City of New Orleans v. Abbagnato

• Decision Date: 29 May 1894
• Docket Number: 227.
• Citation: 62 F. 240
• Parties: CITY OF NEW ORLEANS v. ABBAGNATO.
• Court: U.S. Court of Appeals — Fifth Circuit

62 F. 240

CITY OF NEW ORLEANS v. ABBAGNATO.

No. 227.

United States Court of Appeals, Fifth Circuit.

May 29, 1894

This action was commenced in the circuit court by petition as follows:

'The petition of Widow Giovanni Abbagnato, an alien, and subject of the king of Italy, domiciliated at Palermo, Sicily kingdom of Italy, herein appearing and prosecuting in her own behalf and in her own right, respectfully represents that the city of New Orleans, a municipal corporation chartered and organized under the laws of the state of Louisiana, and a citizen thereof, and domiciliated within the jurisdiction of this honorable court, is justly and truly indebted unto your petitioner in-- capacity hereinabove recited, in the sum of thirty thousand dollars ($30,000) damages, for the following right and cause of action, which arose on March 14, 1891, in the city of New Orleans, state of Louisiana, and within the jurisdiction of this honorable court, viz.: That Antonio Abbagnato (Bagnetto), an alien, and a subject by birth of the king of Italy, domiciliated at Palermo, Sicily, kingdom of Italy emigrated therefrom to the United States on or about the year 1884, and that he came to Louisiana, and established his residence in the city of New Orleans. That, while here residing, he was arrested on or about October, 1890, together with twenty or more other persons, on a charge of murder of the chief of police of said city, D. C. Hennessy, which had recently occurred; was prosecuted with said other persons for said crime before the criminal district court for the parish of Orleans, when, after a protracted trial, lasting-- days, and after evidence adduced, argument of counsel, and charge of the presiding judge, the jury, on March 13, 1891, returned into court and pronounced a verdict of acquittal as to said Antonio Abbagnato (Bagnetto), and five other coaccused, including such who had been acquitted and such as to whom there had been a mistrial, were, pending further legal proceedings, reincarcerated in the parish prison, which is the property of the city of New Orleans. That during the evening and night of March 13, 1891, and immediately after the verdict of the jury had become known throughout said city of New Orleans, a conspiracy was formed by a certain body of men, whose names are now to your petitioner unknown, with the avowed purpose of setting at naught the findings of said jury and the legal and regular methods of criminal trial and justice, as established and recognized in civilized communities throughout the world, and which had heretofore prevailed in the present community and with the sole purpose of taking the law unto their own hands, and of summarily, and without the formalities of trial and criminal justice, destroying, by wholesale slaughter, the lives of the said Antonio Abbagnato (Bagnetto) and the other twenty or more coaccused, then incarcerated with him in said parish prison. That, in pursuance of said conspiracy and plan of action, a mass meeting was called for the next day at 10 a.m. at Clay statute, on the main street of the town, at about three-quarters of a mile from the parish prison, which said assembly was extensively advertised in the morning papers of the city, as appears by a copy of the New Orleans Times-Democrat of said date, which is annexed hereto for reference. That, in accordance with said call, a crowd congregated at said place, where several inflammatory speeches were made, as appears from the issue of the New Orleans Daily States, a newspaper of said city, dated March 14, 1891, which is hereto annexed for reference. That, after their passions had been so aroused, the mob moved in a body from the place of meeting to the parish prison, which they surrounded on all of its four sides, cutting off all avenues of escape therefrom. That some forty of fifty men out of said mob, whose names are now to your petitioner unknown, armed with Winchester rifles, shotguns, revolvers, axes, crowbars, and other weapons, and who preceded the main body of the rioters, secured admission inside the walls of the prison by breaking open a rear door of the building, meeting with little or no resistance from the police authorities and other persons who should have been charged with the duty of protecting the avenues to said parish jail. That the said armed body of men took absolute possession of the building, and during 15 or 20 minutes with said Winchester rifles, shotguns, pistols, axes, and other deadly weapons, began an immediate search hunt, and slaughter of their intended victims, who were unarmed, and were mercilessly shot down and killed, including the said Antonio Abbagnato (Bagnetto) and ten other prisoners, two of whom, viz. the said Antonio Abbagnato (Bagnetto) and Emanuele Polizzi (Manuel Polizzi), were taken out of the jail into the street, and were hanged by the neck to trees or lamp posts, fronting said prison, and then riddled with bullets until death; the names of all the victims and the particulars of their horrible deaths being fully detailed in the issue of the New Orleans Picayune of March 15, 1891, which is hereunto annexed for reference. Now, your petitioner avers that, throughout all of the stages of this bloody drama, no proper steps, means, or action were taken by the authorities having charge of the police, peace, and good order of the city to suppress and defeat said conspiracy, although the mayor of the city of New Orleans, the chief of police, and their employes, agents, deputies, and subordinates knew (as your petitioner is informed and verily believes), since the evening of March 13, 1891, or since early morning on March 14, 1891, that such a conspiracy existed, what its sanguinary programme was, and the time, place, and mode of executing the same. Your petitioner further avers that if the mayor of the city of New Orleans, Joseph A. Shakespeare, and if the acting chief of police, John Journee, on hearing the rumors circulating throughout the city, or on reading in the morning papers of the proposed mass meeting, and understanding its dreadful purpose, had taken the proper steps of police and protection of said parish prison, as well as of the persons and lives of the prisoners which the law of the state had confided to the honor and justice of the city, the said riotous assemblage would never have organized, or would not have proceeded down the streets, or taken possession of the prison building, and the wholesale slaughter would have been prevented. That said parish prison is a massive brick building, with iron doors and railings, easy to defend by a handful of disciplined policemen, for a time at least, and until the militia of the state or other police assistance from the outside could have been summoned. That from Clay statute to the parish prison, a distance of almost a mile, no police officers or other guardians of the peace were stationed, with instructions to arrest the march of the mob coming down the street towards the prison. That the police force at the prison proper, in front of the building itself, and in the interior thereof, was insufficient in number, was not armed, or imperfectly armed, was demoralized, was improperly led and commanded, and readily yielded to the fury of the mob. That the safety of the prisoners might have been provided for by the prompt removal to another prison, police jail, or other place of refuge. That the mayor of the city was not that morning at his office at the city hall, and could not be found, and that he gave no instructions to the police authorities to disperse the mob, and to prevent the consummation of its bloodthirsty designs. That the mayor of New Orleans is the chief magistrate and executive officer of the city; is at the head of the police force, by virtue of his office; and is charged with the duty of seeing the laws executed, and of preserving the peace and good order within its limits. That the chief of police, next in command to the mayor, was equally derelict in his duties, and was, together with the said mayor and all of the employes, agents, deputies, and subordinates, guilty of gross carelessness and culpable negligence. That, by reason of said gross carelessness and culpable negligence on the part of the said mayor of the city of New Orleans and the chief of police and the other subordinate officers of the police force, by reason of their inaction, supineness, and failure to perform the duties of their respective offices in regard to the proper police of the city, as hereinabove fully recited, and by reason of other acts of omission and guilty indifference, to be shown at the trial of the case, the said city of New Orleans has become liable in damages to your petitioner in her hereinafter mentioned capacity, by reason of a right and cause of action which had accrued to the said Antonio Abbagnato (Bagnetto), and which has survived his death, and become vested in your petitioner, as aforesaid. Your petitioner further represents that the said damages consist of the following items, viz.:

(1) The well-grounded terror and anxiety of mind under which the victim labored prior to the onslaught, which are fully worth the sum of five thousand dollars .................................... $ 5,000 (2) The great mental and bodily pain, suffering, and agony which preceded or accompanied his death, which are fully worth the sum of five thousand dollars .............................................. 5,000 (3) The earnings and savings which the said decedent, who was a healthy, strong, and able-bodied young man, might have realized during his natural life, had not the same been prematurely cut off, which are fully worth the sum of ten thousand dollars ................ 10,000 (4) Exemplary and punitive damages for the failure of the city of New

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