Gonzalas v. Louisiana Power & Light Co.

487 So. 2d 1254, 1986 La. App. LEXIS 6615
CourtLouisiana Court of Appeal
DecidedApril 9, 1986
DocketNo. 85-349
StatusPublished
Cited by2 cases

This text of 487 So. 2d 1254 (Gonzalas v. Louisiana Power & Light Co.) 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
Gonzalas v. Louisiana Power & Light Co., 487 So. 2d 1254, 1986 La. App. LEXIS 6615 (La. Ct. App. 1986).

Opinion

KING, Judge.

The issues presented by this appeal are whether or not the trial court erred in finding the defendant at fault for the loss sustained by the plaintiff and whether or not the trial court erred in the amount of its award of damages.

An automobile belonging to Vincent Gon-zalas (hereinafter referred to as plaintiff) was destroyed by a fire on January 1,1984. On April 5, 1984, plaintiff filed suit against Louisiana Power and Light Company (hereinafter referred to as defendant), alleging that the fire started as a result of a “high-line” belonging to defendant falling on his car and causing it to burn. From a judgment in favor of plaintiff, defendant timely appeals. We affirm.

FACTS

The record submitted to this Court on appeal does not contain a transcript of the testimony presented during the trial. In its appellate brief, defendant alleges that the trial court either lost the transcript or could not transcribe the recording of the testimony made at the time of trial. However, the written opinion rendered by the trial judge contains a recitation of facts which, for purposes of this appeal, defendant relies on and asserts must be considered correct. In his written Opinion, the trial judge, who was the trier of fact, stated the following in regard to the evidence presented at trial:

“Ronald Gonzalas, the brother of the plaintiff, testified that on the date in question, he was living in the same house with the plaintiff, VINCENT GONZA-LAS. He testified that he was awakened by a horn blowing. He arose from his bed and went to the door of the house and saw a small flame coming from the interior of the car. He also testified that he saw the electric line laying across the car and the end of the wire was sparking. Ronald Gonzalas, while he did not see the start of the fire, is the only witness who testified at this hearing, that saw the line laying across the car sparking. Whoever blew the horn that woke Ronald Gonzalas up on the night in question, did not testify at this hearing. The other witnesses who testified at this hearing went to the scene after the fire was over. Therefore, Ronald Gonzalas’ testimony was basically uncontradicted.
* * * * * *
As to the amount of damages suffered by the plaintiff, there seems to be a great deal of dispute. The estimate submitted by the plaintiff which was supposedly made by James Chellette of Lewis Roy Motors was in the amount of $1,400.00. However, the estimate submitted by the defendant is $500.00. Mr. Chellette testified under oath that the value was anywhere from $600.00 to $1,000.00. The plaintiff’s petition also asked for the sum of $500.00 to cover loss of use for his vehicle. VINCENT GONZALAS testified under oath that he used his car about 85% of the time to go to work and that he had to pay his father $10.00 a week for transportation to and from work. He lost the use of his vehicle for approximately 12 weeks.”

[1257]*1257The trial court rendered judgment in favor of plaintiff and against defendant, awarding plaintiff $800.00 for the damages to his vehicle and $100.00 for the loss of use of his vehicle, together with legal interest on these sums from date of judicial demand, until paid, and all costs of the proceeding. From this judgment, defendant has timely suspensively appealed, alleging that the trial court erred by:

(1) Making erroneous findings of fact and in finding defendant at fault; and
(2) Awarding plaintiff excessive and manifestly erroneous damages.

RECORD ON APPEAL

Defendant alleges in its appellate brief that the trial court lost, or could not transcribe, the recording of the testimony made at the trial. LSA-C.C.P. Art. 2131 provides:

“If the testimony of the witnesses has not been taken down in writing the appellant must request the other parties to join with him in a written and signed narrative of the facts, and in cases of disagreement as to this narrative or of refusal to join in it, at any time prior to the lodging of the record in the appellate court, the judge shall make a written narrative of the facts, which shall be conclusive.” (Emphasis added.)

Thus, the facts of a case may reach an appellate court in one of three ways: transcribed testimony, stipulated narrative of facts, or the trial court’s written narrative of facts. Johnson v. Bucyrus-Erie Co., 476 So.2d 1074 (La.App. 3rd Cir.1985).

There is no evidence in the record that defendant-appellant made any attempt to request plaintiff-appellee to join with it in a written and signed narrative of the facts. However, defendant bases its appeal on the recitation of facts contained in the trial judge’s written opinion, which defendant adopts and asserts must be considered correct. Additionally, the record does contain exhibits which were apparently admitted into evidence. Accordingly, we will consider defendant’s appeal, based on the facts as contained in the trial judge’s written opinion and on the exhibits contained in the record.

FAULT OF DEFENDANT

Defendant contends that the trial court erred by making erroneous findings of fact and in finding defendant at fault in regard to the loss sustained by plaintiff. More specifically, defendant asserts that the trial court erred in rejecting the fire report of the Marksville Fire Department which was apparently introduced into evidence and which stated that the cause of the fire was unknown.

Although plaintiff alleged in his petition that defendant was liable for the damages to his car on the basis of both negligence and strict liability, the trial judge does not state in his written opinion whether his finding of fault on the part of defendant was based on negligence, strict liability, or both. Therefore, if the trial court’s finding of fault on the part of defendant can be supported under either theory of liability, the trial court’s finding of fault on the part of defendant will be upheld.

LSA-C.C. Art. 2317 provides in relevant part:

“We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.”

Obviously, defendant is the custodian of the highline that fell on plaintiff’s automobile and this fact is not disputed. However, before defendant may be held strictly liable for the damage sustained by plaintiff, plaintiff must prove in addition that the highline was defective, that such defect created an unreasonable risk of damage, and that the damage to his automobile was caused by this defect and was within the ambit of such unreasonable risk. Loescher v. Parr, 324 So.2d 441 (La.1975); Tischler v. City of Alexandria, 471 So.2d 1099 (La. App. 3rd Cir.1985). If these elements of plaintiff’s burden of proof are met, defend[1258]*1258ant can escape liability only by showing that the damage was caused by the fault of plaintiff, by the fault of a third person, or by an irresistible force. Loescher v. Parr, supra; Tischler v. City of Alexandria, supra.

As noted by the trial judge in his written Opinion, the only person who saw the fire and testified during the trial was plaintiff’s brother, Ronald Gonzalas.

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Bluebook (online)
487 So. 2d 1254, 1986 La. App. LEXIS 6615, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gonzalas-v-louisiana-power-light-co-lactapp-1986.