Allison v. Ivy
| Decision Date | 02 February 1956 |
| Docket Number | No. 8465,8465 |
| Citation | 85 So.2d 332 |
| Parties | W. L. ALLISON, Jr., Plaintiff-Appellant, v. Jessie R. IVY et al., Defendants-Appellees. |
| Court | Court of Appeal of Louisiana — District of US |
Roy M. Fish, Springhill, for appellant.
McConnell & McConnell, Springhill, for appellee.
Plaintiff instituted this suit for the recovery of damages allegedly due for personal injuries inflicted upon him by Jessie R. Ivy and M. T. Ivy in a barroom encounter on May 9, 1955, near Cotton Valley, Louisiana. M. T. Ivy, one of the defendants, was never served with citation and consequently is not a contestant herein. Following trial on the merits there was judgment rejecting plaintiff's demands.
The record shows Jessie R. and M. T. Ivy had been drinking in Brown's Bar when plaintiff entered. Jessie Ivy addressed Allison by asking him if he should not apologize for having kicked him in an encounter had some time previously, and when Allison denied having kicked him, Ivy told Allison that he knew Allison had kicked him. Thereupon, so Ivy testified, Allison struck him with his fist and both of the Ivys proceeded to strike Allison on the head with whiskey bottles. Allison denies that he ever struck Jessie Ivy but his testimony in this respect was contradicted by W. E. Brown, the proprietor of the bar. Brown testified that Allison struck the first blow. Henry Emerson and Loyd Burnham, when called as witnesses by plaintiff, testified that they did not see the start of the altercation. Plaintiff's attorney sought to impeach the testimony of Brown by himself testifying that Brown gave him a statement in conflict with Brown's testimony on the trial. The foregoing represents substantially all the material evidence adduced upon the trial.
The rule is well settled in Louisiana that a plaintiff can recover civil damages in an action for assault and battery committed without legal excuse unless he provoked the difficulty by conduct calculated to arouse the resentment or fears of the defendant. However, the courts have found sufficient fault on the part of plaintiff to bar his recovery where he struck or attempted to strike the first blow. See: LSA-C.C. art. 2315; Hopper v. Ross, D.C., 123 F.Supp. 371; Ogden v. Thomas, La.App.1949, 41 So.2d 717; Hartfield v. Thomas, La.App.1950, 45 So.2d 216; Esnault v. Richard, La.App.1915, 53 So.2d 494; Ashley v. Baggett, La.App.1951, 53 So.2d 678; Smith v. Parker, La.App.1952, 59 So.2d 718; Gordon v. Pittman, La.App.1952, 61 So.2d 609; Mecom v. Marshall, La.App.1953, ...
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