Williams v. Altruda.

• Decision Date: 21 April 1948
• Docket Number: No. 8896.,8896.
• Citation: 58 A.2d 562
• Parties: WILLIAMS v. ALTRUDA.
• Court: Rhode Island Supreme Court

58 A.2d 562

WILLIAMS

v.ALTRUDA.

No. 8896.

Supreme Court of Rhode Island.

April 21, 1948.

Exceptions from Superior Court, Providence and Bristol Counties; Alberic A. Archambault, Judge.

Action in trespass by Roger Williams against Joseph D. Altruda for assault and battery, false imprisonment and violation of statute governing arrests. Trial to a jury resulted in a general verdict for plaintiff, defendant's motion for new trial was denied, and he brings exceptions.

Exceptions overruled in part and sustained in part and case remitted with directions.

Edwards & Angell, of Providence (William H. Edwards, Gerald W. Harrington and John V. Kean, all of Providence, of counsel), for plaintiff.

William E. McCabe, City Sol., and James J. Corrigan, Asst. City Sol., both of Providence, for defendant.

CAPOTOSTO, Justice.

This action in trespass against the defendant, a police officer of the city of Providence, was tried to a jury in the superior court and resulted in a general verdict for the plaintiff in the sum of $1,000. Defendant's motion for a new trial was heard and denied. Broadly speaking, his exceptions before us claim error in the denial of a motion for a continuance, which he made immediately before going to trial, on the ground that there was then public excitement and prejudice against the police as a result of certain newspaper articles; in the admission of certain photographs and X-ray films; in the admission of evidence relating to plaintiff's loss of wages, such loss not being specifically alleged in the declaration; and in the denial of his motion for a new trial.

The damages in the writ are laid at $10,000. The declaration is in three counts, namely, assault and battery, false imprisonment, and violation of Public Laws 1941, chapter 982, governing arrests in this state. In each count the plaintiff claimed ‘compensatory’ and punitive damages. Defendant pleaded the general issue and also a special plea of justification. Plaintiff's replication closed the pleadings.

It appears in evidence that at the time of the occurrence under consideration the plaintiff was employed by the Providence Journal Company, which publishes a daily newspaper. At about 10 o'clock in the evening of September 20, 1946, a police officer arrested a member of the armed forces on Exchange Place, commonly known as the ‘Mall,’ in this city. This caused a crowd to gather, which rapidly increased in number and soon became unruly to such an extent that additional police officers were sent to the scene for the purpose of preserving order. The plaintiff was in the crowd taking pictures that might be of use to his employer. From this point on the evidence was conflicting.

The evidence for the plaintiff was in substance that, while standing some thirty-five feet from the crowd and about to take a picture, a police sergeant, without any warning whatever, grabbed and swung him over to the defendant, who, taking hold of plaintiff's arm, ‘whisked’ him across the Mall to a ‘police cruiser car,’ hereinafter referred to merely as the car, which was parked some distance away. At the time, the plaintiff had a photographer's flash bulb pouch slung at his side and was carrying a camera in his hand. There was only one door on each side of the car, which door, being hinged from the front, opened in that direction. What took place at the car when the plaintiff was ordered to enter it from its right side rests entirely on the testimony of the plaintiff, the defendant, and the police officer who drove the car.

The testimony of the plaintiff was that as he started to get into the car, holding the camera with one hand and the flashlight gun attached to the camera with the other, the defendant violently pushed him into the car, causing him to fall on his back on the floor and against the rear seat; that, after shooting a picture from that position, he got up onto the seat; and that he was then taken to the police station, where he was held for a short time and released.

The police sergeant testified that before he took hold of the plaintiff at the scene of the disturbance he twice asked him to move, and that it was only upon plaintiff's refusal to do so that he turned him over to the defendant. As to what happened at the car, the defendant testified that he opened the door and ordered the plaintiff to get in. Meanwhile, the driver of the car did not move from his position at the wheel and the back of the seat to his right was held so as to permit ready access to the rear of the car. The defendant denied that he pushed the plaintiff, or that the latter fell onto the floor of the car as the result of any force used by him. His testimony was to the effect that, in obedience to his order, the plaintiff quietly entered the car and sat on its rear seat. The defendant was supported by the driver only in certain respects. The latter testified fully as to what he did to provide access to the rear of the car, but he either did not see or failed to remember what happened while the plaintiff was getting in.

As to the evidence respecting plaintiff's injury and damages, it appears that he had a congenital malformation of the spine that predisposed his back to injury. Furthermore, while serving with the armed forces in England, he met with an accident in which he injured his back. He was then hospitalized in a cast for many months and thereafter wore a back brace for a considerable time following his discharge from the service for disability in October 1944. He was not wearing a brace at the time of the occurrence under consideration. It also appears in evidence that the plaintiff was involved in one or two minor accidents in this country, which according to him did not affect the condition of his back.

The plaintiff testified that, while in the police station, he began to feel pain in his back of the kind that he had previously experienced in the army; that, when released, he was unable to walk and had to be taken to his destination in an automobile; that he was obliged to resume wearing the back brace the following morning and has continued to do so ever since, especially when working; that he was being treated by the veterans administration for his back condition and by his own physician for the other physical ailments resulting therefrom, such as nervousness and inability to sleep. Plaintiff further testified that he felt pain in his back on sitting down and when walking up or down stairs, and that because of the present condition of his back he was unable to move quickly. He claims damages for a lighting up and aggravation of his back condition, loss of earnings, expenses and pain and suffering.

Defendant's exception numbered 1 is to the denial of his motion for a continuance on the ground that the publication of certain articles in newspapers of wide circulation concerning the alleged serious, improper conduct of a group of police officers of this city, among whom was the defendant, had so aroused public interest and prejudice against the police generally that it was impossible for him to secure a fair and impartial trial. This claim was not supported by any proof or offer of proof, but rested solely on the opinion of defendant's counsel who merely stated that he had the newspapers in his possession. In the circumstances the trial justice denied the motion. Furthermore, the defendant did not avail himself of the provisions of General Laws 1938, chapter 506, § 35, and move that each juror be examined on oath to ascertain whether, as a result of newspaper articles, the juror entertained any prejudice against the police in general and the defendant in particular. As a matter of fact, after a jury apparently satisfactory to the defendant was drawn, the trial justice, on his own motion and before the jury was sworn in, made inquiry to that effect.

The burden of proof is on the party moving for a continuance. Ordinarily the granting or denial of such a motion is within the discretion of the trial court and its action will not be reversed unless there is a clear abuse of discretion. Anthony v. Anthony & Cowell Co., 40 R.I. 1, 99 A. 641; Wolfe v. Wolfe, R.I., 104 A. 689. The view expressed in these cases is in accord with the great weight of authority. See 86 A.L.R. 1249 annotation. An examination of the record before us does not disclose by competent proof that there was prevailing in the community such prejudice against the defendant or the police generally as should have moved the trial court to grant a continuance on the ground that the case could not then be tried by a fair and impartial jury. On the evidence here the trial court did not abuse its discretion in denying defendant's motion for a continuance. This exception is overruled.

Under exceptions 10 to 17 inclusive, the defendant contends that it was error to admit two photographs showing the plaintiff wearing his back brace. He rests this contention on two grounds: first, that the photographs were immaterial and therefore not competent evidence; and, secondly, that no proper foundation was laid for their introduction. We find no merit in either of these grounds. The photographs were competent under plaintiff's version of the occurrence. If as a result of defendant's conduct it became necessary for the plaintiff to resume wearing a back brace and he was actually wearing such a brace at the time of the trial, an authenticated photograph thereof was competent evidence for the jury to consider if they reached the question of damages.

The defendant insists that the photographs were not properly authenticated and states in his brief that an examination of the transcript reveals ‘no testimony whatsoever * * * as to the accuracy, genuineness or correctness of the photograph of this brace * * *.’ This statement is a manifest exaggeration, as the plaintiff positively testified that the photographs were taken at his direction; that the negatives were developed and the prints therefrom made either...