Smith v. Parker
| Decision Date | 18 June 1952 |
| Docket Number | No. 7802,7802 |
| Citation | 59 So.2d 718 |
| Parties | SMITH v. PARKER. |
| Court | Court of Appeal of Louisiana — District of US |
Stone & Lacour, Shreveport, for appellant.
Campbell & Campbell, Minden, for appellee.
Plaintiff, Ann Lane Smith, instituted this suit under Article 2315 LSA-C.C. to recover damages for injuries alleged to have been received from the defendant, Roy Parker, as a result of an encounter between them in front of the A. & P. store in the City of Minden, Louisiana. After appeal to this court plaintiff died and her husband, Granville Smith, has been properly substituted as the sole heir and representative of the deceased plaintiff, and as such prosecutes this appeal from an unfavorable jury verdict.
The petition alleges that on the late afternoon of October 30, 1950, at about 5:00 o'clock, she was seated in front of the above store in her car which was properly in the space provided for parking; that another automobile immediately behind plaintiff's car was parked in such a position that it prevented petitioner from moving her car into the street when she was ready to depart; that a third car adjacent to petitioner's car was also blocked and the lady driver thereof was blowing her horn in an effort to gain egress from her parking space which was also blocked by defendant's wrongly parked automobile; that defendant came from his automobile and after some words, jerked petitioner out of her car, slapped her face and kicked her without provocation. Petitioner further alleged that she was not well at the time and that by reason of the excitement she became very ill and hysterical, requiring treatment by Dr. Baker for some time afterward.
The defendant by way of answer, admitted that he slapped and kicked plaintiff but contends his acts were provoked by plaintiff getting out of her car and cursing him several times. Defendant prayed for and the case was tried by a jury.
Counsel for plaintiff, before going to trial, filed a motion for judgment on the petition and answer, setting forth that defendant admitted by the answer that he slapped and kicked the plaintiff, and that the only justification pleaded was alleged insulting language by plaintiff which plea of justification raised by defendant was not a valid defense. The judge a quo overruled this motion and his ruling is made the subject of a bill of exception hereafter discussed.
The case was taken up, tried and resulted in judgment in favor of the defendant. From this judgment plaintiff appeals, urging that the trial court committed certain errors which are reflected in bills of exceptions properly reserved.
The first bill of exception is to the ruling on plaintiff's motion for judgment on the pleadings. The motion is predicated on LSA-R.S. 13:3601, (par. 4). This section of the Pleading and Practice Act contains this qualification:
'If, upon consideration of the petition and answer, as above provided, the court shall be of the opinion that the plaintiff is not entitled to judgment, it shall dismiss the rule, and the fixing and trial of the cause shall be proceeded with in the same manner and form as if such rule had not been taken.
'No appeal shall lie from such judgment dismissing such rule.'
The motion or rule, therefore, which is the basis for appellant's bill of exception number one, was one over which the trial judge had absolute discretion. From his ruling there is no appeal and this court may not consider the ruling complained of.
In the second bill of exception error is said to lie in the refusal of the trial judge to specially charge the jury as follows:
'The court instructs the jury that the defendant has admitted that he slapped and kicked the plaintiff, and that this is an admission of liability; now therefore, if you find from the evidence that plaintiff sustained an injury as a result of the acts of the defendant, then you must return a verdict in favor of the plaintiff and against the defendant, awarding damages in an amount which you shall determine.'
The court declined to give the instruction required, and, in our opinion, the ruling was proper: first, because the requested charge contains a finding of certain facts which is a jury function, and, secondly, the requested charge is not responsive to our Louisiana jurisprudence which in proper circumstances refuses plaintiff damages when he or she is the aggressor in an affray.
The court gave the following which is an excerpt from the whole charge given the jury:
'Members of the jury, this lawsuit, as you have found, is one for damages for personal injuries and the basis for this lawsuit is Article 2315 of the Revised Civil Code of this state which reads so far as it applies here as follows:
"Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it'.
'The general rule is that mere words spoken, however much they may be calculated to excite or irritate, do not justify assault and battery although they may be considered in mitigation of damages.
'There have been read to you and cited to you some exceptions to that, if the person who uttered those words should have known from the character of abuse he was heaping on his opponent a fight would result, then that wouldn't apply.
'There is one case where an employee on board a steamboat, by her own insolence, insubordination, and threats of personal violence, provoked the Captain of the boat into an assault which resulted in trifling injury to the passenger and the passenger was not entitled to recover damages.'
By statutory direction the Louisiana courts may only charge a jury on the law applicable to the case and are prohibited from saying anything about the facts, or even recapitulating them so as to exercise any influence on their decision in this respect. C.P. 516. The jury is the judge of both the law and the facts. 16 Tulane Law Review, 425.
The charge sought by appellant was not a correct and full statement of the law as applied by our courts. In the application of tort responsibility under Article 2315, LSA-C.C., which provides that one who is at fault for damage caused is under an obligation to repair it, a plaintiff, who by his or her conduct provokes a difficulty and is the aggressor, thereby forfeits the right of recovery for injuries received as a result thereof. In an effort to determine what conduct constitutes aggression and provocation sufficient to justify a battery in a number of cases it has been said:
'The use of mere words, no matter how calculated the words were to incite and irritate, do not present a defense, though they may serve in mitigation.'
See Richardson v. Zuntz, 1874, 26 La.Ann. 313; Munday v. Landry, 1899, 51 La.Ann. 303, 25 So. 66; Bernard v. Kelley, 1907, 118 La. 132, 42 So. 723; Harvey v. Hervey, 1909, 124 La. 595, 50 So. 592; Bonneval v. American Coffee Company, 1910, 127 La. 57, 53 So. 426; Burnecke v. O'Neal, 1916, 139 La. 208, 71 So. 395; Oakes v. H. Weil Baking Company, 1932, 174 La. 770, 141 So. 456; LaFleur v. Dupre, 1924, 1 La.App. 230; Guillory v. Fontenot, 1925, 2 La.App. 189; Holmes v. Warren, 1930, 12 La.App. 399, 126 So. 259; Rainey v. Miano, 1931, 17 La.App. 137, 134 So. 757.
Other decisions clarify the doctrine of 'mere words' and hold that a court or jury may properly find in favor of the defendant when the plaintiff is at fault in bringing on the conflict, although the fault may consist solely of verbal abuse. See Finkelstein v. Naihaus, La.App., 1933, 151 So. 686; Walsh v. Schriner, La.App., 1936, 168 So. 345; Landry v. Himel, La.App., 1937, 176 So. 627, 629; Gross v. Great Atlantic & Pacific Tea Company, La.App., 1946, 25 So.2d 837.
In Walsh v. Schriner, supra [La.App., 1936, 168 So. 346], defendant struck plaintiff on the head with a flashlight after plaintiff had called the wife of defendant a 'Goddam liar'. In deciding that such words were justification enough for the battery committed, the court commented:
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The court found justification for the assault in Landry v. Himel, supra, when the father slapped his daughter after she had used insulting language toward him and raised her hand and threatened him, the court saying:
'Where a plaintiff provokes a difficulty by insults, abuse, threats, or other conduct calculated to arouse resentment or fear on...
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