Augustine v. Washington Parish Police Jury

• Decision Date: 25 February 1980
• Docket Number: 12977,Nos. 12976,s. 12976
• Citation: 383 So.2d 1271
• Parties: Frank Harlan AUGUSTINE, Plaintiff-Appellant, v. WASHINGTON PARISH POLICE JURY et al., Defendant-Appellee. Frank Harlan AUGUSTINE, Plaintiff-Appellant, v. Charley SPEARS et al., Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 1271

383 So.2d 1271

Frank Harlan AUGUSTINE, Plaintiff-Appellant, v. WASHINGTON PARISH POLICE JURY et al., Defendant-Appellee.

Frank Harlan AUGUSTINE, Plaintiff-Appellant, v. Charley SPEARS et al., Defendant-Appellee.

Nos. 12976, 12977.

Court of Appeal of Louisiana, First Circuit.

Feb. 25, 1980.

Lemuel E. Hawsey, III, and Glenn A. Koepp, Baton Rouge, for plaintiff-appellant.

John W. Anthony of Talley, Anthony, Hughes & Knight, Bogalusa, for Washington Parish Police Jury and Commercial Union Ins. Co.

Marion B. Farmer, Covington, for Charley Spears.

Before EDWARDS, LEAR and SARTAIN, JJ.

SARTAIN, Judge.

The incident giving rise to this litigation was an altercation between Frank H. Augustine (Augustine) and Charley Spears (Spears), both of whom at the time were employees of the Washington Parish Police Jury (Police Jury). Augustine brought suit¹ against the Police Jury and Commercial Union Insurance Company (Commercial Union), the Police Jury's workmen's compensation insurance carrier, for compensation benefits under the act. He also brought a delictual action² against Spears and Commercial Union, which also carried the liability insurance for the Police Jury. These suits were consolidated for trial. The delictual action was tried to the jury and the workmen's compensation case was tried to the district judge. Augustine now appeals from adverse judgments in both suits.³ We affirm.

Before we address the issues on the merits, it is necessary that we dispose of two preliminary matters relating to the delictual action. Plaintiff re-urged at oral argument in this court his previously rejected motion to remand. He contends that the record is materially deficient in that it fails to contain a transcript of the voir dire examination, the opening and closing arguments of counsel, and several conferences held in chambers. While these items are not included in the transcript, counsel fails to show or even allege in his motion that improper questions were propounded to the prospective petit jurors, or that any prejudicial statements were made in the opening and closing arguments of opposing counsel, or to even identify the subject of those matters he avers were concluded in chambers and should have been included in the appellate record. It was for this reason that his earlier motion to remand was denied. Absent any further particularization as to error, his instant motion is without merit.

C.C.P. art. 2128 provides in pertinent part: "The form and content of the record on appeal shall be in accordance with the rules of the appellate court, except as provided in the constitution." Rule 1, Section 3, of the Uniform Rules Courts of Appeal, prescribes in detail the form and content routinely required of the record on appeal. Voir dire examination, opening and closing arguments, and routine preliminary matters agreed to in chambers are not listed as required contents of the record. They can be made a part of the record by timely request of counsel at the hearing on the merits or by raising an issue on appeal as to error in the form and content of the voir dire examination or the arguments of counsel. Fontenot v. Garland, 352 So.2d 251 (La.App. 3d Cir. 1977). Just the mere absence of these items in the record on appeal and nothing more does not warrant or justify a remand for their ultimate transcription and inclusion in the record.

The other preliminary matter relates to defendants' motion to dismiss the appeal in the tort suit.⁴ Defendants contend that the plaintiff, by filing only a motion to remand (for reasons stated above) and no brief on the merits, has abandoned his appeal in the tort suit. We deny the motion.

Defendants undoubtedly rely on Rule 7, Section 5(b)⁵ of the Uniform Rules Courts of Appeal, which authorizes the intermediate appellate courts of this state to consider as abandoned and dismiss the appeal in any case in which the appellant has failed to appear or file a brief prior to the time the case is called for oral argument. The second sentence of the pertinent section of the rule, however, is abundantly clear. "Appearance" is classified as either "personal" or "the filing of a written instrument negating any intent to abandon the appeal . . . ." Counsel's brief in support of his motion, filed two days before oral argument, and his appearance at oral argument re-urging the same are more than sufficient to negate any intent to abandon the appeal.

ON THE FACTS

As to be expected, there are two versions of the events leading up to the altercation between Augustine and Spears.

The record reflects that both were employed by the Police Jury as road maintenance personnel of District 3. The heavy equipment for this unit was kept at an equipment barn in Bogalusa. The normal workday was from 7:00 o'clock A.M. to 4:00 o'clock P.M. Spears, as unit supervisor, would generally arrive at 6:45 A.M., unlock the gate, and await the arrival of the crew working under his direction.

Some of the crew members arrived in their own transportation. They would remove the equipment, graders, front end loaders, and equipment trucks, from the barn, place their private vehicles in it, and then repair to the various work sites. On the Monday morning of December 1, 1975, Augustine, who was to operate a loader, was told by Spears to bring extra oil because the loader he was to use that day had developed a leak. He was also told to remove the defective part and bring it in with him that afternoon. The loader had been left over the Thanksgiving holidays on private property some distance away from the barn. From this juncture on, the factual versions of the remaining events of the day differ.

Augustine stated that he last used the loader on the previous Wednesday and that when he left it, it was not leaking oil. The machine had been used and moved over the weekend, he presumed by Spears. On his way to the new location he went by the old location and personally satisfied himself that, there being no oil on the ground, he had not been the operator to break the machine. After he had concluded his work for the day, he removed the broken line from the machine and brought it in with him. He placed it on a barrel in the barn. He claims to have arrived back at the barn around 3:20 P.M. There is no dispute over the fact that employees of the Police Jury are free to leave the barn upon their return and are not required to wait until 4:00 P.M.

Plaintiff stated that he did not leave the barn area because a fellow worker (Eugin) had not yet returned. He felt that as a courtesy to his follow employee he would go and get him if it were necessary.

Plaintiff further stated that as Spears drove up on a road grader he (Spears) started cursing him and accusing him of breaking the machine. He claims that he followed Spears into the barn to give him the broken part and as the two were returning to their respective pickup trucks Spears became more aggravated, cursed him further, and made threatening gestures toward him. Believing that Spears was about to assault him, he returned to his truck to remove his glasses. Before he could look back to Spears' direction, Spears struck him three times about the head with a hammer.

Spears' version is that he returned to the lot between 4:15 P.M. and 4:20 P.M. He was driving a grader at the time. He got off, opened the gate, removed his truck from the barn, and drove the grader into the barn. He said that immediately on his arrival Augustine started accusing him of having broken the loader. He said that Augustine followed him into the barn and then back out to where their respective pickup trucks were parked. He stated that he repeatedly told Augustine that it made no difference how the machine was broken or who broke it, that the Police Jury would pay to have it fixed and for him to go home because it was getting late. However, Augustine continued to follow and curse him. At one point, Augustine called him a "lying S. B." and, according to Spears was eyeing a pine limb that was on the ground just a few feet away. Spears invited Augustine to take off his glasses and repeat the statement. He said Augustine removed his glasses by throwing them into the cab of his pickup truck and reached down and picked up the pine limb. Believing that he (Spears) was about to be assaulted, he turned to his truck which was just a few feet away and picked up a hammer to defend himself. Augustine was then standing there knocking the mud off the limb and grinding the bark off of one end to improve his grip. He claimed that Augustine then advanced on him swinging the limb. He ducked and hit Augustine on the side of the head with the flat side of the hammer. Augustine continued to advance and swing the limb again. Spears jumped back but the limb tore the buttons from his (Spears) jacket. He hit Augustine for the second and last time with the hammer. Augustine stumbled, grabbed some sand and gravel, and threw it into his face. He continued to retreat and Augustine to follow, swinging the limb, until he (Augustine) observed that he was bleeding and broke off the encounter. Augustine got in his truck and left. Spears waited for Eugin to arrive and then he left.

The only other witness to the fight was Mrs. Eugin. Her testimony generally corroborates that of Augustine. She said she arrived at the lot between 3:15 P.M. and 4:00 P.M. She observed Augustine follow Spears into the barn and then the two of them as they walked back to their trucks. She next saw Augustine remove his glasses and place them in his truck. Spears at the time went to his truck and picked up "something." Then the next thing she saw was Spears hit Augustine before the latter had turned back around. She did not hear any of the conversation between the two because her vehicle radio was on. She was totally surprised by the turn of events and immediately left. Her testimony in other respects, however, differs from that of Augustine and Spears, such as the time of...