George v. Pigno

696 So. 2d 186, 97 La.App. 3 Cir. 127
CourtLouisiana Court of Appeal
DecidedJune 4, 1997
DocketNo. 97-127
StatusPublished
Cited by2 cases

This text of 696 So. 2d 186 (George v. Pigno) 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
George v. Pigno, 696 So. 2d 186, 97 La.App. 3 Cir. 127 (La. Ct. App. 1997).

Opinion

11 DECUIR, Judge.

This is a tort suit filed by Judy George to recover damages for the alleged killing of a pair of breeding emus by a dog belonging to defendants, Paul and Lisa Pigno. The trial court rendered judgment in favor of the defendants, and George lodged this appeal.

FACTS

This classic “whodunit” begins with Judy George’s purchase of two breeding emus in March of 1993. George, a school bus driver on disability retirement, purchased the emus as an investment using $8,500.00 of her savings. At the time of her purchase, there was a ready market for the offspring of emus. George had a cage built beside her home to house her emus and testified that the pair were exhibiting breeding behavior, though they had not actually bred at the time of their demise.

|20n the morning of September 30, 1993, George went out to the pen to see her emus. To her horror the birds were laying on the ground. Inside the locked pen was a dog with a bloody snout. Upon recovering from her shock, George called the Sheriffs Department and Animal Control. The deputies and employees of Animal Control opened the locked gate and retrieved the alleged killer dog.

An investigation by George and the deputies quickly resolved the “locked room” mystery. There was clear evidence of fresh digging outside of the pen and a hole large enough for the suspect dog to enter the pen. [188]*188Examination of the birds revealed damage to the necks of both birds resembling teeth marks. Animal Control took the suspect dog away. He was later claimed by the Pignos.

In the meantime, George, seeking to recoup some of her lost investment, attempted to salvage the meat from her slain emus. Unfortunately, the excited state of the emus at the time of their demise rendered the meat too full of blood to be marketable.

While to the casual eye the solution to this “whodunit” might appear obvious, the parties hired men experienced in the raising of emus to ferret out the truth. George engaged the services of Harris Desormeaux, the owner and operator of the largest emu farm in Louisiana, and qualified him as an expert at trial. Desormeaux, relying on his experience raising approximately five thousand emus in pens, concluded that the dog panicked the emus from outside the pen causing them to damage themselves and die. Thereupon, he concluded the dog dug his way into the pen and feasted on his kill. He indicated that he had seen this same scenario played out in the past.

The Pignos engaged the services of Ronald Pesson, a plumbing contractor who raised exotic animals and felt that emus “was ugly enough to raise.” Pesson was not offered as an expert by the Pignos, but the trial judge indicated that he felt Pesson was an expert. Relying on his nineteen years experience raising emus in a pasture, Pesson | ^concluded that the emus had fought between themselves and, in the course of combat, mortally wounded each other.

The trial court concluded that the circumstantial evidence presented by George was not sufficient to prove by a preponderance of the evidence that the Pignos’ dog killed her emus. George lodged this appeal.

RECOGNITION OF PESSON AS EXPERT

By her first assignment, George alleges that the trial court erred in recognizing Pes-son as an expert without first allowing appellant an opportunity to traverse the witness as to his qualifications, and in recognizing him despite his lack of experience raising emus from chicks to adulthood.

Our review of the record indicates that despite the trial court’s statement in open court recognizing Pesson as an expert, appellant did not object to that recognition. In fact, counsel for appellant participated in the trial court’s effort to elicit Pesson’s opinion and sought that opinion in his own questioning as well. It is well established that an appellate court may only address objections actually raised in the trial court. Horton v. McCrary, 92-1123 (La.App. 3 Cir. 7/30/93); 620 So.2d 918; reversed in part on other grounds 93-2315 (La.5/12/94); 635 So.2d 199. Accordingly, given the trial court’s wide discretion in qualifying experts, George’s participation in eliciting the testimony and the failure to make a timely objection, we decline to consider the issue further.

WEIGHT OF EVIDENCE

George’s remaining three assignments, offered in the alternative, may be summarized in the blanket allegation that the trial court’s ruling is manifestly erroneous.

The standard of review for a trial court’s finding of fact is manifest error. Stobart v. State Through Dept. of Transp. & Dev., 617 So.2d 880 (La.1993). This 14court has a constitutional duty to review facts. Ambrose v. New Orleans Police Dept. Ambulance Serv., 93-3099, 93-3110, 93-3112 (La.7/5/94); 639 So.2d 216. In fulfilling our constitutional obligation, we must review the record in its entirety and not just find some evidence to support or controvert the fact finder’s determinations. Stobart, 617 So.2d 880. After review of the entire record, the issue we should resolve is whether the fact finder’s conclusion is a reasonable one, not whether it is right or wrong. Id.

In the present case, George qualified De-sormeaux, the largest emu farmer in the state, as an expert witness. Her expert raised over 5000 emus to adulthood paired in pens. The Pignos’ offered Pesson, a plumber, who had been raising exotic animals as a sideline for many years. The plumber had only raised emus in a pen for a couple of [189]*189months, and had only raised a few to adulthood.

Desormeaux opined that the emus were panicked by the Pignos’ dog until they damaged themselves and died. Whereupon, the dog dug into the pen and chewed their bodies. He testified that he has had penned emus panicked by dogs on his farm and actually had birds damaged in this manner. Furthermore, he stated that he “never, never” heard of two emus fighting until both were dead. He also indicated that emus who are “bonded” to each other through extended proximity in a pen do not fight or exhibit aggressive behavior toward each other. Finally, his unequivocal opinion was that the birds did not kill each other.

Pesson, not having been qualified as an expert by the Pignos, offered opinion testimony at the request of the trial court. Pes-son opined, when pressed by the court, that the emus might have fought with each other striking their throats and then running around until they died. He also testified that his emus were not afraid of dogs, but reminded the court that he keeps emus in a pasture with other exotic animals and not in pens. Moreover, Pesson indicated that he has never actually had an adult emu die in a pen, nor has he ever had one emu cause the death of another.

|sNo doubt constrained by its reading of Landry v. State Department of Transportation, 497 So.2d 743 (La.App. 3 Cir.1986), writ denied 501 So.2d 234 (La.1987), the trial court found that George had failed to prove by a preponderance of the evidence that the Pignos’ dog caused the death of her emus. We must respectfully disagree.

Landry provides that “[W]here proof is to be made using only circumstantial evidence, that evidence taken as a whole, must exclude other reasonable hypotheses with a fair amount of certainty, though it need not negate all possible hypotheses.” Id. at 745, citing Lacey v. Louisiana Coca-Cola Bottling Company, Ltd., 452 So.2d 162, 163 (La.1984).

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Bluebook (online)
696 So. 2d 186, 97 La.App. 3 Cir. 127, Counsel Stack Legal Research, https://law.counselstack.com/opinion/george-v-pigno-lactapp-1997.