Martinez v. Dixie Brewing Co., Inc.
| Decision Date | 10 December 1984 |
| Docket Number | No. CA-2249,CA-2249 |
| Citation | 463 So.2d 628 |
| Parties | Mrs. Petrona MARTINEZ v. DIXIE BREWING COMPANY, INC., and Home Insurance Company. |
| Court | Court of Appeal of Louisiana — District of US |
William R. Seay, Jr., Metairie, for appellant.
J. Paul Demarest, New Orleans, for appellees.
Before GULOTTA, KLEES and ARMSTRONG, JJ.
In this worker's compensation suit, the defendant employer and its insurer appeal from a judgment awarding death benefits, penalties and attorney's fees to the surviving parents of an employee who died following a job-related fight with his co-worker. Because we conclude the trial judge erred in failing to find that the death was caused by the decedent's willful intention to injure his fellow worker, we reverse the judgment and disallow recovery pursuant to LSA-R.S. 23:1081(1)(a). 1
Jose A. Castro died six days after being injured in a fight at the Dixie Brewery Company warehouse with a co-employee, Earl Jackson. The circumstances of their struggle are essentially undisputed.
Wilfred Duhon, a witness to the incident, testified that Castro "started horsing around" with Jackson by slapping him on the back of his head. According to this witness, Jackson dismounted his fork lift and punched Castro on the nose, knocking him to the ground and breaking his watch. After Duhon helped him off the floor and picked up his watch, Castro then grabbed a metal bar and swung it at Jackson, striking the back of the lift. Jackson then ran away from Castro in the warehouse and Castro threw the bar at him. Jackson returned with a metal pipe approximately six feet long, and Castro grabbed a baseball bat. The two proceeded to swing at each other, and, according to Duhon, were not "joking" or "playing around" but "meant to hit each other". After using the pipe to deflect Castro's bat swings "like Robin Hood and Little John", Jackson struck Castro on his leg and head with the pipe before the combat ended.
A second eye witness, Brian Branniff, gave a similar account of the incident that started as a "friendly encounter or scuffle" of "slapfighting". According to Branniff, after Castro's watch was broken, Jackson left on his fork lift and did something else, while Castro mumbled, "I'm going to get that M.F." When Jackson returned, Castro grabbed a metal bar and struck the fork lift truck where Jackson was sitting with his back to him. Jackson then ran to another part of the warehouse and Castro "kind of chased him". Branniff testified that when Jackson came back armed with a pipe, Castro grabbed the baseball bat and was "not horsing around" as he attempted to hit Jackson.
In written "Reasons for Judgment", the trial court rejected the defendant's special defense of willful intent to injure as follows:
"[T]he Court concludes that after considering testimony and evidence, if Castro did indeed joust at Jackson with a baseball bat, it was an impulsive act, not with the premeditation or malice necessary to preclude recovery. The defendants' own witnesses testified that Jackson and Castro were friends who had 'played around' before and who had been 'slap fighting' together on the job....
In the instant case, testimony relating to the friendliness between Jackson and Castro, the 'playing' and 'slap fighting', etc., suggests that there was neither existent premeditation nor malice on the part of the claimant and that his actions were impulsive.
While the Court is aware of some jurisprudence which precluded recovery both claimant and co-employee armed themselves, it was not the 'arming' which necessitated the preclusion, but the intention of the claimant to injure another which was important. (The 'armings' being but a symptomatic manifestation of intent.) Here, no such intent existed."
Appealing, defendants contend that the trial judge manifestly erred in failing to conclude that the accident resulted from Castro's willful intent to injure Jackson. Plaintiff argues, on the other hand, that the trial judge's conclusions are supported by the evidence and, alternatively, that defendants have waived this affirmative defense by failing to plead the defense in their answers to the suit.
Before turning to the merits of defendants' contention, we reject plaintiff's evidentiary argument directed towards defendants' failure to plead affirmatively the defense of willful intent to injure. Although an affirmative defense must be specially pled, LSA-C.C.P. Art. 1154 provides that when an issue not raised by the pleadings is tried by express or implied consent of the parties, it shall be treated in all respects as if it had been raised by the pleadings.
In the instant case, although defendants did not, by answer, raise the special statutory defense of willful intent to injure, the factual witnesses, Wilfred Duhon and Brian Branniff, testified at length, without any objection by plaintiff, concerning a blow-by-blow description of the combat and both Castro and Jackson's states of mind, i.e., whether or not they were serious or joking in their struggle. Under these circumstances, we conclude that the pleadings have been enlarged by this evidence to include the special statutory defense. Edwards v. Edwards, 282 So.2d 858 (La.App. 1st Cir.1973), writ refused 284 So.2d 777 (La.1973); Sanders v. New Orleans Public Service, Inc., 422 So.2d 232 (La.App. 4th Cir.1982). 2 Accordingly, we turn now to a consideration of the evidence relating to willful intent to injure.
In the landmark case of Velotta v. Liberty Mutual Insurance Company, 241 La. 814, 132 So.2d 51 (1961), the Louisiana Supreme Court set forth a two-part test for determining the existence of this intent in the context of a fight between co-workers. According to Velotta, the relevant inquiry is whether the injured employee had some premeditation and malice coupled with a reasonable expectation of bringing about a real injury to himself or another. No...
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...for the employer is entitled to establish the aggression of the victim as a special defense. La.R.S. 23:1081; Martinez v. Dixie Brewing Co., 463 So.2d 628 (La.App. 4th Cir.1984), writ denied, 467 So.2d 537 (La.1985); Augustine v. Washington Parish Police Jury, 383 So.2d 1271, (La.App. 1st C......
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