Tripoli v. Gurry, 49135

• Citation: 218 So.2d 563,253 La. 473
• Decision Date: 20 January 1969
• Docket Number: No. 49135,49135
• Parties: Frank J. TRIPOLI v. Jack GURRY and Lula Mae Bankston, divorced wife of Edward Phillip Gurry.
• Court: Louisiana Supreme Court

Page 563

218 So.2d 563

253 La. 473

Frank J. TRIPOLI v. Jack GURRY and Lula Mae Bankston, divorced wife of Edward Phillip Gurry.

No. 49135.

Supreme Court of Louisiana.

Jan. 20, 1969.

Rehearing Denied Feb. 24, 1969.

Robert E. Leake, Jr., of Hammett, Leake & Hammett, New Orleans, for defendants-applicants.

William M. Lucas, Jr., and Michael Osborne, of Dufour, Levy, Marx & Lucas, New Orleans, for plaintiff-respondent.

Timothy G. Schafer, of Adams & Reese, New Orleans, for intervenor-respondent.

HAMITER, Justice.

This assault and battery damage suit arose out of an altercation between Frank J. Tripoli, the plaintiff herein, and Jack Gurry, a defendant and a minor, in which the former received certain hereinafter described physical injuries.

Gurry's mother and her liability insurer, Lumbermens Mutual Casualty Company, were also named as defendants.

The Aetna Casualty and Surety Company, the workmen's compensation insurer of plaintiff's employer, intervened to recover payments made by it to plaintiff during his disability.

The trial court rendered a judgment in favor of plaintiff in the sum of $1500. It dismissed the intervenor's claim. All parties appealed.

The Court of Appeal increased the award to plaintiff to $10.000. The judgment dismissing the intervention of Aetna was reversed and its claim against the amount awarded plaintiff (for compensation payments made by it) was recognized. Tripoli v. Gurry, La.App., 206 So.2d 163.

At the instance of the defendants we granted certiorari (251 La. 1077, 208 So.2d 535). But we denied plaintiff's application seeking an increase in his award (251 La. 1071, 208 So.2d 533).

It is correctly stated in Alexander v. McCray (La.App.), 190 So.2d 463 that 'the law is well settled in actions for damages for battery that a plaintiff cannot recover damages for such battery if the evidence establishes that he is at fault in provoking the difficulty in which the injury complained of is received. See Oubre v. Judice (et al.) (La.App., 1962) 147 So.2d 745, and the cases therein cited.' Also pertinent are Stothart v. Louisiana-Arkansas Railway Company, 127 La. 409, 53 So. 668 and Johnson v. Princeville Canning Company et al. (La.App.), 205 So.2d 449.

It is equally well settled that even where there is an aggressive act, justifying a battery, the person retaliating may use only to much force as is necessary to repel the aggression; and that if he goes beyond this, he using force in excess of what would have been reasonably necessary, he is liable for damages for injury caused by the employment of such unnecessary force. Oakes v. H. Weil Baking Company et al., 174 La. 770, 141 So. 456, Whittington v. Levy (La.App.), 184 So.2d 577, Bauman v. Heausler (La.App.), 188 So.2d 189 and Mut v. Roy et al. (La.App.), 185 So.2d 639.

Of course, each case depends on its own peculiar facts and circumstances; and resort must be had to the evidence to determine who was the aggressor and whether more force than necessary was used to repel the aggression.

The trial court made the following findings of fact which are pertinent to a decision herein.

During the evening of April 26, 1964, near eight o'clock, Jack Gurry (then seventeen years of age) and a companion, Marcel Bourcq, entered the Katz and Besthoff Drug Store located on Canal Boulevard, at the corner of Rosedale Drive, in New Orleans. The drug store is set back from the sidewalk, and in front and to the side is a rather large parking area which is shared by it and a Winn Dixie Food Store.

When the youths entered the drug store several other boys (acquaintances of theirs) were seated at the fountain or lunch counter. Gurry and Bourcq joined them, and shortly thereafter loud and offensive conversion by the boys ensued. This was reported to the plaintiff who was then the assistant manager of, and the only male employee in, the store. He spoke to the young men requesting that they quiet down; but when Gurry continued in the above mentioned course of conduct plaintiff requested him to leave. This he refused to do until he was served the order he had placed. Whereupon, plaintiff instructed one of the other employees to call the policemen, their station being only about two blocks away.

At that time Gurry left the establishment, and he was followed by plaintiff (he stopped momentarily to obtain a paper and pencil to note Gurry's automobile license plate). Gurry told plaintiff that he did not have a car, which was apparently true because he had reached the store by bus.

Gurry continued to walk away, on the parking lot and toward the bus stop (located on the corner of Canal and Rosedale and across the street from the lot), it being his intention (according to his testimony) to catch the bus and go home. However, plaintiff continued to follow him, seeking to keep him from leaving the area until the police arrived.

When Gurry was some distance from the store (almost to the sidewalk) plaintiff attempted to restrain him by (at least) placing his hands upon the youth. At that time Gurry either stepped back or pushed him in an effort to get away. This resulted in plaintiff's falling to the ground and fracturing his leg. The injury consisted of a fracture of the distal tibia and fibula (just above the ankle).

Thereafter, while plaintiff was on the ground, Gurry punched him, striking at least one blow with his fist. But whatever...