Deville v. Wilks, 2885
| Decision Date | 11 December 1969 |
| Docket Number | No. 2885,2885 |
| Citation | 229 So.2d 128 |
| Parties | Zeb DEVILLE, Sr., Plaintiff-Appellant, v. Rodney J. WILKS, Defendant-Appellee. |
| Court | Court of Appeal of Louisiana — District of US |
Gravel, Roy & Burnes, by Glynn W. Reynolds, Alexandria, for plaintiff-appellant.
Mansour & Lauve, by Alfred Mansour, Alexandria, for defendant-appellee.
Before FRUGE , HOOD, and MILLER, JJ.
This is an action for damages instituted by Zeb Deville, Sr. against Rodney J. Wilks. Plaintiff alleges that he sustained physical injuries when he was assaulted and struck by Wilks. Judgment was rendered by the trial court rejecting plaintiff's demands, and plaintiff has appealed.
The issues presented are: (1) Was plaintiff Deville the aggressor in the altercation which resulted in his injuries? and (2) in the alternative, did defendant Wilks use excessive force in resisting an attack by Deville?
The evidence shows that plaintiff and defendant had two physical encounters on October 14, 1963. The first one occurred about 8:00 o'clock that morning on the shoulder of Louisiana Highway One, near the City of Alexandria. The parties were separated by James Bailey, and shortly thereafter at Bailey's suggestion they left the scene in separate vehicles to go to the Sheriff's office in Alexandria for the purpose of settling their dispute in a more orderly manner there . About thirty minutes later, after they had driven about three miles and before they reached the Sheriff's office, they brought their vehicles to a stop near a curb on Rapides Avenue in Alexandria, and they became engaged in the second altercation or fight there. Plaintiff sustained injuries to his head and face as a result of one of these affrays.
There is a dispute as to which of the two parties was the aggressor in the First encounter and which was the aggressor in the Second one. There also is a conflict in the testimony as to whether plaintiff's injuries were sustained as a result of the First altercation or as a result of the Second one. The trial judge concluded that plaintiff 'without any question' was the aggressor in the Second encounter, and that his injuries were sustained as a result of that Second altercation.
Plaintiff Deville testified that in the First altercation which occurred on Highway One, Wilks began beating him about the face and head, without any warning or provocation whatsoever, and that as a result of that beating he sustained the injuries which form the basis for this suit. He stated that as a result of that first encounter he was 'all bloody,' and that his shirt was torn and bloody. Defendant Wilks admits that he tried to strike plaintiff one time in that affray, but he stated that he missed and that he thus did not hit plaintiff at all during the first encounter. He testified that plaintiff sustained no injuries or bruises of any kind, and that no blood was shed and no clothes were torn as a result of that altercation.
With reference to the Second encounter, plaintiff Deville concedes that he struck the initial blow immediately after the parties met on Rapides Avenue, and that he continued in his attempts to strike other blows until they were separated. He testified that Wilks did not strike him at any time during the second altercation, that plaintiff 'took a swing' at Wilks when they met on that occasion, and that all Wilks did thereafter during the second encounter was to 'push' Deville and hold him at arm's length so that Deville could not strike Wilks any more. Plaintiff thus contends that his injuries were not sustained in the second altercation. Defendant Wilk's version of the second affray is entirely different. He testified that Deville began beating him about the head before Wilks could get out of his truck, and that after Wilks succeeded in getting his feet on the ground he blocked several swings made at him by Deville, and that he then struck plaintiff several times with his fists, causing plaintiff to sustain injuries about his face and head . He stated that Deville was bleeding immediately after the second encounter.
Mr. James Bailey and his wife witnessed both encounters. After Bailey intervened and separated the parties from their first altercation on Highway One, he and his wife followed them into town, and they not only witnessed the second incident, but Mr. Bailey also separated them...
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