Tabb v. Norred

• Court: Court of Appeal of Louisiana
• Writing for the Court: HOOD
• Citation: Tabb v. Norred, 277 So.2d 223 (La. App. 1973)
• Decision Date: 25 April 1973
• Docket Number: No. 4096,4096
• Parties: Wilbert TABB, Plaintiff-Appellee, v. James Christopher NORRED et al., Defendants-Appellants.

Page 223

277 So.2d 223

Wilbert TABB, Plaintiff-Appellee, v. James Christopher NORRED et al., Defendants-Appellants.

No. 4096.

Court of Appeal of Louisiana, Third Circuit.

April 25, 1973.

Rehearing Denied May 24, 1973.

Writ Refused June 29, 1973.

McBride & Brewster by Norman Foret and Piccione, Piccione & Wooten by Peter C. Piccione, Lafayette, for defendants-appellants.

Louis M. Corne and J. Minos Simon, Lafayette, for plaintiff-appellee.

Before SAVOY, HOOD and CULPEPPER, JJ.

HOOD, Judge.

Wilbert Tabb instituted this suit for damages for personal injuries sustained by him when he received a bullet would from a pistol fired by James Christopher Norred, Jr., a minor. Plaintiff alleges that the shooting occurred pursuant to a conspiracy between Norred and Nicholas Lee Vincent, also a minor. The suit was instituted against young Norred, his father and American Security Insurance Company, liability insurer of the Norreds. Also named as defendants are Nicholas Lee Vincent, his father, Louis D. Vincent, and State Farm Fire and Casualty Company, the liability insurer of the Vincents.

Plaintiff entered into a compromise settlement with the Norreds and American Security Insurance Company prior to the trial, and the suit was dismissed with prejudice as to those defendants, reserving to plaintiff all of his rights against the remaining defendants.

The case was tried by jury, with the result that a general verdict was rendered in favor of plaintiff for $300,000.00. A judgment was then rendered and signed by the trial judge in favor of plaintiff, and against State Farm Fire and Casualty Company, Louis D. Vincent and Nicholas Lee Vincent, condemning defendants 'jointly, severally and in solido' to pay to plaintiff the amount specified in the verdict, with the provision that 'as to Nicholas Lee Vincent the principal amount of said judgment hereby is reduced to one-half thereof as the result of his right of contribution from his co-tort-feasor, James Christopher Norred, Jr.'

Defendants, Nicholas Lee Vincent, Louis D. Vincent and State Farm, have appealed. Plaintiff answered the appeal praying that the amount of the award be increased.

A number of issues are presented. The one we will consider first is whether the facts presented here constitute sufficient grounds for plaintiff to recover damages from the Vincents under the provisions of Article 2324 of the Louisiana Civil Code.

The shooting occurred at about 1:00 A.M. on November 6, 1970. Plaintiff was a deputy sheriff in Lafayette Parish, and he was on duty at that time. Shortly before the shooting took place he received a telephone call from someone who lived near the Broadmoor Elementary School, in Lafayette, advising that the caller had heard glass breaking and had seen lights turned on and off in the school. Immediately after receiving that call plaintiff and two other deputies went to the school to investigate.

Upon their arrival at the school building, the officers apprehended and took into their custody a young man named Darrell Patterson, who was wandering on the school grounds outside the building. They discovered that an outside window of the structure had been broken, and they thereupon announced twice in voices loud enough to be heard by persons in the school that they were police officers, that the building was surrounded, and that anyone in the building was ordered to come out. Shortly thereafter the officers saw young Vincent inside the unlighted building near the broken window. Plaintiff and another officer managed to slip up on and grab Vincent through the window and to drag him out of the building, where a struggle ensued. During the course of the struggle a 22 caliber pistol which Vincent had in his hand was fired, but no one was struck by the bullet, and Vincent eventually was subdued. Vincent was then disarmed, and he was taken into custody and held by the deputies. The deputies asked Vincent if anyone else was in the building, but Vincent refused to answer.

While Vincent was being held just outside the building, near the broken window, plaintiff Tabb climbed through that window into the unlighted building, and he began to search the first room he entered with the use of a flashlight. He did not know that anyone else was in the building. Young Norred was in that room, armed with a 38 caliber pistol, and before he was discovered by plaintiff or anyone else, he fired a shot at Tabb, striking him in the chest just above the heart, causing plaintiff to fall backward to the floor paralyzed . Norred then moved to a spot near the place where plaintiff was lying helpless on his back, and he fired another shot aimed at about the middle of plaintiff's stomach. The bullet went through Tabb's left hand, breaking three bones in that hand, and then it struck a large belt buckle which Tabb was wearing. The belt buckle stopped the bullet and prevented it from entering other parts of Tabb's body. After firing that second shot, Norred ran out of the building, but he was apprehended a few hours later in a nearby wooded area.

Young Norred and Vincent, and six other young men, including Darrell Patterson, had gone camping on the evening of November 5, a few hours before this shooting incident occurred. They took with them a relatively large supply of wine and beer, and Vincent concedes that some of it was consumed by him and by Norred. He stated that some of their companions got drunk. Vincent and Norred each had a pistol, and at about midnight they left the camp and shortly thereafter they 'decided to go hit the school.' They were riffling through the principal's desk when the officers arrived at the school building to investigate the disturbance which had been reported to them. Vincent stated that he had the loaded pistol in his hand during the entire time they were in the building.

The evidence shows that Vincent did not call out to or communicate with Norred in any way after Vincent was apprehended. He could have done so if he had desired, because he and Norred apparently where in the same room when Vincent was first caught by the officers, and Vincent remained just outside the broken window of that room, a very short distance from Norred, for a period of time after he was subdued.

The jury found that young Vincent was liable as a joint tortfeasor . The trial judge apparently agreed with the jury on the issue of liability, because he denied defendants' motion for a new trial and signed a decree substantially in accordance with the jury verdict.

Defendants contend that any liability on the part of young Vincent could arise Only under Article 2324 of the Louisiana Civil Code, which provides:

'He who Causes another person to do an unlawful act, or Assists or Encourages in the commission of it, is answerable, in solido, with that person, for the damage caused by such act.' (Emphasis added). The argue that the Vincent boy is not liable because he did not fire the shot which struck plaintiff, he did not assist in the shooting, and he did not encourage Norred to shoot Tabb. Defendants point out that Vincent had been disarmed, and that he was outside the building and was in the custody of officers when plaintiff entered the school before he was shot. They take the position that Vincent thus did not Cause Norred to fire the shot, and he did not Assist or Encourage in the commission of the act which caused plaintiff's injuries. They argue that under those circumstances Vincent is not liable under LSA-C.C. art. 2324.

We agree that Vincent did not Cause Norred to fire the shot which injured plaintiff. We have concluded, however, that he did assist or encourage in the commission of the shooting, and that he thus is liable under Article 2324 of the Civil Code.

The evidence establishes that Vincent and Norred entered into a conspiracy to commit an unlawful act, the burglary of the school building. Both were armed with loaded pistols as they broke into the school and Vincent admits that he kept a loaded pistol in his hand during the entire time he was in the building. When their presence in the school was detected and the police officers attempted to apprehend them, both Vincent and Norred resisted arrest, and in doing so each fired the gun he carried. Norred deliberately fired his pistol at plaintiff twice, with the obvious purpose of seriously injuring or killing him. We find that he shot plaintiff to avoid being apprehended. Vincent testified that his gun was fired accidently while he was tussling with the police officers. The evidence shows, however, that he resisted arrest, and that the loaded gun was in his hand when it was fired during his scuffle with the officers. The firing of the gun thus was caused by his attempt to resist arrest.

We believe that Vincent, by entering into a conspiracy with Norred to commit burglary while armed with loaded pistols, and then joining him in the execution of that conspiracy, actively assisted and encouraged in the commission of any acts which were incidental to the commission of that offense. Both of these young men were aware of the fact they they migh be caught, and both of them obviously intended to use their guns in resisting arrest if they were detected, because otherwise there would have been no reason for them to have carried loaded guns in their hands while they were in the building. They, in fact, did use their guns in resisting arrest. The shooting, therefore, was something which Vincent reasonably should have anticipated might taken place when he entered into and joined in the execution of the conspiracy.

Defendants contend, and we agree, that a conspiracy does not of itself give rise to a cause or right of action for damages. It does so only insofar as it causes injury. If no actual damage results from something done by one of more of the conspirators in furtherance of the object of the conspiracy, no civil action lies against anyone. If a conspiracy is conceived and executed, however, and a private...