Braud v. Kinchen

• Court: Court of Appeal of Louisiana
• Writing for the Court: COVINGTON
• Citation: Braud v. Kinchen, 310 So.2d 657 (La. App. 1975)
• Decision Date: 10 March 1975
• Docket Number: No. 10175,10175
• Parties: John Hubert BRAUD v. Hollis KINCHEN.

Page 657

310 So.2d 657

John Hubert BRAUD v. Hollis KINCHEN.

No. 10175.

Court of Appeal of Louisiana, First Circuit.

March 10, 1975.

Gordon R. Crawford, Gonzales, for appellant.

Miriam Attaya, Gonzales, for appellee.

Before LOTTINGER, COVINGTON and BAILES, JJ.

COVINGTON, Judge.

This is a suit by John Hubert Braud, plaintiff-appellant, to recover the sum of $3,200.00 allegedly stolen from him by Hollis Kinchen, defendant-appellee, during the time that defendant resided in plaintiff's house. Plaintiff owned and operated a small food store which was attached to his residence. Plaintiff's claim is based on a series of thefts of various sums of money from the store's cash register between the dates of April 1, 1971 and August 13, 1971. During the time in question the defendant was a guest in the house of the plaintiff, but was not an employee of the plaintiff and had no connection with the operation of the store.

After hearing the evidence, the trial court found the evidence insufficient to establish that the defendant had stolen the sums of money from the plaintiff and dismissed the suit. Plaintiff has devolutively appealed this judgment.

On the trial a question arose concerning the admissibility of certain summary sheets offered in evidence by the plaintiff. The trial court correctly ruled that they were 'subject to the objection that they were not made in the regular course of business and actually constitute self-serving declarations.' See LSA-C.C. Art. 2248; Britton v. Holloman Lumber Co., La.App., 7 So.2d 202, 204 (2 Cir. 1942); Comment, Business Records in Louisiana as an Exception to the Hearsay Rule, 21 La.L.Rev. 449, 459 (1961).

Plaintiff complains of this ruling, contending that due to modern business methods the stringent rule of inadmissibility of Article 2248 of the Civil Code has been relaxed. In support of his position the appellant cites the case of Crosby v. Little River Sand and Gravel Development, 212 La. 1, 31 So.2d 226 (1947). The Crosby case is distinguishable from the instant case. There the records were made daily from supporting memoranda. Here the summary sheets were not actually made in the regular course of business but on several occasions were reconstructed. Additionally, the plaintiff herein did not use modern business methods in the keeping of his records nor in the operation of his business.

The main issue involved in this appeal is whether there was sufficient proof of defendant's responsibility for plaintiff's losses. This issue was resolved by the trial court in the defendant's favor. It is to this point that the thrust of the appellant's argument is directed.

Appellant argues that in denying his claim the trial court imposed a higher standard of proof than the law allows. In support of his argument, appellant cites several opinions by the courts to the effect that a plaintiff may prove his case by circumstantial evidence and his proof need not be conclusive, but must only show that it is more probable than not. See Town of Slidell v. Temple, 246 La. 137, 164 So.2d 276 (1964); Naquin v. Marquette Casualty Company, 244 La. 569, 153 So.2d 395 (1963); American Employers Ins. Co. v. Schoenfield, La.App., 144 So.2d 595 (4 Cir. 1962). We are cognizant of these cases and are in accord with their holdings. However, we do not feel that their application to the factual situation in the instant case requires a judgment favorable to the plaintiff. While it is true that a plaintiff need not negate all remote possibilities in order to prevail nor is he obliged to prove his case to a mathematical certainty, nevertheless, mere possibility, suspicion or speculation can not form a proper basis for a judgment in plaintiff's favor. White v. Johness, 237 La. 1074, 112 So.2d 717 (1959); Hargis v. Travelers Indemnity Company, La.App., 248 So.2d 613 (3 Cir. 1971).

In a civil case the plaintiff is required only to prove his claim by the preponderance of evidence, not beyond a reasonable doubt. Lee v. Carwile, La.App., 168 So.2d 469, 474 (3 Cir. 1964); Sanders, The Anatomy of Proof in Civil Actions, 28 La.L.Rev. 297 (1968). By the preponderance of evidence is meant evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not. Gassiott v. Gordey, La.App., 182 So.2d 170, 175 (3 Cir. 1966). Of course, the plaintiff bears the burden of proving each and every element of his claim by a preponderance of the competent evidence. Johnson v. Heil, La.App., 284 So.2d 666, 668 (3 Cir. 1973).

The plaintiff's proof may be made not only by direct evidence, but may be established by circumstantial evidence. However, a plaintiff relying upon circumstantial evidence is required to produce evidence which excludes, with a fair amount of certainty, every other reasonable hypothesis but the one relied on. Bickham v. Wax Lumber Company, La.App., 84 So.2d 60, 62 (1 Cir. 1955); see also Gassiott v . Gordey, supra.

Furthermore, it is now generally accepted that a finding of fact by the trial court will not be reversed on appeal unless manifestly erroneous. Bailey v. Vinton Nursery, Inc., La.App., 285 So.2d 317, 319 (3 Cir. 1973);...