Livingston v. Henry & Hall

• Decision Date: 18 June 1952
• Docket Number: No. 7819,7819
• Citation: Livingston v. Henry & Hall, 59 So.2d 892 (La. App. 1952)
• Parties: LIVINGSTON v. HENRY & HALL et al.
• Court: Court of Appeal of Louisiana

Page 892

59 So.2d 892

LIVINGSTON v.HENRY & HALL et al.

No. 7819.

Court of Appeal of Louisiana, Second Circuit.

June 18, 1952.

Rehearing Denied July 7, 1952.

Cook, Clark & Egan, Shreveport, for appellants.

Godfrey & Edwards, Many, for appellee.

McINNIS, Judge.

This is a suit by the widow for herself and two children for compensation on account of the death of her husband, who was shot and killed by a man named H.E. Lovelady, on May 21, 1950.The defendants are Henry & Hall, a commercial partnership, which had a subcontract to hard-surface a part of the Many-Pendleton Ferry Highway in Sabine Parish, and its compensation insurer, Aetna Casualty & Surety Company.

Plaintiff alleges that for sometime prior to May 21, 1950, her husband was employed by the defendant partnership as a truck driver and laborer in connection with the hard-surfacing of the above named highway, and that under the terms of his employment he was working where he was killed; that Lovelady drove his truck near where the work was being done, and for a time followed the workers, to the knowledge of the foreman, and that Lovelady called her husband to the truck he(Lovelady) was driving and shot him and killed him; that there was no aggression on her husband's part; that the killing arose out of decedent's employment and in the course thereof; that on May 5, 1950, Lovelady had become embittered at those doing the road construction, including deceased, had threatened the road crew with firearms, and had directed his abuse particularly toward deceased; that the disturbance arose directly from the fact that the work was in progress and in turn resulted in or contributed to the killing; that the disturbance took place on the highway near the home of Lovelady.

The wage of deceased is alleged to be $52.50 per week, and funeral expenses of $300 are demanded.

A plea of vagueness was filed and answered, setting forth more of the details of the difficulty of May 5, 1950.An exception of no cause or right of action was then filed.This exception was submitted on briefs to be filed.The minutes of court do not disclose any further action on the exception, and it is not mentioned in the written opinion of the district judge.However, plaintiff says in brief that it was referred to the merits.

Defendants then answered, denying all the substantial allegations of plaintiff's original and amended petition, and alleging that the wage of deceased was $30 per week.As a special defense it is alleged that the fatal shooting of Livingston by Lovelady resulted from personal difficulty between the men, brought on by personal attentions which Livingston was directing toward Lovelady's wife, which was the sole cause of the shooting; that the killing did not occur within the course and scope of Livingston's employment, nor did it arise out of his employment.

After trial on the merits, the district judge, for reasons assigned in writing, rendered judgment in favor of plaintiff for compensation for 300 weeks, beginning May 21, 1950, at the rate of $24.15 per week, until January 9, 1951, and thereafter at the rate of $30 per week, and for $202 burial expenses, with interest and costs.From this judgment defendants are prosecuting suspensive and devolutive appeal.

There is no serious controversy as to the rate of pay of deceased.Defendants in argument and brief in this court made no mention of the amount fixed by the judgment, but stand on the proposition that there can be no recovery at all, and this is the question for determination.

There are two theories as to the reason Lovelady killed the deceased.That of plaintiff is that the killing was the aftermath of the difficulty on May 5, 1950.On that day the road crew was blacktopping a section of the road near the home of Lovelady.In order to surface the road, short sections of it would have to be closed to traffic for fifteen to thirty minutes, while gravel was being applied on top of the asphalt.A man named Bordelon, from Texas, drove up with his wife in the car and was told he would have to wait a few minutes.He insisted on going through and Livingston was told to place the truck he was driving crossway of the road so as to effectively block passage of vehicles.Bordelon still insisted on going through and got out of his car and encountered Dewitt LaFiette, an employee of the Department of Highways, and LaFiette knocked him down.Bordelon and his wife then went in the yard of Lovelady, who was there with his brother, Cecil, and the Loveladys gave Bordelon a pistol and his wife a rifle, whereupon LaFiette left and did not hear any more.

Jimmie Wray was one of the truck drivers on the job and he saw and heard the trouble.He says that Bordelon and the Loveladys were cursing all the people on the road work as long as he was there, but he soon left in the truck he was driving.

Defendants contend that the difficulty of May 5, 1950 had no connection with the killing, but that Livingston had been paying attention to Lovelady's wife, and that the killing took place when Lovelady ordered deceased to stay away from his wife and his property, and after deceased tried to pull a pistol.In support of this theory defendants offered Earl Nutt, foreman for Henry & Hall, an eyewitness to the shooting Douglas Bush, an oil field worker, and H. E. Lovelady, Livingston's slayer.

Before going into the testimony given by these witnesses, it is well to note that Lovelady had been tried in criminal court for the murder of Livingston, and the testimony had been taken down and transcribed.The judge in this civil case did not preside at the trial of the criminal case.Lovelady was acquitted.

Nutt, Bush and Lovelady testified on the trial of the criminal case.Nutt did not want to tell about the killing, saying he had already testified in the criminal case, but the judge ordered him to testify and he did.He did not undertake to give the conversation between Lovelady and Livingston when Lovelady called Livingston to the truck, as he said, to talk to him, but said that the conversation concerned some family affairs, 'the way I understood it.'He is certain that Livingston had no gun.He had heard of the trouble of May 5, 1950, but was not out there when it happened.

Bush testified that on several occasions he had carried Livingston to Lovelady's home and let him out of the car and driven on to his own home.He says that Livingston told him he was going to see Lovelady's wife, and that he asked what he would do if Lovelady caught him there, and that he replied: 'He wouldn't ever live to tell it.'

Lovelady testified that he called Livingston to his truck to talk to him, and told him to leave his (Lovelady's) wife alone, and to stay away from his place.He said that he had noticed the attentions of Livingston to her, and that he would put his arm around her and kiss her, and that he practically lived with her sister while her husband was in the army; that on Thursday night before the killing, his wife had told him that Livingston wanted her to go away with him, and that he would take care of him (Lovelady).He said that he told Livingston if he would stay away from his place he would let him go, and not kill him, but that Livingston then tried to pull a gun out of his shirt and that he shot him in self-defense.He said he carried the gun in the truck all of the time.He never told anyone about deceased having a gun until trial of the criminal case.

He said also that at the time, he was on the way to his father-in-law's home, where his wife had gone Friday morning, intending to try to get her to come back home, and that he had not expected to find Livingston out on the road because it was Sunday and he was not supposed to work on Sunday.

The record discloses that defendant was given the right to take the deposition of Cecil Lovelady who was in the truck with his brother when the shooting took place, but it is not in the record.The failure of Mrs. H. E. Lovelady, summoned by defendants, to appear is explained.Failure of Doug Carter, summoned by both plaintiff and defendants, to appear as a witness, is explained.

The district judge found, among others, the following facts:

'There is quite a bit of evidence in the record concerning an occurrence that happened on the Many-Pendleton Highway near the Lovelady residence on May 5, 1950, the plaintiff attempting to show a casual (sic) connection between this happening and the homicide of May 21, 1950.In our opinion there is no connection whatever between the two events.

'There is some testimony to the effect that at the time Lovelady shot deceased that Livingston was armed and that an attempt was made by Livingston to pull a gun which was concealed under his clothing.This we do not believe.

'It is our opinion, and we believe we are fully justified in our conclusion from the testimony, that Lovelady shot and killed Livingston for one and only one reason, and that was because of the relationship which Lovelady believed existed between...