Moody v. Terry's Roofing & Sheet Metal, Inc.

552 So. 2d 624, 1989 La. App. LEXIS 2105, 1989 WL 134344
CourtLouisiana Court of Appeal
DecidedNovember 1, 1989
DocketNo. 20,872-CA
StatusPublished
Cited by2 cases

This text of 552 So. 2d 624 (Moody v. Terry's Roofing & Sheet Metal, Inc.) 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
Moody v. Terry's Roofing & Sheet Metal, Inc., 552 So. 2d 624, 1989 La. App. LEXIS 2105, 1989 WL 134344 (La. Ct. App. 1989).

Opinion

HIGHTOWER, Judge.

Plaintiff, Herbert Moody, appeals a trial court judgment rejecting his personal injury claim against defendant, Terry’s Roofing and Sheet Metal, Inc. For the reasons indicated, we affirm.

FACTS

Plaintiff was hired as a casual laborer by defendant on January 12,1987, and worked for three days. On the fourth day, January 15, plaintiff and other workers assembled at the employer’s shop in Bossier City at 7:00 a.m., and were then transported to a job site at Brentwood Hospital in Shreveport. Shortly after the crew had begun to work, Milton J. Peters, foreman, discharged plaintiff for nonperformance of his duties. Since plaintiff had no personal transportation, Mr. Peters undertook to use a company vehicle to drive him from the workplace to the residence of plaintiff’s cousin, who lived a short distance away. There, the foreman pulled into a narrow alleyway off the street and let plaintiff out of the truck. The later facts, however, are disputed.

Plaintiff claims that, after a brief and possibly heated discussion concerning his dismissal, he closed the truck door and began walking back down the alley toward the street. He alleges that Mr. Peters then put the truck into reverse and struck him in the back, violently propelling his body into the street.

On the other hand, Mr. Peters relates that plaintiff would not close the vehicle door upon exiting. After being asked to do so, the dismissed employee finally complied but then opened the back door of the truck. After further words were exchanged between the two individuals, plaintiff slammed the back door and walked toward the rear of the truck. Mr. Peters, according to his testimony, then backed the truck up a few feet, stopped, heard a sound after stopping, and next observed plaintiff lying in the street. Mr. Peters decided that plaintiff struck the tailgate of the truck with his hands and then lay down in the street, effectively staging an accident. After being transported to LSU Medical Center, plaintiff was examined in the emergency room. He subsequently received lengthy treatment from a local chiropractor for injuries to his neck and back.

Terry’s Roofing Company, its insurer, and Mr. Peters are defendants in the action. At trial, the parties stipulated that Mr. Peters was within the course and scope of his employment at the time of the accident and therefore covered under the insurer’s automobile liability policy issued to Terry’s Roofing.

DISCUSSION

The trial court held that plaintiff had not borne his burden of proving that an impact from the vehicle caused his injury. Judgment was rendered in favor of defendants without the issue of quantum being addressed.

Plaintiff appeals, asserting four contentions. He first argues that the trial court applied an incorrect standard of proof in the matter. It is next argued that, even assuming application of the proper standard, the court erred in concluding that plaintiff did not prove that he was struck by the vehicle. Third, it is asserted that the trial court erred in not finding that [626]*626plaintiffs damages were the consequence of the alleged impact. Finally, it is contended that the trial court erred in finding plaintiff’s testimony incredible.

Appellant’s first argument centers around the following statement made by the trial court in rendering its oral opinion: “When you bring a case like this you have the burden of proving it beyond a preponderance of the evidence, that is, more probable than not. And this he has not done.” (Emphasis added.) Appellant asserts that this statement, coupled with an earlier reference to motive, indicates that the standard of proof for criminal proceedings was erroneously applied in this case rather than the proper civil standard.

Obviously, in a civil action such as this the appropriate standard of proof is a preponderance of the evidence. Butler v. Baber, 529 So.2d 374 (La.1988); Fussell v. La. Business College of Monroe, Inc., 478 So.2d 652 (La.App. 2d Cir.1985), appeal after remand, 519 So.2d 384 (La.App. 2d Cir.1988). We cannot agree, however, that the trial court lost sight of that standard. When taken in its context, the phrase of which appellant complains was clearly nothing more than a misspeaking of the judge’s intent. The court immediately corrected itself by defining the standard to mean “more probable than not.” Cf., e.g., Fussell v. La. Business College of Monroe, Inc., supra. Hence, when the sentence is read in its entirety, it becomes evident that the trial court simply misstated, rather than misapplied, the standard of proof. Nor does the reference to “motive” add support to appellant’s argument that his evidence improperly encountered a criminal court standard. The statement as to motive was directed toward plaintiff’s credibility, and in no way concerned the burden of proof in the case. We thus find no merit to appellant’s contention.

In his next two specifications of error, plaintiff-appellant argues that the trial court erred in not finding both that he was struck by the truck and that the impact caused the injuries of which he complains. The lower court indeed decided those two issues of fact against plaintiff.

It is well established that a trial court’s finding of fact may not be set aside on appeal in the absence of manifest error or clear wrongness, and where there is conflict in the testimony, reasonable inferences of fact should not be disturbed on review. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), on remand, 370 So.2d 1262, (La.App. 3rd Cir.1979), writ denied, 374 So.2d 660 (La.1979); Canter v. Koehring Co., 283 So.2d 716 (La.1973); Kennedy v. Bearden, 471 So.2d 871 (La.App. 2d Cir.1985), Brents v. Gulf Ins. Co., 465 So.2d 860 (La.App. 2d Cir.1985), writ denied, 469 So.2d 984 (La.1985).

In this case, we have two versions of the same incident. After reviewing all of the evidence presented, we cannot find the lower court clearly wrong in its credibility evaluations or findings of fact. The evidence indicates that Mr. Peters and plaintiff engaged in some sort of argument. It attracted the attention of Marlene and Donald Carrington, who lived in an apartment nearby and overheard loud talking. Mr. Carrington testified that he witnessed plaintiff “pointing his finger and hollering” at Mr. Peters and “doing most of the talking.” However, there were no independent witnesses to what further transpired.

Plaintiff stated he believed that Mr. Peters intentionally tried to run over him with the truck. It is plainly possible that such testimony eroded plaintiff’s credibility before the trier of fact. Other portions of the record also disadvantaged his case. Mr. Peters testified that, during the argument, plaintiff said, “Run over me, I need the insurance.” Mr. Peters remembered stopping the truck before any noise occurred; yet plaintiff claims to have been hit by a moving truck and his body projected from the narrow alleyway into the middle of the adjoining street, Creswell Avenue.

Even if the truck were moving, it would have traveled only a few feet before the impact. It seems improbable that a vehicle thus backing out of a constricted alleyway could accelerate to the high speed necessary as to propel plaintiff into the middle of another street, notwithstanding the law of [627]*627conservation of momentum advanced by plaintiff in brief. According to plaintiff, the truck was approaching the curb at the end of the street when he was struck. Arguably, Mr.

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552 So. 2d 624, 1989 La. App. LEXIS 2105, 1989 WL 134344, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moody-v-terrys-roofing-sheet-metal-inc-lactapp-1989.