Dorsey v. Couteau

• Decision Date: 26 June 1972
• Docket Number: No. 8905,8905
• Citation: 264 So.2d 800
• Parties: Charles DORSEY v. Frank COUTEAU, Jr., a/k/a Frank Cauto and Frank Courteaux.
• Court: Court of Appeal of Louisiana — District of US

Page 800

264 So.2d 800

Charles DORSEY v.Frank COUTEAU, Jr., a/k/a Frank Cauto and Frank Courteaux.

No. 8905.

Court of Appeal of Louisiana, First Circuit.

June 26, 1972.

Rehearing Denied July 28, 1972.

Otto B. Schoenfeld(Denechaud & Denechaud), New Orleans, for appellant.

Emile R. Sternfels(Triche & Sternfels), Napoleonville, for appellee.

Before LOTTINGER, SARTAIN and ELLIS, JJ.

SARTAIN, Judge.

This action in tort seeks damages for personal injuries sustained by Charles Dorsey and committed upon him by the defendant, Frank Couteau, Jr.From an adverse judgment of the 23rd Judicial District Court, Parish of Assumption, the plaintiff has appealed.

On March 1, 1970, the plaintiff was shot by the defendant while being ejected from Couteau's Bar in Napoleonville, Louisiana, which shooting precipitated this litigation.More particularly, the evidence shows that on that day, at approximately 3:00 o'clock p.m., Dorsey entered the defendant's barroom, a place which he patronized with some degree of frequency.Soon, he began occupying a table with several other men, and in the course of the hours that followed he and his acquaintances consumed whiskey and beer in quantity.The defendant had employed a band for the entertainment of his customers and it appears that it was playing that afternoon to what was considered to be a good crowd of some thirty to fifty people.

At approximately 6:30 o'clock p.m., the plaintiff, by his own admission, threw two glass bottles in the direction of a female patron, Mrs. Millie Jones Bush, who was standing at the bar.Although this was done only in an effort to attract her attention, it appears that one of those thrown hit her on the feet.The plaintiff was described at that time to be in a 'woozy' condition, but not totally drunk.Mrs. Bush approached Dorsey's table to have words with him concerning his actions.

At the same time, Couteau, who had been preparing food in an annex to his bar and who had been informed by another customer of Dorsey's behavior, went to the bar, put a .38 caliber pistol in his pocket, stopped the band, and approached Dorsey's table to require that he leave.Words were exchanged by the parties hereto and it appears that Dorsey either decided reluctantly to leave or was physically forced by a companion, Gilbert Jones, or Couteau, or both, toward the door.At this point, the testimony becomes irreconcilably conflicting.

As the plaintiff reached the front swinging doors, it is unclear whether he went through them under his own power or that of Jones with the shoving of Couteau, or whether Couteau hit him, as claimed by Dorsey, on the back of his head with the butt of the pistol, flooring him on the porch outside.In either case, he went through the front doors and, seconds later, was shot once in the abdomen by Couteau, from which he sustained serious injuries.

The plaintiff here seeks recovery for this alleged unprovoked attack upon his person.The defendant claims, however, that he shot in self defense only, as the plaintiff attacked him and cut him with a knife, thus necessitating the defensive action that he took.Critical, therefore, to a determination of this case are the actions of the plaintiff in the moments immediately preceding the shooting.

The appellant contends that as he fell through the doors after having been struck on the back of the head by the plaintiff with the gun butt, that he tried to get back to his feet and that, without further provocation, Couteau shot him without reason.The defendant contends, however, that Dorsey came back through the swinging doors into the bar with a knife in his hand and that he(Couteau) raised his hands to defend himself, that Dorsey slashed him with a knife, and that he then pulled his gun and shot Dorsey in defense of his life.

The trial...