found to breach a duty which was owed to a private individual. Simpson's Food Fair, Inc. v. Evansville (1971), 149 Ind.App. 387, 272 N.E.2d 871; Miller v. Griesel (1973), 261 Ind. 604, 308 N.E.2d 701. ² In such cases the negligence of the officer is imputed to the municipal corporation under the doctrine of respondeat superior.

The evidence most favorable to the verdict indicates Officer Bastin was employed by the City of Indianapolis, and that when in response to a call for assistance, he arrived at the residence where Aker was staying, he was acting within the scope of his employment. This evidence was sufficient to sustain a finding that the City is liable if the negligence of the officer has been proved.

A policeman has a responsibility when subduing an arrestee not to use more force than is reasonably necessary under the circumstances surrounding its use. Lentine v. McAvoy (1927), 105 Conn. 528, 136 A. 76; 5 Am.Jur.2d Arrest § 81 (1962); see also State v. Mulvihill (1970), 57 N.J. 151, 270 A.2d 277; People v. Curtis (1969), 70 Cal.2d 347, 74 Cal.Rptr. 713, 450 P.2d 33; Towle v. Matheus (1900), 130 Cal. 574, 62 P. 1064; Gross v. State (1917), 186 Ind. 581, 117 N.E. 562; Meriwether v. Walford (1894), 11 Ind.App. 392, 39 N.E. 162; Annot. 60 A.L.R.2d 873 (liability of arresting officer for damages for the negligent infliction of personal injuries). The question whether the force used was excessive under the circumstances is a question for the trier of fact.

At the time of the shooting resulting in Jewell Ervin's death there were six policemen attempting to subdue the occupants of the house. Jewell Ervin was twenty-three years old, a husky man five feet nine inches tall weighing 162-170 pounds. He swung his arms and hit the officers with one of the officer's night stick while he shouted threats at them. When Officer Bastin arrived in response to a call for assistance he saw Ervin strike Officer Kryter knocking him unconscious. When Bastin tried to grab Ervin, he wheeled around and struck Bastin on the side of the face and neck with the night stick, causing Bastin to fall backwards on one knee. While Ervin was still swinging the night stick at Bastin, he drew his gun and, as Ervin stood over him, shot Ervin above the left hip.

The evidence describing the struggle between Ervin and the officers was not without conflict. And construing the evidence most favorable to Ervin, as we are bound to do, there is evidence supporting a finding that Officer Bastin used more force than was reasonably necessary under the circumstances. Whether we agree with the jury's verdict or not, as an appellate court we can not conclude as a matter of law that the judgment should be reversed. Differently stated, reasonable men could differ on the conflicting evidence presented. Thus, it was not error for the trial court to deny the City's Motion For Judgment On The Evidence.

III.

ISSUE Did the court abuse its discretion in denying the City's Motion For A Continuance?

CONTENTIONS The City contends that because the only attorney familiar with the case had been selected to...