Taylor v. City of Baton Rouge

• Decision Date: 09 March 1970
• Docket Number: No. 7896,7896
• Parties: Joe TAYLOR v. CITY OF BATON ROUGE et al.
• Court: Court of Appeal of Louisiana — District of US

Page 325

233 So.2d 325

Joe TAYLOR v. CITY OF BATON ROUGE et al.

No. 7896.

Court of Appeal of Louisiana, First Circuit.

March 9, 1970.

Rehearing Denied April 13, 1970.

Writ Refused June 8, 1970.

John T. Caskey, Jr., Asst. Parish Atty., Baton Rouge, for appellant.

Arthur Cobb, Baton Rouge, for appellees.

Before LANDRY, SARTAIN and ELLIS, JJ.

LANDRY, Judge.

Defendant, City of Baton Rouge (City), appeals the judgment of the lower court awarding plaintiff, Joe Taylor, $15,700.35 damages for personal injuries and related loss and expense sustained and incurred when plaintiff was assaulted and battered by former city policeman, James Nelson Addison, in the course of arresting plaintiff for a traffic violation. Addison was also named defendant but the judgment of the lower court is solely against the City. Presumably, therefore, plaintiff's claim against Addison was rejected. Plaintiff has neither appealed nor answered the appeal taken by the City. We affirm the judgment as rendered.

Appellant makes the following contentions on appeal: (1) The trial court erred in failing to find plaintiff provoked the assault by resisting arrest and therefore may not recover; (2) the trial court erred in not applying the provisions of LSA-R.C.C. Article 2320 which requires that an employer have knowledge of or an opportunity to prevent the injury to render him liable for an employee's tort; (3) alternatively, the trial court erred in holding the City liable for excess use of force by an employee, because if excessive force were used the employee was acting outside the scope of his employment, and, alternatively, the trial court awarded plaintiff excessive damages.

The questions presented, except as hereinafter otherwise noted, are primarily factual. As is to be expected, plaintiff's and defendants' versions of the incidents leading to this lawsuit are in conflict.

Officer Addison testified he had been on active duty in defendant's employ for five months when the incident in question occurred. This service was preceded by a six month training course. At approximately 8:30 P.M., February 4, 1961, he was driving a patrol car in the City of Baton Rouge, accompanied by his fellow officer, Damian Deshotels. Noting a speeding vehicle pass two other automobiles at an intersection on Government Street, Addison began pursuit to arrest the driver for a traffic violation. In addison's words, when plaintiff's vehicle turned off Government Street, the chase proceeded as follows:

'* * * this car turned south or to the right on St. Rose. This car went one block, it turned east on Jura Street, and went one block. Then this car turned south on Lavinia Street and also went one block. From there it turned east on Oleander Street and it went one block. From there it proceeded, it turned right, or it turned south on Eugene Street and went one block. Then it turned, the car went west on McGrath Street for one block and then it went south on Rittner Street and it stopped at the intersection of Rittner and Olive Streets which is somewhat of a horseshoe there.'

Addison continued by stating that plaintiff's car used its headlights only when negotiating turns and at all times drove in excess of the speed limit. The pursuit continued with the patrol car's flashing light in operation and its siren sounding. Ultimately plaintiff stopped his vehicle. Addison then stopped to the rear of plaintiff's car so that the headlights on the patrol car would light the scene. He stated he then proceeded to the driver's side of plaintiff's vehicle holding a flashlight in his left hand and his nightstick under his left arm. Meanwhile, Officer Deshotels approached the vehicle from the passenger side. Addison requested plaintiff's driver's license and thought he smelled alcohol on plaintiff's breath. Several times he asked plaintiff to get out of the car and ultimately plaintiff began to slowly comply. After plaintiff got out, Addison ordered plaintiff to place his hands on the car, spread his feet and stand leaning on the automobile. Plaintiff was slow to comply with these instructions and when Addison moved forward to demonstrate what he wanted plaintiff to do, plaintiff suddenly turned and swung. Addison fended the blow, grabbed his nightstick with his right hand and delivered one blow to the left side of plaintiff's face. Plaintiff then fell forward, struck the side of the car and fell to the ground. Addison then called for an ambulance and requested that superior officers from headquarters be sent to the scene. He denied having struck plaintiff more than once. He conceded plaintiff was not charged with drunken driving and that plaintiff was exonerated of the charge of resisting arrest.

Officer Deshotels corroborated Addison's version of the events which prompted the pursuit and of the chase itself. When the suspect vehicle stopped, he proceeded to the passenger side and ordered the two passengers therein to come out. While in the act of frisking the passengers, he heard a loud discussion between Addison and plaintiff but could not make out any of the conversation. He was proceeding toward the driver's side when he noted plaintiff on the front seat bleeding and crawling toward the open door on the passenger side. He then went back to the passenger side to thwart what he presumed to be an attempt to escape on plaintiff's part. He observed no physical encounter between plaintiff and Addison, neither did he hear Addison request plaintiff to get out of the car.

Plaintiff testified he first became aware of the police pursuit after turning off Government Street and being advised by one of his guest passengers that a police car was behind him. When he stopped, Officer Addison ordered him out of the car in abusive and insulting terms. As plaintiff was exiting from the vehicle, he was struck on the top of the head. He slumped to his knees and while in this position was kicked by the officer. Addison then ordered him to rise and place his hands on the automobile. Plaintiff was in the act of rising when he was struck again and lost consciousness. Plaintiff also testified that up to the time of trial in 1967, he has suffered from headaches and dizziness. For these afflictions, he sought medical aid from three doctors.

Charles Taylor, plaintiff's nephew was a guest passenger in plaintiff's car at the time of the incident. He confirmed plaintiff's version of the circumstances and stated that he and another passenger, Clarence Kirklin, exited from the vehicle on the passenger side when ordered to do so by Officer Deshotels. Taylor heard Addison address plaintiff in abusive, insulting language and saw Addison repeatedly strike plaintiff after plaintiff had placed his hands on the automobile roof as ordered by Addison. He also testified Addison terminated the beating only after Deshotels admonished Addison 'don't hit that man no more.'

Clarence Kirklin, in essence, corroborated the events as related by plaintiff and Charles Taylor. He testified that after getting out of the car at Deshotel's bidding, he observed Addison strike Taylor as Taylor was getting out of the vehicle. He also stated that he heard two additional blows but did not see them struck.

The trial court found that the officers had cause to effect plaintiff's arrest because of plaintiff's erratic and suspicious behavior. He also found Addison's physical attack on plaintiff was unjustified and unreasonable and amounted to a deliberate assault on plaintiff who offered no physical resistance.

Plaintiff's alleged resistance and Officer Addison's reputed use of excessive and unreasonable force in effecting the arrest are so interrelated we will consider these issues as one. We find as a fact that plaintiff did not resist as alleged by defendant. Assuming, for argument's sake, that plaintiff attempted to flee to avoid arrest for a traffic violation, it nevertheless appears he ultimately halted of his own accord. We discount entirely Officer Addison's testimony that plaintiff struck the first blow thus justifying Addison's resort to force to subdue plaintiff. The testimony of plaintiff, his nephew and other guest passenger is that Addison verbally abused plaintiff and struck without warning or provocation. It appears Officer Deshotels was in a position to see and hear what transpired between plaintiff and Addison. It is significant that although Deshotels heard a loud discussion, nevertheless he could not make out any of the conversation between plaintiff and Addison. We are of the view that had Deshotels observed any physical resistance by plaintiff, he would not have remained silent on this vital issue. We believe it a fair inference from the record that Deshotels could not, in good conscience, confirm Addison's version of the incident. We also reject Addison's testimony that he struck plaintiff only once. The nature and number of plaintiff's wounds, as hereinafter shown, demonstrate beyond doubt that plaintiff was struck repeatedly. We find it extremely improbable that plaintiff's injuries resulted from his falling against the car and then to the ground after having been hit only once by Addison.

We conclude the assault upon plaintiff was unjustified. We also note that such action by an officer, sworn to enforce and uphold the law, must be condemned in forceful terms. We are equally appalled by Officer Deshotels' failure to intercede on plaintiff's behalf until after plaintiff was beaten severely. We point out that it is the duty of every police officer to protect a citizen from an unjustified and unprovoked assault even by a fellow officer.

The...