Farrell v. Department of Police

• Decision Date: 06 February 1974
• Docket Number: No. 5795,5795
• Citation: 290 So.2d 457
• Parties: Howell F. FARRELL v. DEPARTMENT OF POLICE.
• Court: Court of Appeal of Louisiana — District of US

Page 457

290 So.2d 457

Howell F. FARRELL v. DEPARTMENT OF POLICE.

No. 5795.

Court of Appeal of Louisiana, Fourth Circuit.

Feb. 6, 1974.

James R. Sutterfield, New Orleans, for plaintiff-appellant.

Michael A. Starks, New Orleans, for defendant-appellee.

Before GULLOTA and GAUDIN, JJ. and ZACCARIA, J. ad hoc.

FRANK V. ZACCARIA, Judge ad hoc.

The facts of this case are basically undisputed. On July 17, 1972, appellant, a New Orleans police officer, arrested a subject and after giving him several traffic tickets, arrested him for allegedly violating LSA-R.S. 14:122 i.e. Public Intimidation. The arrested subject filed a complaint with the Internal Affairs Bureau of the New Orleans Police Department, alleging that he had been falsely ticketed and arrested by Officer Farrell. On August 18, 1972, appellant was notified that he had been given an emergency suspension while allegations that he had falsely issued tickets, submitted false reports and had been untruthful were being investigated. On September 12, 1972, Mr. Farrell appealed his suspension by submitting a letter to the Department of Civil Service, stating that he, appellant, wished to appeal his suspension of August 18, 1972. Subsequently, on September 21, 1972, Howell F. Farrell was suspended for 20 days, such suspension having begun on September 1, 1972, and ending September 20, 1972, and dismissed from the New Orleans Police Department effective September 21, 1972. The following day, September 22, 1972, the Police Department amended and corrected the letter of September 21, 1972. Mr. Farrell was advised that he had been suspended for a total of 33 days, such suspension having begun on August 19, 1972, and ending on September 20, 1972, and dismissed from the Police Department effective September 21, 1972. No appeal was taken from either of the two latter disciplinary letters.

A hearing on his appeal was set for October 12, 1972, which was continued by the Civil Service Commission until November 9, 1972, because of the 'heavy docket of the Commission'. Again, on November 9, 1972, because of the heavy docket of the Commission, the appeal was referred to Mr. Ralph D. Dwyer, Jr., Hearing Examiner appointed by the Civil Service Commission and hearing was set by the Hearing Examiner for December 5, 1972. Because of the fire in the Rault Center on November 29, 1972, in the building housing the offices of the attorney for appellant, the hearing was continued by the Hearing Examiner to December 13, 1972.

On December 13, 1972, at the commencement of the hearing, the Hearing Examiner and the attorney for appellant were notified by the attorney for the Appointing Authority of his contention that appellant, while he had filed a timely appeal to the suspension, had not filed a timely appeal to the dismissal arising out of the same incident. The Appointing Authority's exception was made verbally and the Hearing Examiner continued the case to January 11, 1973 to enable the attorney for the Appointing Authority to file a written exception, which was filed on December 20, 1972. At the hearing on January 11, 1973, the Commission upheld the exception of prescription as to the appeal from the dismissal of the appellant and further ruled that a timely appeal had been filed with respect to the suspension of appellant. It is from this ruling that this appeal is made.

This Court is of the opinion that the Commission erred. Louisiana Revised Statutes 9:5801 provides, in part, as follows:

All prescriptions affecting the cause of action therein sued upon are interrupted as to all defendants, including minors or interdicts, by the commencement of a civil action in a court of competent jurisdiction and in the proper venue . . .

The Louisiana Courts have liberally construed and applied the provision of LSA-R.S. 9:5801 so as to allow any and all amendments to pleading for the purposes of enlarging the demand to include additional remedies, to state a cause of action where one had not been previously alleged in the pleadings, and even to allow the addition of parties by intervention after the...