Gassiott v. Gordey

• Decision Date: 18 January 1966
• Docket Number: No. 1606,1606
• Citation: 182 So.2d 170
• Court: Court of Appeal of Louisiana — District of US
• Parties: Slathern E. GASSIOTT, Sr., et al., Plaintiffs-Appellants, v. M. L. GORDEY, d/b/a Gordey's Supermarket, Defendant-Appellee.

Page 170

182 So.2d 170

Slathern E. GASSIOTT, Sr., et al., Plaintiffs-Appellants, v. M. L. GORDEY, d/b/a Gordey's Supermarket, Defendant-Appellee.

No. 1606.

Court of Appeal of Louisiana, Third Circuit.

Jan. 18, 1966.

Teekell & Nugent, by Howard N. Nugent, Alexandria, for plaintiffs-appellants.

Provosty, Sadler & Scott, by LeDoux R. Provosty, Jr., Alexandria, for defendant-appellee.

Before FRUGE , SAVOY and HOOD, JJ.

SAVOY, Judge.

This is an action in tort instituted by Slathern E. Gassiott, Sr., and his son, Slathern Evans Gassiott, against M. L. Gordey, d/b/a Gordey's Supermarket, arising out of the death of five cows. For convenience, plaintiffs will sometimes be referred to as Mr. Gassiott, Sr. and Mr. Gassiott, Jr. It is alleged that defendant caused a load of discarded merchandise and substances from his mercantile establishment to be dumped on the open range near the home of Mr. Gassiott, Sr., north of Glenmora in Rapides Parish, Louisiana; that certain of the substances and compounds dumped contained arsenic; that plaintiffs' cows ate these substances and died from arsenic poisoning. It is alleged that defendant was negligent in disposing of the dangerous and deadly substances on the open range, where cattle customarily grazed, without taking safeguards for the protection of livestock; and, in failing to deposit these substances in the area provided by the Town of Glenmora for depositing refuse.

The defendant filed an answer in which the allegations of plaintiffs' petition were denied, and it was alleged that if the defendant were negligent in disposing of poisonous substances as alleged by plaintiffs, then plaintiffs were contributorily negligent in allowing their livestock to graze in an area set aside and used by the Town of Glenmora, and its residents, as a dump.

After a trial on the merits, the district court rendered judgment for defendant, and the plaintiffs have appealed to this Court.

Plaintiffs contend that the district court erred in finding plaintiffs had not carried the burden of proof in the case. With reference to the holding by the district court that the source of the deadly substances which killed the cows had not been identified with the definiteness and reasonable certainty required by law, plaintiffs maintain that the trial court, in effect, required plaintiffs to show that no other source of arsenic existed, no matter how remote, academic or improbable. It is urged that the circumstantial evidence presented was sufficient to prove all necessary elements of the case to a reasonable degree of certainty and was sufficient to exclude with a fair amount of certainty every other reasonable hypothesis, other than the one relied upon.

The defendant maintains that plaintiffs have presented only an interesting set of circumstantial possibilities concerning the death of the five cows, and a suggested cause thereof, but they have not shown by a preponderance of the evidence that the defendant was responsible for the tragedy. It is urged that the facts do not show that the substances dumped from the defendant's store contained arsenic, or that such arsenic from this pile of rubbish was consumed by the plintiffs' cows, or that such caused the death of the cows, and, alternatively, that the defendant was not guilty of negligence in disposing of trash and rubbish from his place of business in the area set aside as a dump for the Town of Glenmora.

The record shows that Slathern E. Gassiott, Sr., who lives on the Melder Highway just north of Glenmora, in Rapides Parish, Louisiana, owns about fifty head of cattle that graze on the open range in the area of his home. His son, Slathern Evans Gassiott, who lives in Port Arthur, Texas, also owns some cattle that range with his father's herd. Some of the cattle return each evening to the barnyard at Mr. Gassiott's home, and are penned in for the night.

Across the highway from Mr. Gassiott, Sr's home and to the south of Melder Highway, there is located property belonging to Mr. Gassiott, Sr., Roy O. Martin, and the Pringle Estate. The Pringle property is eroded with ditches, and by agreement with the Pringle Estate, the Town of Glenmora uses a portion of this property as a dump. The specific area which was considered as designated for the dump area was a large ditch or ravine on the Pringle property, which is approximately six to ten feet in depth, by a width of fifteen to twenty feet, and a length of two hundred to three hundred feet. There were other smaller ditches in the area where garbage was also dumped. A fence partially encloses part of this area. The dump is located approximately one-quarter mile southwest of Mr. Gassiott, Sr .'s home. Although the dump is customarily reached from the Pitkin Road which passes to the south of it, it is also accessible from the Melder Highway. From a point not far from Mr. Gassiott, Sr.'s home, a small winding dirt road extends from the Melder Highway southward for approximately one-half mile to the northern part of the dump. Photographs were introduced into evidence showing that trash was dumped where this road joins Melder Highway, and there are numerous trash piles scattered throuth the area along this dirt road.

A cow trail, which passes along the dirt road part of the way, extends in a southwest-northeast direction, and passes a pond of water near the dump area on beyond and to the north of Mr. Gassiott, Sr.'s home.

For some time prior to October 24, 1963, a bridge was out of condition and prevented access to the dump from the Pitkin Road, and the town garbage crew and others were using the entrance off the Melder Highway. On about October 24, 1963, one load of rubbish from the defendant's place of business was dumped along the dirt road about 225 yards to the northeast of the dump.

Mr. Gassiott, Sr. testified that five cows failed to come in on the evening of October 24, 1963. On the next morning, he found one of these cows laying at the gate. He testified that when he opened the gate, the cow got up and staggered into the barn. The cow died about three hours later. Mr. Gassiott, Sr. walked up the cow trail and found a dead cow, and then called a veterinarian, Dr. John F. Jones, who practices in Alexandria, Louisiana. Dr. Jones made a temporary diagnosis that the cow died of poisoning. Later, three other dead cows were located, making a total of five. Three of the cows belonged to Mr. Gassiott, Sr., and two belonged to his son.

Mr. Gassiott, Sr. had seen a truck of the Town of Glenmora entering the road leading to the dump, and believing that possibly the town was responsible for the death of his coes, contacted the mayor of Glenmora, Ted Bartlett. The mayor and an employee of the town, Obie Howard, went with Mr. Gassiott to examine the piles of trash and rubbish hauled to the dump by the town. Nothing significant was found in these trash piles. These piles of rubbish were located north of the area designated as the dump, but nearer the ravine than the defendant's pile of rubbish. While investigating the area, the pile of rubbish dumped for the defendant was located. Evidence was found showing that cows had been rummaging through this trash pile. Some notebooks and bill heads with the defendant's name were found there, which were taken by Mr. Gassiott, Sr., and introduced into evidence at the trial of this case. Believing the trash pile might contain poison, Mr. Gassiott, Sr., and the mayor decided to burn the trash pile. They piled up trash, old cases, boxes and furniture located in the area, and used coal oil or gasoline to start the fire. Later, Mr. Gassiott, Sr., decided the burning...