Barnes v. Wilhite

434 So. 2d 638, 1983 La. App. LEXIS 8971
CourtLouisiana Court of Appeal
DecidedJune 29, 1983
DocketNo. 83-131
StatusPublished
Cited by4 cases

This text of 434 So. 2d 638 (Barnes v. Wilhite) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barnes v. Wilhite, 434 So. 2d 638, 1983 La. App. LEXIS 8971 (La. Ct. App. 1983).

Opinion

STOKER, Judge.

Ernest Barnes and Charles McFarlin, individually and as natural tutors for their minor sons, brought suit against William Wilhite seeking damages for assault, battery and false imprisonment. Gregory Barnes and Kenneth McFarlin, the sons of Ernest and Charles, attained majority before trial of this matter and were entered as plaintiffs in their own right.

After trial by jury, judgment was rendered in favor of Gregory Barnes and Kenneth McFarlin in the amount of $10,000 each and in favor of Charles McFarlin in the amount of $500. The claim of Ernest Barnes was dismissed and the judgment against him has not been appealed.

Defendant appeals, seeking reversal of the trial court’s judgment, and plaintiffs answer the appeal seeking damages for the filing of a frivolous appeal by defendant. For reasons set out below, we amend the award of damages and otherwise affirm the judgment of the trial court.

FACTS

The incident which gave rise to this litigation began just after midnight in the early morning hours of May 13, 1979. Mr. Wilhite owns a business located on Highway 27 approximately two miles south of Interstate 10 called “Wilhite’s Marine.” For several years preceding this incident, he has had problems with vandalism. In particular, the plate glass windows of his business have been shot out on more than one occasion. Mr. Wilhite stated that such a shooting had occurred during the early morning hours of May 12, 1979.

Around eight o’clock on the Saturday evening of May 12, Mr. Wilhite began patrolling the highway which runs past his business. He had his handgun, a .357 Colt Python with a four-inch barrel, in the truck with him and was drinking beer. Mr. Wil-hite was apparently trying to catch the vandals or prevent them from doing more damage.

Plaintiffs Greg Barnes and Kenneth McFarlin, ages seventeen and sixteen respectively at that time, had been out together that evening in Mr. McFarlin’s car since around seven o’clock. They also had consumed some beer, despite their ages. The boys had been socializing with other teenagers at various gathering places in downtown Sulphur.

Just after midnight, Mr. Wilhite was proceeding south on Highway 27 at about 35 miles per hour. Approximately one-half mile south of Interstate 10, and one and one-half miles north of his business, a ear passed him. Mr. Wilhite testified that he thought he heard a shot as the car passed. He speeded up to catch the car, purportedly for the purpose of writing down the license number.

Greg Barnes and Kenneth McFarlin were the occupants of the car with Kenneth driving. They agree that they passed Mr. Wil-hite while on their way home as he testified; however, they deny that any shot was fired. Mr. Wilhite’s and the boys’ versions of the incident after this point are substantially different.

[640]*640Mr. Wilhite claims that he had to speed up to 95 miles per hour in order to catch the car that passed him. As he was trying to write down the license number, the driver put on the brakes, forcing him to brake also. He states that the car then began swerving from side to side and eventually pulled into the parking lot of his business on the left side of the road. When Mr. Wilhite stopped behind the car, it pulled out and stopped again on the right shoulder of the road a short distance past his business. He followed the car, stopping behind it, and began writing down the license number.

Mr. Wilhite states that at that point he saw two people get out of the car and begin approaching him. He stepped out of the truck, reached under the seat to get his gun, and fired a shot in the air and informed the boys that he was making a citizen’s arrest. He then forced the boys to walk back to his place of business and call the police. Mr. Wilhite kept the gun in his possession during this time. Upon the boys’ request, he allowed them to call their parents.

Both Greg and Kenneth told substantially the same story. They passed a truck at a speed of about 45 miles per hour and maintained that speed. The truck caught up with them and pulled onto the right hand shoulder of the road about even with their back bumper. Thinking it must be someone they knew, the boys pulled onto the right shoulder of the road just past Wilhite’s Marine, got out of the car, and began walking towards the truck. Mr. Wilhite got out of his truck, pointed his gun at them and had them “spread eagle” on the trunk of the car. Both boys stated that Mr. Wilhite fired his gun into the ditch within a few feet of them to prove it was loaded.

Mr. Wilhite, while still brandishing the gun, forced them to walk to Wilhite’s Marine. Just before entering the store, he pressed the gun barrel against each one’s head in turn, forcing them to look at bullet holes in his plate glass. Once in the store, Mr. Wilhite told them to call the police and their parents.

Mr. Charles McFarlin arrived first, along with Kenneth’s older brother, Rayford. He testified that Mr. Wilhite appeared to be drunk and was waving the gun around. He feared that they could all be shot. Mr. McFarlin eventually persuaded Mr. Wilhite to put the gun down. Mr. Barnes then arrived followed a short time later by deputies from the Calcasieu Parish sheriff’s department.

After talking with the boys and Mr. Wil-hite, the deputies searched the car which had been occupied by Greg and Kenneth. No weapon was found, and Mr. Wilhite was taken into custody.

Mr. Wilhite was initially represented by counsel who withdrew from representation on October 22, 1982, before the trial which began on November 8, 1982, because Mr. Wilhite could not agree on payment.

Mr. Wilhite, who represented himself at trial and on this appeal, raises the following issues for resolution by this Court:

1. “Should the trial court be granted a continuance because of the failure of witnesses which had been timely subpoenaed to appear?
2. “Should the trial court allow judgment to be entered in favor of plaintiffs who were not present and available for confrontation by the defend- ■ ant on the date of trial?
3. “Should the trial court have allowed the defendant to present evidence establishing that he was in reasonable fear for his own safety?
4. “Should the trial court have instructed the jury concerning any finding that it could or did make as to defendant’s reasonable fear for his own safety?
5. “Was the verdict of the jury contrary to the law and evidence?
6. “Was the amount of the verdict excessive?”

Each of these issues is fully addressed below.

[641]*641I.

Mr. Wilhite contends that he should have been granted a continuance in accordance with the provisions of LSA-C.C.P. art. 1602 which states:

“A continuance shall be granted if at the time a case is to be tried, the party applying for the continuance shows that he has been unable, with the exercise of due diligence, to obtain evidence material to his case; or that a material witness has absented himself without the contrivance of the party applying for the continuance.”

Upon making his motion for a continuance on the morning of trial, Mr. Wil-hite stated that he had issued subpoenas for Greg and Ernest Barnes, plaintiffs, and Rayford McParlin, Kenneth’s brother.

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Related

Thibodeaux v. Burton
525 So. 2d 1103 (Louisiana Court of Appeal, 1988)
Barnes v. Wilhite
440 So. 2d 148 (Supreme Court of Louisiana, 1983)
Louisiana Joint Underwriters of Audubon Ins. Co. v. Gant
439 So. 2d 1153 (Louisiana Court of Appeal, 1983)

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Bluebook (online)
434 So. 2d 638, 1983 La. App. LEXIS 8971, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barnes-v-wilhite-lactapp-1983.