Sousa v. Casey
| Decision Date | 18 June 1973 |
| Docket Number | No. 1738-A,1738-A |
| Citation | 306 A.2d 186,111 R.I. 623 |
| Parties | James J. SOUSA v. Richard CASEY et al. ppeal. |
| Court | Rhode Island Supreme Court |
The plaintiff brought this civil action against the defendants alleging that on March 17, 1966, he sustained severe personal injuries while being arrested for an alleged motor vehicle violation. The jury returned a verdict against each defendant in the sum of $4,500 and judgments thereon were entered in the Superior Court. The case is here on appeal and cross-appeal filed by the defendants and plaintiff respectively.
The issues raised by the parties make necessary a rather detailed recital of the travel of this case.
On March 13, 1968, plaintiff filed a complaint in the office of the clerk of the Superior Court in Providence, pursuant to the provisions of G.L.1956 (1969 Reenactment) §§ 9-5-20 1 and 9-1-12, 2 against '* * * John Doe, John Smith, John Jones, et al., fictitious names of certain police officers of the City of Providence * * * the true names and identity of said police officers being unknown to the plaintiff at this time.'
The complaint further alleges that on March 17, 1966, plaintiff 'was arrested by certain members of the Providence Police Department * * * (the names and identity of said police officers being unknown to the plaintiff) for an alleged motor vehicle violation * * *' and that he '* * * was severely and unmercifully beaten by said members * * * who used excessive force in arresting * * *' for the alleged motor vehicle violation. The complaint also contains an allegation that plaintiff had sought to determine the names of the arresting officers on numerous occasions, but that such information had been withheld from him by the Providence Police Department.
On March 30, 1968, a special entry of appearance was filed on behalf of the persons named as defendants, together with a motion to dismiss the complaint on the grounds to lack of jurisdiction, insufficiency of process, and insufficiency of service of process. On May 14, 1968, an amended motion to dismiss was filed with an additional ground, namely, that there was a criminal complaint outstanding against plaintiff and that plaintiff, although aware of the same, refused to submit himself to the jurisdiction of the courts of this state.
On May 20, 1968, plaintiff first learned the names of defendants in this case by way of a deposition in a companion case entitled 'James J. Sousa vs. David R. McGovern, in his capacity as Treasurer of the City of Providence, C.A. No. 68-1118.' In that deposition Lieutenant Thomas R. Ryder of the Providence Police Department informed plaintiff of the names of these defendants. It also appears that in a prior deposition, C.A. No. 68-1118 held on April 11, 1968, Lieutenant Ryder, on advice of counsel for defendant, David R. McGovern, refused to furnish plaintiff with the names of the officers who had arrested plaintiff.
On May 23, 1968, plaintiff filed a motion to amend his complaint by substituting the real names of defendants for fictious names used in the original complaint.
On June 6, 1968, a justice of the Superior Court heard plaintiff's motion to amend and defendants' motions to dismiss. He granted plaintiff's motion and denied defendants' motions without prejudice to renewing the motions after defendants were served.
On June 7, 1968, plaintiff filed the amended complaint and on June 13 and 14, 1968, defendants were served with copies of the amended complaint and summonses.
The defendants filed motions to dismiss the complaint on the ground that it was not commenced within the statutory time prescribed in G.L.1956 (1969 Reenactment) § 9-1-14. 3 These motions were heard on October 3, 1968, and denied.
Each of the defendants then filed an answer containing two defenses. In the first they pleaded that they were without knowledge or information sufficient to form a belief as to the truth of the allegations contained in plaintiff's amended complaint. In the second they pleaded the statute of limitations. The answers were subsequently amended by adding a third defense, that the actions of defendants were justified as they were made pursuant to a lawful arrest.
The case proceeded to trial before a justice of the Superior Court and a jury. The defendants again renewed their motions to dismiss but they were denied. The plaintiff then moved for judgment on the pleadings in accordance with Super.R.Civ. P. 12(c). The trial justice denied this motion.
After the jury returned the verdicts, defendants filed a motion for a new trial, and plaintiff filed a motion for an additur or a new trial on the question of damages only. The trial justice denied defendants' motions. He granted plaintiff's motion for a new trial, unless defendants consented to an additur of $5,000.
The defendants did not file the additur. Instead they filed an appeal to this court from (1) the judgments on the verdicts, (2) the denial of their motion for a new trial, and (3) the granting of plaintiff's motion for an additur or a new trial on damages.
The plaintiff filed an appeal from (1) the order of the Superior Court denying his motion for judgment on the pleadings, and (2) from the order of the Superior Court denying that portion of his motion for a new trial on the question of damages only or in the alternative for an additur.
As we have previously stated, this action resulted from an incident involving plaintiff's arrest by defendant police officers for an alleged motor vehicle violation. The plaintiff testified in substance as follows. Shortly after midnight on March 17, 1966, he was operating his motor vehicle on Weybosset Street in Providence. At the intersection of Dorrance Street he stopped at a red traffic light and, while so stopped, became engaged in a conversation with the occupants of another motor vehicle. As a result of that conversation he wanted to get away from them. Afraid of bodily harm from the occupants of the other car, when the light turned green he proceeded down Weybosset Street along a route which took him to North Main Street. The other vehicle was following him. He had to stop at another red light. When this light changed to green he proceeded at a speed of up to 45 to 60 miles per hour for a distance of approximately one-half mile along North Main Street until he noticed what appeared to be a police car. He kept on going, beginning a highspeed flight along streets which he did not know, to avoid being apprehended by the police officers who were then chasing him.
His flight ended at the entrance to Swan Point Cemetery where plaintiff testified he stopped his auto, saw the police car 200 or 300 feet away, turned off his motor and his lights. Then, hearing what he described as a hissing sound, he got out of his car and knelt down beside his right rear tire to see if the tire was leaking air. At this point the police car entered the cemetery driveway in a position facing his car, and then the police left their car and went into the woods nearby, looking for him. The next thing he knew he heard voices coming from the woods.
The plaintiff's testimony continues as follows. Deciding that this might be an opportunity to 'just get away from it all,' he re-entered his auto, started his motor and was 'just getting ready to roll' when his path was blocked by another police vehicle. As the police approached he reached into the glove compartment for his automobile registration. Upon being told to get out of the car by the police, he managed to get about three quarters of the way out when he was pulled the rest of the way by the police, pushed over the hood of the police cruiser, handcuffed with his hands behind his back and taken to a grassy area, to the right of his car, where he received two sharp stings on the top of his head and then punched in the face 'just as fast as they could punch me' for a period of 30 to 40 seconds. He testified that his head was cut open in two places, he had blood running down his face, his eye was swollen, his nose was fractured, and the whole side of his face and his nose was bleeding. After this happened the police said 'this kid has to go the hospital' and then he was taken to the rear of the patrol wagon and pushed into it in such a way that he had to lie on the floor of the wagon for the trip from the cemetery to the Rhode Island Hospital where he was treated and subsequently admitted as a patient.
The plaintiff introduced the hospital records from the Rhode Island Hospital and Massachusetts Eye and Ear Infirmary, which described the treatment he received at those institutions. He also testified regarding his injuries and said that he experienced pain across his chest and in his head and nose during the first two weeks of his stay at the Rhode Island Hospital.
Doctor Robert S. L. Kinder, a practicing opthalmologist, who appeared for plaintiff, described the injury to plaintiff's eye and the operation which was required to repair the detached retina which he suffered. On cross-examination he stated that the hospital records disclosed no complaints of pain by plaintiff during his stay at the Rhode Island Hospital.
The defendants testified after being called by plaintiff under the adverse witness statute and also when called in the presentation of their own defense. Officer Joseph Mulcahey, the driver of the vehicle in which defendant Brown was riding, also appeared for defendants. Officer Mulcahey and defendants Brady and Brown testified about the chase of plaintiff's vehicle.
Officer Mulcahey testified that plaintiff was first seen coming out of Industrial Drive onto North Main Street at a high rate of speed; that plaintiff proceeded along North Main Street, slowed down momentarily, and then proceeded at a high rate of speed through a red traffic light; and that upon...
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