Campbell v. Mouton

412 So. 2d 191
CourtLouisiana Court of Appeal
DecidedMarch 10, 1982
Docket8696
StatusPublished
Cited by25 cases

This text of 412 So. 2d 191 (Campbell v. Mouton) 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
Campbell v. Mouton, 412 So. 2d 191 (La. Ct. App. 1982).

Opinion

412 So.2d 191 (1982)

Dudley Joseph CAMPBELL, Plaintiff-Appellee,
v.
Edmond MOUTON and Pete Reaux, Defendants-Appellants.

No. 8696.

Court of Appeal of Louisiana, Third Circuit.

March 10, 1982.
Rehearing Denied April 29, 1982.
Writ Denied June 11, 1982.

*192 J. Barry Mouton, Lafayette, for defendants-appellants.

D. Warren Ashy, Lafayette, for plaintiff-appellee.

Before CULPEPPER, GUIDRY and STOKER, JJ.

*193 STOKER, Judge.

This is a suit for personal injuries sustained by the plaintiff allegedly as a result of a barroom brawl. The case was originally dismissed by the trial court when it granted defendants' motion for a directed verdict. This court reversed that dismissal and remanded the case for a new trial. Campbell v. Mouton, 373 So.2d 237 (La.App. 3rd Cir. 1979). A jury trial was held on remand in which the jury rendered a verdict against the defendants, Edmond Mouton and Pete Reaux, in solido, for $125,000. The trial court denied defendants' motion for new trial and remittitur and assigned written reasons for the denial. Defendants appeal the judgment of the trial court, alleging as error that (1) the jury verdict is contrary to the evidence and the law; and that (2) the award is excessive and not supported by damages proven by a preponderance of the evidence at trial.

The facts brought out in this trial are essentially the same as those elicited in the first trial of this matter which are related in our earlier decision. Plaintiff Dudley Campbell was a patron of Star Mist Lounge, owned by defendant Edmond Mouton, on February 26, 1977, in Abbeville, Louisiana. On that evening plaintiff sustained injuries in a fight with defendant Pete Reaux who was tending bar at the lounge at the time. Plaintiff contends that Pete Reaux inflicted his injuries with a knife, but defendant tried to show that it was more likely that plaintiff's injuries were caused by his falling against some wrought iron grillwork in the lounge during the scuffle.

LIABILITY OF PETE REAUX

Three witnesses to the incident, Barbara Plummer, Dudley Guidry, and Riley Trahan, testified for the plaintiff that they saw a knife in Pete Reaux's hand during the fight. One witness, Barbara Plummer, said she saw Reaux stab plaintiff in his armpit. Plaintiff claims to have seen the knife in Reaux's hand only after the fight. Donald Miller, one of the police officers who arrived on the scene after the fight, testified that Reaux gave him a knife on that occasion with what appeared to him to be blood on the blade.

Pete Reaux, the defendant involved in the fight, claims that he did not pull his knife out of his pocket until after the fight was over, and that he did so only to protect himself from further attack. Furthermore, Reaux was the only witness who claims that the plaintiff fell against the wrought iron grillwork. None of the other witnesses to the fight, including two who testified for the defendants, saw Reaux or the plaintiff fall against the grillwork. Thus, the only substantial evidence that plaintiff was injured by any means other than by Reaux's stabbing him with a knife is the testimony of Reaux himself. The jury was justified in its conclusion that plaintiff's injuries resulted from Reaux's tortious conduct.

Defendants further contend that plaintiff cannot recover for his injuries because he was the aggressor. There was ample evidence produced at trial from which the jury could conclude that Reaux, and not the plaintiff, was the aggressor. However, even assuming that plaintiff was the aggressor, Reaux was not privileged to respond with unnecessary force. Even where there is an aggressive act justifying a battery, the person retaliating may use only so much force as is necessary to repel the aggression, and he is liable for damages for injury caused by his use of force in excess of what was reasonably necessary. Tripoli v. Gurry, 253 La. 473, 218 So.2d 563 (La.1969) and Curry v. Bagwell, 379 So.2d 1163 (La.App. 2nd Cir. 1980), writ denied, 383 So.2d 782. Resort to the use of a dangerous weapon in order to repel an attack on one's person is not justifiable except in exceptional cases in which the actor's fear of danger is not only genuine, but is founded on facts which would likely produce similar emotions in men of reasonable prudence. Curry v. Bagwell, supra, and Davis v. Marie, 339 So.2d 370 (La.App. 1st Cir. 1976), writ refused, 341 So.2d 5 (La.1977). There was no evidence in the instant case that Reaux was in genuine fear for his health or life from plaintiff's actions to justify his use of a knife against plaintiff.

*194 For the foregoing reasons, we find no manifest error in the trial court's finding of defendant Reaux's liability.

LIABILITY OF EDMOND MOUTON

Defendants contend that, even if defendant Pete Reaux is liable for damages to plaintiff, that defendant Edmond Mouton, Reaux's employer, should not be liable for the actions of his employee. Defendants cite the last paragraph of LSA-C.C. art. 2320[1] which makes masters or employers responsible for damages occasioned by their servants and overseers only when the masters or employers "might have prevented the act which caused the damage, and have not done it." Defendants contend that Mouton could not have prevented the act which caused the damage to plaintiff and therefore should not be responsible for the damage his employee caused.

This argument ignores the fact that the extent of liability of employers for their employees has been expanded jurisprudentially beyond the limits of Article 2320. In Louisiana, an employer (master) is liable for torts committed by his employee (servant) if, at the time, the servant is acting within the scope of his employment-acting as Civil Code article 2320 phrases it, "in the exercise of the function in which ... employed." LSA-C.C. art. 2320; LeBrane v. Lewis, 292 So.2d 216 (La.1974); Blanchard v. Ogima, 253 La. 34, 215 So.2d 902 (La.1968); Comment, 33 La.L.Rev. 110 (1972).

Defendants further contend that Reaux was not acting within the scope of his employment when he fought with and stabbed plaintiff, but that Reaux's motives at the time were strictly personal. Defendants cite the following language from LeBrane v. Lewis, supra, as quoted in Mays v. Pico Finance, 339 So.2d 382 (La.App. 2nd Cir. 1976), writ denied, 341 So.2d 1123 (La. 1977):

"The determinative question is whether the tortious conduct of the employee `was so closely connected in time, place, and causation to his employment-duties, as to be regarded a risk of harm fairly attributable to the employer's business, as compared with conduct motivated by purely personal considerations entirely extraneous to the employer's interests.'"

In LeBrane v. Lewis, the court applied this test and found that an employer was liable for the act of its supervisor in stabbing a discharged employee who was still on the premises, because the fight was reasonably incidental to the performance of the supervisor's duties in connection with firing the employee and causing him to leave the place of employment. Also, the fight occurred on the employment premises and during the hours of employment.

The fight between Reaux and plaintiff in the instant case also occurred on the employment premises during the hours of employment. Furthermore, the fight was reasonably incidental to the performance of Reaux's duties as bartender.

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412 So. 2d 191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/campbell-v-mouton-lactapp-1982.