Brasseaux v. Girouard

Decision Date18 May 1972
Docket NumberNo. 3804,3804
Citation269 So.2d 590
PartiesDunice P. BRASSEAUX, Plaintiff-Appellant, v. Ray J. GIROUARD and Pennsylvania Millers Mutual Insurance Company, Defendants- Appellees.
CourtCourt of Appeal of Louisiana — District of US

Domengeaux & Wright by W. Paul Hawley, Lafayette, for plaintiff-appellant.

J. Minos Simon, and Ronald E. Dauterive, Robert W. Mahoney and John Allen Bernard, Davidson, Meaux, Onebane & Donohoe, Lafayette, for defendants-appellees.

Before SAVOY, HOOD and MILLER, JJ.

MILLER, Judge.

Plaintiff Mr. Dunice P. Brasseaux appeals the jury determination that defendant Mr. Ray J. Girouard was justified in shooting him. We reverse and award damages.

Some issues relating to this case were decided in Brasseaux v. Girouard, 214 So.2d 401 (La.App. 3 Cir. 1968) and State ex rel. Brasseaux v. Spell, 238 So.2d 254 (La.App. 3 Cir. 1970), writ refused on finding '. . . no error of law in the ruling complained of.' 256 La. 855, 239 So.2d 359 (1970).

At about 7:30 p.m. on June 23, 1967, Girouard shot Brasseaux using his 16 gauge automatic shotgun. No witness suggested that visibility was obscured by darkness or obstructions. The incident occurred in open pasture. When shot, Brasseaux was at least 35 feet north of Girouard (the investigating officer placed the parties more than 50 apart) and standing near to but on the far side of the east-west fence which Girouard had just constructed. There were at least two strands of barbed wire on the fence and there is no suggestion that Brasseaux was making a move to cross the fence.

Girouard's pickup truck was facing west and about 30 to 42 feet south of the fence. At the time of the shooting Girouard was behind the driver's side of the hood of his pickup truck or perhaps just in front of the left fender of his pickup truck. Seated in the passenger's seat of Girouard's pickup truck was his brother-in-law Mr. Jerome Judice. Girouard's son-in-law and two nephews (Judice's sons) were at the rear of the pickup truck or in the bed of the truck.

According to Girouard, at the time of the shooting, Brasseaux was some 100 feet from his own station wagon which had been parked heading east and located on the Brasseaux tract west of the scene of the incident. Seated in the right front seat of the Brasseaux station wagon was an employee (Mr. Wilmer Broussard) of a friend of Brasseaux.

Girouard admitted that he never saw that Brasseaux had a weapon either before or after the shooting. Vol. II, p. 13. But according to Girouard and his son-in-law and nephew, as Brasseaux walked from his station wagon to a point within two or three feet of the newly constructed fence, Brasseaux was shouting at Girouard and cursing Girouard. For the last 30 feet that Brasseaux walked toward Girouard, Brasseaux had his right hand concealed behind his back and was shaking the fingers of his left hand at Girouard.

When Brasseaux started walking toward Girouard, Girouard was with his son-in-law and two nephews at the back of his pickup truck loading tools. Girouard states that he became frightened because Brasseaux was hiding his right hand. While Brasseaux walked toward the Girouard pickup truck (but on Brasseaux property), Girouard walked along the driver's side of his pickup truck (the truck was then between Brasseaux and Girouard) and picked up his shotgun together with two or four shells and loaded the gun (with one shell according to Girouard) as he walked to the hood of his truck. On reaching that point he aimed (Girouard says from the hip, but others said from the shoulder) and fired at Brasseaux's right shoulder. When Brasseaux saw Girouard aiming at him, he tried to protect his face by putting both hands up. Brasseaux took the full load of number 7 shot in his empty right hand and his face, chest and lfet forearm. Brasseaux fell to the ground on his property some three feet from the fence. There he remained until sheriff's deputies and an ambulance arrived to take him to the hospital.

There was substantial hearsay testimony in the record to establish that Girouard had heard that Brasseaux was 'a mean man, a drunkard and a trouble maker, a fighter, a bully.' The evidence shows that Brasseaux was guilty of the following offenses and received these sentences.

February 28, 1957--Mayor's Court--Carencro--

Fighting and Disturbing the Peace.

Fine.$9.00 and costs.

March 5, 1957--Mayor's Court--Carencro--

Reckless Operation of an Automobile

Fine.$9.00 and costs.

Disturbing the peace.

Fine.$9.00 and costs.

April 6, 1957--Mayor's Court--Carencro--

Reckless Driving of an Automobile

Fine $10.00 and costs.

Disturbing the peace.

Fine $10.00 and costs.

January 28, 1961--Mayor's Court--Carencro--

Disturbing the peace.

Fine $10.00 and costs.

October 7, 1961--Mayor's Court--Carencro--

Fighting and Disturbing the peace.

Fine.$9.00 and costs.

February 8, 1964--Mayor's Court--Carencro--

Drunk and Disturbing the Peace.

Fine.$9.00 and costs.

October 30, 1964--Mayor's Court--Carencro--

Reckless Operation of an Automobile.

Fine $14.00 and costs.

October 1, 1964--District Court--Lafayette--

Resisting an Officer.

Sentence 60 days, suspended.

Disturbing the Peace.

Sentence 60 days concurrent, suspended

$150 peace bond provided for on his own recognizance.

There was no showing that Brasseaux was known to have carried a gun or to have had a reputation of having had or used a weapon.

Brasseaux's testimony was discredited by several witnesses called by Girouard. Brasseaux had testified that most of these witnesses were friendly to him.

During 1964 Girouard purchased the tract of land on which the fence was erected. Brasseaux bought the tract to the north in 1965. The neighbors were friendly until May of 1967 when two of Brasseaux's pigs broke into Girouard's pig pen. Brasseaux obtained help from the Sheriff's office to help look for the two pigs. When they were found, Brasseaux indicated that he thought Girouard stole the pigs but the Sheriff's Deputy was convinced that Girouard was innocent. No charges were filed but the neighbors were no longer friendly, each being satisfied that the other was at fault.

On or about June 9, Girouard started construction of the east-west fence to divide the two properties. The fence was being built along a previously surveyed line which had never been fenced. While Girouard was away, Brasseaux cut the wire from a portion of the fence and threw the wire in a nearby coulee. Girouard complained to a deputy sheriff and Brasseaux admitted to the deputy that he had cut the fence. No charges were filed. Girouard then employed the surveyor to resurvey the line and it was determined that the fence was being built about 4/10ths of a foot south of Girouard's north boundary.

About this time, Brasseaux was shopping at a neighborhood store and was overheard to say that he was going to ring Girouard's neck and throw him into the bayou. This conversation was reported to Girouard by another neighbor.

Some thirty minutes before the shooting, Brasseaux told another neighbor that he was going back in the woods where the property was located and if he met Girouard '. . . one of us is going to stay on the ground.' This was not communicated to Girouard.

On this evidence defense counsel suggests that Girouard '. . . saw in (Brasseaux) a man of violence, a man given to action and imposing his will upon others threatening a man who was only trying to improve his own lot in life, moving toward him, hiding one arm behind his back all the while cursing and vilifying him. Mr. Girouard was pushed to the wall. For him, there was no escape, there was no alternative. His only alternative was self-defense.'

We do not agree. By his own testimony, Girouard was in a position behind his truck some 35 feet from Brasseaux. Brasseaux made no effort to cross the fence. Although Brasseaux was cursing and vilifying him and had his right arm behind his back, no weapon was observed. Girouard was armed with a 16 gauge automatic shotgun with two to four shells and ample time to load. Girouard had four relatives closeby while Brasseaux was standing alone.

In concluding that Girouard was justified in defending himself from what he reasonably believed to be imminent danger of great bodily injury, the jury was not instructed as to the applicable law. Since we review the facts as well as the law, we will not remand the case for another jury trial.

The privilege of self-defense in tort actions is well recognized by our jurisprudence. Where a person reasonably believes he is threatened with bodily harm, he may use whatever force appears to be reasonably necessary to protect against the threatened injury. Each case depends on its own facts, such as, for instance, the relative size, age and strength of the parties, their reputations for violence, who was the aggressor, the degree of physical harm reasonably feared and the presence or absence of weapons. Roberts v . American Employers Ins. Co., Boston, Mass., 221 So.2d 550 (La.App. 3 Cir. 1969), and authorities cited at 554.

The established rule is that a party who resorts to excessive violence and unnecessary force in repelling an assault, although initially acting in self-defense, becomes liable as an aggressor and is subject to an action for damages for assault and battery. Deville v. Wilks, 229 So.2d 128, 130 (La.App. 3 Cir. 1969). See also Tripoli v. Gurry, 253 La. 473, 218 So.2d 563 (1969).

A person is not justified in using a dangerous weapon in self-defense where the attacking party is not armed but commits the battery by means of his fists or in some other manner not essentially dangerous to life or limb. Bethley v. Cochrane, 77 So.2d 228, 231 (La.App.Orls.1955).

Brasseaux's bad reputation and his prior threats alone did not warrant the shooting. The force used by Girouard was excessive. Girouard's position behind the truck near four relatives and armed with an...

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