Crow v. Rambin

569 So. 2d 246, 1990 WL 166859
CourtLouisiana Court of Appeal
DecidedOctober 31, 1990
Docket21830-CA
StatusPublished
Cited by3 cases

This text of 569 So. 2d 246 (Crow v. Rambin) 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
Crow v. Rambin, 569 So. 2d 246, 1990 WL 166859 (La. Ct. App. 1990).

Opinion

569 So.2d 246 (1990)

William CROW, Plaintiff-Appellee,
v.
Vanessa RAMBIN, Martin Rambin, and Jerald Rambin, Defendants-Appellants.

No. 21830-CA.

Court of Appeal of Louisiana, Second Circuit.

October 31, 1990.

*247 Daryl Gold, Shreveport, for appellant.

Nelson W. Cameron, Shreveport, for appellee.

Before MARVIN, C.J., and FRED W. JONES Jr. and SEXTON, JJ.

MARVIN, Chief Judge.

In this action arising out of a battery, defendants appeal a judgment awarding $112,000 in personal injury damages, contending that the trial court should not have admitted hearsay testimony over their objection, that only one of the three defendants injured plaintiff, that plaintiff may not recover medical expenses paid by his girlfriend, and that the general damage award is an abuse of the trial court's discretion.

We amend to reduce the general damage award from $100,000 to $62,000 and affirm as amended.

FACTS

We summarize the trial court's findings of fact which are supported by the record and are not clearly wrong:

The attack on plaintiff occurred after dark during squirrel hunting season in October 1986 at a DeSoto Parish hunting camp. The campsite was owned by the family of the three defendants, Vanessa, Martin and Jerald Rambin, who are a sister and brothers. All litigants, including plaintiff "Buddy" Crow, are adults. About 15 others, including some children, had tents at the hunting campsite which was illuminated by lanterns and a central campfire.

Several weeks before the incident at the campsite, Crow had intervened in some manner to stop a fight between Martin Rambin and Martin's cousin, whom Martin was attempting to strike with a hoe at a place called the "pig pen." Several campers at the Rambin campsite apparently knew of the earlier incident at the pig pen. When Vanessa Rambin joined in the attack on Crow at the campsite she exclaimed, "Nobody hits my brother [Martin] and gets away with it." Another witness at the campsite heard either or both Jerald and Martin say that they would like "to beat the hell out of [Buddy Crow]."

On the day Crow was attacked he had hunted with friends, Billy Kellogg and Kellogg's son-in-law, Terry McMillon, using *248 McMillon's truck. When Crow and McMillon completed their late afternoon hunt they returned to Kellogg's home on Rambin Road. McMillon and Kellogg's 15-year-old son drove away before Crow did. Kellogg and Crow, in Kellogg's truck, attempted to follow and catch them, either to get Kellogg's son or Crow's hunting gear from McMillon's truck. The Rambin campsite was ¼ mile away.

Kellogg stopped at the campsite, hoping to locate McMillon's truck. Crow exited the truck to talk to a sometimes hunting companion, Gill, who was standing at the campfire. While Crow was conversing with Gill, Martin Rambin approached and struck Crow with his fist. Crow retreated and walked behind Kellogg's truck which was parked in the road near the camp entrance. The three defendants came after Crow, one or the other saying such things as "he ain't gonna fight," "let's kill him," "he ain't gonna hurt nobody" and "cut his guts out." Others came from the campsite, following the defendants toward Crow.

Crow, understandably alarmed, grabbed Kellogg's shotgun from the truck and fired into the air in an effort to forestall the attack and distance himself from the defendants. In moving away from the truck, Crow tripped and fell, at which time defendant Jerald Rambin and Cornelius Rambin [not a defendant] grabbed the shotgun which was eventually taken and held by Cornelius Rambin. Vanessa Rambin began stomping Crow about his right leg and knee and attempting to kick Crow in his testicles.

The attack on Crow ended when Kellogg and another intervened and forcibly restrained Vanessa. Kellogg and Crow then departed in Kellogg's truck. Kellogg's son later went to the Rambin campsite to retrieve Kellogg's shotgun, commenting to Martin Rambin while there that Martin was "wrong" to "jump on" Crow. Martin replied that Crow had been wrong to jump on him at the pig pen.

Recognizing conflicts in testimony, the trial court concluded that Crow did not "fight" with defendants who were demonstrably hostile toward him, and that the three defendants jointly attacked and injured Crow, who tried to retreat and avoid being injured.

HEARSAY OBJECTION

When Crow was asked what he did after Martin first hit him at the hunting camp, he said:

I asked him what was this all about, and he said "you know what you have done" and I said "I don't know, fellow, what you are talking about," and his brother starts hitting me, Jerald, and I said "the only thing I ever done to you was to break up a fight and keeping you from hitting your cousin with a hoe," because the boy had been messing around with a couple of other fellows' wives trying to make a pass at them.

Defendants objected to this testimony as inadmissible hearsay or opinion evidence. The trial court overruled the objection after Crow explained that the earlier incident "is what ... led up to why they assaulted me."

Defendants contend that Crow should not have been allowed to give "his opinion that the defendant, Jerald Lafitte, (sic) had been messing around with other fellows' wives trying to make a pass at them" (our emphasis) because this was inadmissible hearsay or opinion evidence from a lay witness and "highly prejudicial."

Gerald Lafitte was a friend of the Rambins and was present at the hunting camp but is not one of the defendants. Jerald Rambin is a defendant but it was Martin, not Jerald, who was stopped from hitting his cousin by Crow at the "pig pen." Apparently it was not Martin, but his cousin (unnamed in the record) who was alleged to have been "messing around."

Crow's testimony was not hearsay as defined in CE Art. 801 because it was not offered to prove the truth of the matter asserted, that is, that Martin's cousin had been "fooling around," but to explain the basis for defendants' demonstrated hostility toward Crow at the campsite.

CE Art. 701 allows a lay witness to express an opinion only if it is rationally *249 based on his perception and is helpful to a clear understanding of his testimony or the determination of a fact in issue. Defendants contend Crow's testimony did not satisfy these requirements and that, if it was otherwise admissible, it should have been excluded under CE Art. 403 because its probative value was substantially outweighed by its prejudicial effect.

To the extent that Crow's testimony can be construed as his "opinion" of the reason for the attack on him, it satisfies both requirements of Art. 701. Any prejudice arising from its admission was minimal since the person who had allegedly been "fooling around" was not one of the defendants.

SOLIDARY LIABILITY

Defendants Jerald and Martin Rambin contend they should not have been cast in solido with Vanessa because Crow's only injury was his knee injury and Jerald and Martin "were not assisting" when Vanessa kicked or stomped Crow's knee.

At the time of the 1986 battery, CC Art. 2324 provided in part:

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.

Art. 2324 was amended in 1987 and now provides in part:

He who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act.

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Cite This Page — Counsel Stack

Bluebook (online)
569 So. 2d 246, 1990 WL 166859, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crow-v-rambin-lactapp-1990.