Wimberly v. City of Paterson

• Decision Date: 24 July 1962
• Docket Number: No. A--559,A--559
• Citation: 75 N.J.Super. 584,183 A.2d 691
• Parties: Merritt WIMBERLY, Sr., as general administrator and as administrator ad prosequendum of the Estate of James Wimberly, Plaintiff-Appellant, v. CITY OF PATERSON, a municipal corporation of New Jersey, and John M. Docherty, Jr., and Peter Klikier, Defendants-Respondents. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 584

75 N.J.Super. 584

183 A.2d 691

Merritt WIMBERLY, Sr., as general administrator and as administrator ad prosequendum of the Estate of James Wimberly, Plaintiff-Appellant, v. CITY OF PATERSON, a municipal corporation of New Jersey, and John M. Docherty, Jr., and Peter Klikier Defendants-Respondents.

No. A--559.

Superior Court of New Jersey.

Appellate Division.

Argued Dec. 11, 1961.

Decided July 24, 1962.

David Cohn, Paterson, for appellant (David & Albert L. Cohn, Paterson, attorneys; David Cohn and Daniel Drystal, Paterson, on the brief).

Adolph A. Romei, Paterson, for the respondents (Theodore D. Rosenberg, Paterson, attorney).

Before Judges CONFORD, FREUND and LABRECQUE.

The opinion of the court was delivered by

LABRECQUE, J.S.C., temporarily assigned.

The plaintiff Merritt Wimberly, Sr. appeals from a judgment of dismissal following a jury verdict of no cause for action in the Superior Court, Law Division. He further appeals from an interlocutory order denying his motion for summary judgment as to liability and from the denial of his later motion for a new trial.

Plaintiff sues as general administrator and as administrator Ad prosequendum of the estate of his son, James Wimberly, who met his death on March 8, 1959 as a result of a bullet fired from the pistol of defendant Docherty. As representative of the next of kin, he sues to recover damages for the wrongful death of the decedent. As administrator of decedent's estate, he seeks damages for his pain and suffering during the short period between the shooting and his death.

At the time of the shooting Docherty was a police officer of the City of Paterson, and he and a fellow police officer, Peter Klikier, were attempting to apprehend the decedent. The latter, then aged 17 years and 5 months, had been attending an evening basketball game at the Paterson armory. There Klikier recognized him as one wanted by the police department. They stopped him and demanded that he identify himself. He told them his name was Bates and that he was 19 years of age. He was thereupon told that he was being taken into custody as a parole violator. He was, in fact, on parole from the Jamesburg State Home for Boys, to which he had been committed in 1957 and from which he had been released in April 1958. The officers knew of no outstanding complaints or warrants for his arrest and no indictments were pending against him. The only authorization on which they were acting was an informal instruction from a superior police officer, Detective Sgt. Ventimiglia, to pick up the decedent as a parole violator and for questioning on suspicion, 'if you happen to see him.'

The two officers took Wimberly to the door of the armory where they were joined by a Sgt. Tanis, also of the Paterson police. Suddenly he pushed Klikier aside, bolted from the armory and began to run north on Pennington Street, with Klikier, Docherty and Tanis in pursuit. In the initial phase of the chase, Klikier fired a warning shot in the air. He was then passed by Docherty who fired two additional shots in the air. When he reached a point near the entrance to an alley, the decedent fell but picked himself up and ran into the alley.

The alley was approximately 4 feet wide and 36 feet long. Docherty testified that when he reached it, he shouted 'halt' and upon receiving no answer he fired one shot down the left side of the alley at a patch of light on the ground, some 20 or 30 feet distant. He asserted that he intended it to be a warning shot but was afraid to fire into the air because it was dark and a bullet might have entered a house. The bullet struck the decedent, fatally wounding him.

Docherty, who had been on the Paterson police force for some three years, was an expert marksman and a member of the police pistol team. He had previously served for three years in the Marine Corps. He testified that when he went into the alley after firing the shot, the decedent grabbed his legs and pulled him down so that he and Klikier had to subdue him. Decedent was subsequently taken to the hospital in a patrol wagon, both officers stating that he continued to struggle. However, this was disputed by some of the decedent's friends who asserted that he was limp. In any event he died a very short time after reaching the hospital. The record is not clear as to whether he was hit directly or whether the bullet ricocheted.

The grounds of appeal urged may be generally classified as follows: (1) error in the failure of the trial court to enter summary judgment or to direct a verdict in favor of the plaintiff as to liability; (2) improper and prejudicial remarks in summation by counsel for the defendant; (3) errors in the admission of evidence; (4) errors in the charge; (5) refusal to grant a new trial for the foregoing reasons; and (6) that the verdict was contrary to the evidence and the result of passion, prejudice, partiality or mistake.

I

Plaintiff's basic contention in respect of the first contention is that as a matter of law the officers had no right to use firearms in attempting to arrest the decedent, a 17-year-old juvenile charged with nothing more than parole violation and under suspicion of having committed other offenses. Noback v. Town of Montclair, 33 N.J.Super. 420, 110 A.2d 339 (Law Div.1954). He asserts that the City of Paterson was liable for their actions under the doctrine of Respondeat superior and that upon the undisputed facts summary judgment should have been entered as to liability. McAndrew v. Mularchuk, 33 N.J. 172, 162 A.2d 820 (1960). A motion for summary judgment to that effect was made and denied. At the completion of the eight-day trial, a motion for a directed verdict as to liability was made and denied.

In opposition to the motion, it was urged that the shot had been fired as a warning only, in an effort to halt decedent's flight and not with intent to strike or harm him. The court held that it was for the jury to determine whether the shooting was intentional, or whether it resulted from the negligent firing of a warning shot by Docherty.

The question presented is restricted to whether a police officer may, if in the exercise of due care, fire a warning shot where an unarmed juvenile is sought to be taken into custody for an alleged parole violation, or for questioning as a suspect in connection with the investigation of past offenses not committed in the presence of the arresting officer. The plaintiff, relying upon the reasoning of the court in Noback v. Town of Montclair, supra, 33 N.J.Super. at p. 427, 110 A.2d 339 and Davis v. Hellwig, 21 N.J. 412, 122 A.2d 497, 60 A.L.R.2d 866 (1956), (affirming 37 N.J.Super. 569, 118 A.2d 83 (App.Div.1955)), asserts that no such right exists. He further contends that, regardless of the motive which may have actuated Docherty, the firing by him, at close range into the narrow passageway where he knew or should have known his quarry must be, evinced such a reckless disregard of consequences as to require a peremptory finding of liability.

The rule is well established that a police officer in effecting an arrest has the right to use such force as he feels reasonably necessary, being responsible, however, for the use of any excessive force, or for the wanton abuse of discretion in determining the amount of force reasonably required to effect the arrest. Antwine v. Jones, 14 N.J.Super. 86, 88, 81 A.2d 374 (App.Div.1951); Restatement, Torts, §§ 131 (1948 Supp.), 132, 133 (1934). If Resistance to lawful arrest is encountered, the officer may repel force with force even to the extent of killing the offender if that extremity becomes necessary to effect the arrest or to protect himself from serious bodily injury. Noback v. Town of Montclair, supra, 33 N.J.Super. at p. 427, 110 A.2d 339; 2 Bishop, Criminal Law (9th ed.), §§ 647(1) and 650. Likewise, following the common law rule, a police officer has been held justified in shooting or killing an escaping felon either before or after an arrest if the offender could not otherwise be captured. Noback v. Town of Montclair, supra, 33 N.J.Super. p. 427, 110 A.2d 339; Commonwealth v. Duerr, 158 Pa.Super. 484, 45 A.2d 235, (Super.Ct.1946); Charge of Justice Depue to the Essex County Grand Jury, 9 N.J.L.J., 167--169 (1886); Davis v. Hellwig, supra, 21 N.J. p. 416, 122 A.2d 497.

But a Fleeing offender who is charged with a misdemeanor, as distinguished from a common law felony, or with a breach of the peace or a violation of the Disorderly Persons Act, falls into an entirely different category, and a police officer who shoots at such an offender subjects himself to civil liability as well as criminal prosecution. Davis v. Hellwig, supra; cf. State v. Williams, 29 N.J. 27, 37, 148 A.2d 22 (1959). In Davis, the court pointed out the reasons underlying this distinction by quoting from the opinion of the North Carolina Supreme Court in Holloway v. Moser, 193 N.C. 185, 136 S.E. 375, 50 A.L.R. 262 (1927) as follows 'By the common law, an officer, in a case of felony, was permitted to use all force necessary to capture the felon, even to slaying him when in flight. In the case of a misdemeanor, however, the rule was different. The officer could defend himself, if resisted, even to the taking of life, but if the offender were simply fleeing and not resisting, he had no right to kill. It was thought that to permit the life of one charged with a mere misdemeanor to be taken, when not resisting but only fleeing, would, aside from its inhumanity, be productive of more evil than good.

The reason for the distinction was obvious. Ordinarily, the security of person and property is not endangered by a misdemeanant being at large, while the safety and security of society require the speedy arrest and punishment of a felon.

It is universally held that an officer has no right to kill one who merely flees to avoid arrest for a misdemeanor or to effect an escape from such arrest, even though it may appear that by...