Riley v. McGee

427 So. 2d 509
CourtLouisiana Court of Appeal
DecidedFebruary 3, 1983
Docket82-449
StatusPublished
Cited by3 cases

This text of 427 So. 2d 509 (Riley v. McGee) 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
Riley v. McGee, 427 So. 2d 509 (La. Ct. App. 1983).

Opinion

427 So.2d 509 (1983)

James C. RILEY, Plaintiff-Appellant,
v.
Danny McGEE, Defendant-Appellee.

No. 82-449.

Court of Appeal of Louisiana, Third Circuit.

February 3, 1983.
Rehearing Denied March 22, 1983.

*510 McHale, Bufkin & Dees, Louis D. Bufkin, Lake Charles, for plaintiff-appellant.

Stockwell, Sievert, Viccellio, Clements & Shaddock, Bernard H. McLaughlin, Jr., Lake Charles, Pugh & Boudreaux, Vincent J. Saitta, Lafayette, for defendant-appellee.

Woodley, Barnett, Cox, Williams & Fenet, James E. Williams and Terry Thibodeaux, Lake Charles, for intervenor-appellee-appellant.

Before GUIDRY, CUTRER and LABORDE, JJ.

GUIDRY, Judge.

This is a suit for damages arising out of a shooting incident which occurred on January 10, 1979, at an automobile auction in Lake Charles, Louisiana. James C. Riley was injured when a .38 caliber revolver discharged, striking him in the abdomen. He instituted this suit against Danny McGee, who at the time of the incident, was in possession of the revolver. Additionally made defendants were State Farm Fire & Casualty Company (hereafter State Farm), McGee's homeowner insurance carrier; and, Travelers Insurance Company (hereafter Travelers), which provided garage liability coverage to McGee's business, D & M Auto Center. Riley had received worker's compensation benefits as a result of his injuries from Liberty Mutual Insurance Company, who intervened, seeking to recover by preference the amount paid Riley. At the close of the plaintiff's case-in-chief, State Farm moved for a directed verdict. The trial judge granted the motion holding that McGee was engaged in a business pursuit at the time of the shooting and therefore there was no coverage under State Farm's homeowner policy. The trial judge ultimately granted judgment in favor of all defendants, dismissing plaintiff's action with prejudice. Riley and Liberty appealed, however Liberty's appeal was never perfected.

The issues on appeal are (1) whether the trial judge erred in concluding that the plaintiff failed to prove by a preponderance of the evidence that his injuries were caused by the negligence or intentional act of McGee; and, (2) whether the trial judge was clearly wrong in finding that the defendant was engaged in a business pursuit at the time of the shooting.

The evidence discloses that Riley and his family had been friends with McGee and his family for several years. They visited each other's homes on a regular basis. Both Riley and McGee were in the used car business *511 and both were present at the Lake Charles auto auction on January 10, 1979. Riley was the used car manager for Cagle Chevrolet and had brought several vehicles to the auction to be sold for his employer. McGee, who owned a used car lot, intended to meet a friend from Houston, Texas at the auction. McGee was carrying a large amount of cash with him which was to be used for purchasing cars. He was also carrying a .38 caliber revolver. McGee encountered Riley at the auction and asked him to show him some of the Cagle vehicles. Riley had been instructed by his employer not to sell any cars to McGee across the counter, that is, other than in the auction ring. Riley was in the process of showing McGee a pick-up truck and, while he was leaning over into the truck cab, the loaded revolver which McGee carried in his pocket discharged and struck Riley near the midline of his abdomen. There was no bullet hole or powder burn in McGee's pocket. There was no argument or provocation prior to the shooting. There were no eyewitnesses to the shooting other than plaintiff and defendant. Neither was able to give visual accounts or explain exactly how the revolver discharged. The bullet traveled subcutaneously across the abdomen and exited from Riley's left side, causing an abrasion to his left arm and leaving a bullet track just beneath the surface of the skin. No vital organs were struck. After Riley was shot, he, McGee and two other salesmen went to a nearby lounge to discuss the situation. At the lounge, they had several drinks and agreed that the shooting would be explained as accidental. They then returned to the auction. After an hour, Riley went to the hospital where he remained for seven days. He was treated for the gunshot wound as well as for injuries resulting from an unrelated automobile accident which occurred the night before the shooting.

In his petition, Riley alleged that the discharge of the weapon was due either to the negligence or the intentional act of McGee. The trial judge, in his written reasons for judgment, stated:

"There is not a scintilla of evidence to show the shooting was intentional. Likewise there is no evidence that the gun discharged because of substandard or negligent conduct of McGee."

In dismissing plaintiff's suit, the trial court concluded that the discharge of the weapon was an accident and that McGee was not responsible. We reverse.

McGee was in possession of a loaded firearm in a public place. There is no question that Riley was injured and that such injuries are the result of the discharge of a firearm which was under the direct and exclusive control of McGee. In Cambridge Mutual Fire Ins. Co. v. State Farm, etc., 405 So.2d 587 (La.App. 3rd Cir.1981), at 589, we stated:

"The law is settled that persons who use or handle inherently dangerous agencies, substances, or instrumentalities such as explosives, electricity, firearms, combustibles and fireworks which might endanger persons or property are held to a high or extraordinary degree of care." (Emphasis added)

However, there is no direct evidence or allegations of specific acts of negligence on the part of the defendant. Because of this lack of direct proof as to what caused the discharge of the weapon, the trial court held that the plaintiff had not proved by a preponderance of the evidence that the defendant's negligence caused the plaintiff's injuries. Our review of the evidence leads us to apply the doctrine of res ipsa loquitur in evaluating liability. This rule of evidence is properly applied at the termination of a case after all the evidence is submitted.

Res ipsa loquitur is a rule of circumstantial evidence, whereby negligence is inferred on the part of the defendant because the facts indicate this to be the more probable cause of the injury in the absence of other more plausible explanations. Where this principle is properly applied, the circumstantial evidence indicates that the injury was caused by some negligence on the part of the defendant, without necessarily proving just what negligent act caused the injury. Boudreaux v. American Insurance *512 Co., 262 La. 721, 264 So.2d 621 (La. 1972) on rehearing.

The practical effect of this doctrine was stated by the Supreme Court in Larkin v. State Farm Mutual Auto. Ins. Co., 233 La. 544, 97 So.2d 389 (La.1957), at 391:

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427 So. 2d 509, Counsel Stack Legal Research, https://law.counselstack.com/opinion/riley-v-mcgee-lactapp-1983.