Joiner v. Lenee

• Decision Date: 26 July 1968
• Docket Number: No. 2339,2339
• Citation: 213 So.2d 136
• Parties: Ada Marie JOINER, Plaintiff-Appellant, v. A. L. LENEE et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 136

213 So.2d 136

Ada Marie JOINER, Plaintiff-Appellant, v. A. L. LENEE et al., Defendants-Appellees.

No. 2339.

Court of Appeal of Louisiana, Third Circuit.

July 26, 1968.

Rehearing Denied Aug. 20, 1968.

J. Minos Simon, Lafayette, for plaintiff-appellant.

Davidson, Meaux, Onebane & Donohoe, by J. J. Davidson, Jr., Lafayette, Thompson & Sellers, by Charles Thompson, Jr., Abbeville, for defendants-appellees.

Before FRUGE , SAVOY and HOOD, JJ.

HOOD, Judge.

This is an action for damages arising out of the death of Johnny Joseph Johnson, who died as the result of a wound received when he was shot by Edward Landry. The suit was instituted by the decedent's widow, Ada Marie Joiner, individually and in behalf of her two minor children. The defendants are Landry, A. L. Lenee, City of Abbeville and Great American Insurance Company. Lenee is a former Chief of Police of the City of Abbeville, and Great American Insurance Company was the insurer of that city when the shooting occurred. In response to motions filed by three of the defendants, and after hearing, a summary judgment was rendered by the trial court dismissing the suit as to Lenee, City of Abbeville and Great American. Plaintiff has appealed.

Plaintiff contends that a genuine issue of material facts exists, and that the trial judge thus erred in rendering a summary judgment. Defendants contend that there is no genuine issue as to a material fact and that the judgment of dismissal should be affirmed.

Plaintiff alleges that at about 2:20 a.m. on November 16, 1964, the decedent was shot by defendant Landry shortly after the former entered a night club in Abbeville, Louisiana. She alleges that the shooting was 'without provocation whatsoever,' and that it was done by Landry 'while acting or purporting to act under color of law and by virtue of his status as a police officer.' She further avers that defendant Lenee was the Chief of Police of the City of Abbeville when the incident occurred, and that:

'Previous to November 16, 1964, the said A. L. Lenee appointed and employed one Edward Landry as a city police officer for the City of Abbeville and at all times material hereto the said Ed Landry was acting or purporting to act under color of statute, ordinance, regulation, custom, and/or usage and in his capacity as a police officer.'

Plaintiff propounded interrogatories to defendants Lenee and City of Abbeville, which interrogatories were answered. Plaintiff also took the deposition of Lenee.

On April 14, 1966, Lenee filed a motion for a summary judgment, praying that the suit be dismissed at plaintiff's costs. Annexed to and made a part of that motion were the pleadings, the interrogatories which had been propounded by plaintiffs and the answers thereto, the deposition of Lenee and four affidavits. On April 21, 1966, a similar motion for a summary judgment was filed by defendants City of Abbeville and Great American Insurance Company.

On April 25, 1966, or four days after the last mentioned motion for summary judgment had been filed, plaintiff filed a supplemental petition alleging, in substance, that for many years the police department of the City of Abbeville had encouraged the employment of peace officers by private citizens in places of public amusement, that the city police department recommended Landry for that type of employment and provided him with a police badge and uniform, that the city police department authorized Landry to wear and make discretionary use of side arms and held him up to the general public as a police officer of the city, and that at the time of this shooting Landry thus was a 'de jure and/or de facto' officer of the city. Alternatively, plaintiff alleges that defendants are estopped from denying that Landry was a de jure or de facto peace officer or that he was acting for the City of Abbeville at the time the shooting occurred.

A hearing was held on the motion for summary judment, and at that hearing the movers filed in evidence the above described interrogatories and answers, the deposition of Lenee and the four affidavits which were attached to one of said motions. Plaintiff filed no affidavits and she presented no evidence of any kind at that hearing. After the trial, the trial judge concluded that the affidavits and deposition 'negate any employment of Edward Landry by the City of Lenee,' and a summary judgment thus was rendered dismissing the suit insofar as it was directed against the defendants Lenee, City of Abbeville and Great American Insurance Company.

The receivable evidence which was introduced at the hearing shows that Landry was employed as a part-time policeman by the City of Abbeville from February 16 to August 28, 1962, and that his employment was terminated on the last mentioned date, which was more than two years before the decedent was shot. Landry has not been employed by the city at any time since that date, and he thus was not employed by the city or by Lenee on November 16, 1964, when the shooting which precipitated this suit occurred. Police officers in the City of Abbeville, including part-time officers, are and have been employed only by resolution adopted by the Mayor and City Council. The Chief of Police has never employed and has never been vested with authority to employ any such officer.

The owner of the nightclub in which this incident took place stated, by affidavit, that Landry was working for him as a 'bouncer' when the shooting occurred, that he paid Landry for his work, that the latter was under the direct supervision of the affiant, that no one else exercised any supervision or authority over Landry at that club, and that Landry was not under the supervision or control of the City of Abbeville or of any officer or employee of that city. The statements of the owner of the nightclub were verified by an affidavit of another employee who was working as a 'bouncer' in the same club.

Lenee testified by deposition that Landry has not been employed by the City of Abbeville at any time since his original employment was terminated on August 27, 1962, and that since that time Landry has never been authorized to carry side arms or to make arrests. He stated that when Landry's employment by the city was terminated in 1962, he alowed Landry to keep 'some old clothes and a cap' and 'an old badge,' and that Landry was wearing the badge and the cap when the shooting occurred. With reference to the clothes, the cap and the badge, Lenee explained, 'Well, I give him all of that. I didn't take it away from him. When he use it again, he just went and used it. But, I didn't tell him to use that. He just used it.' 'Well, I didn't know he was using them even.'

Lenee stated that the owner of the nightclub called him before hiring Landry and asked if it was all right for Landry to be his bouncer, and that Lenee thereupon told him 'it was all right with me if it's all right with you * * * he could take anybody for bouncer as far as that.' Lenee acknowledges that he knew that bouncers in nightclubs, including Landry, carried pistols while working in this capacity, although they have no legal authority to do so, but he stated that 'they do that all over the country.' He stated that prior to the time the incident involved here occurred, while Landry was working as a bouncer at another nightclub, Lenee informed him that he could not make arrests, and that all he could do was to hold the offender under civilian arrest 'until my boys get there.'

As we have already noted, plaintiff filed no counter-affidavits and submitted no evidence of any kind to rebut the statements contained in the affidavits, deposition and answers to interrogatories which had been offered in evidence by defendants.

The summary judgment remedy is not a substitute for a trial, and a summary judgment may not be rendered when there is a genuine issue of a material fact which must be resolved. The burden of proof rests on the party seeking a summary judgment to show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. All doubts are to be resolved against the granting of a summary judgment and in favor of a trial on the merits to resolve the disputed facts. Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963); Roy & Roy v. Riddle, 187 So.2d 492 (La.App.3d Cir. 1966); Henderson v. Falgout, 188 So.2d 208 (La.App.1st Cir. 1966).

If the mover at the trial of a motion for summary judgment produces convincing proof, by affidavits or other receivable evidence, of the facts upon which the...