Brossette v. ClofortBrossette v. Clofort
Dоnald Brossette (Brossette) filed suit against Robert Lee (Lee) and George Clo-fort (Clofort) for personаl injuries sustained by him as a result of a physical altercation. The trial court found Lee and Clofort liable in sоlido to Brossette in the sum of $179,344.83. This appeal followed.
The main issue to be determined by this court is a factuаl one, that being the question of who was the aggressor in the altercation.
The trial judge’s factual conсlusions as to the events preceeding and during the altercation are very well articulated in his reasоns, and are supported by the evidence. We affirm.
On September 25, 1976, Brossette, his wife and children attended a birthday party at the home of a friend, Curtis A. Keeler. Also in attendance were Lee and Clofort, as well аs their spouses.
Between midnight and 1:00 a.m. Bros-sette and another guest, Mr. dos Ramos became engaged in a heated verbal argument. Brossette was seated on a chair with his daughter’s head resting on his lap. dos Ramos was seated next to him. Apparently threats were exchanged between the two and a short time later the host Keeler, in support of his friend, Brossette, said to Clofort and Lee words to the effect that if dos Ramоs jumped Brossette he (Keeler)
Lee testified that upon hearing the verbal confrontation he went to confront Bros-sette. According to Lеe, Brossette then used vulgarity towards dos Ramos, Lee and others. At that point Brossette arose from the chair and Lee hit him. Lee’s testimony is that Brossette did not swing first but appeared as though he would but “I didn’t give him the chance.” Brossette was knocked back in the chair and his ear started bleeding.
Clofort testified that at that point he came between Brossette and Lee to break up the fight. At first he testified that he was kicked by Brossette, but upon being confronted with his prior deposition he recanted that statement and said Brossette swung at me once, and tried to kick me. “... but he never hit me.” Clofort then struck Brossette in the face knocking him against the wall into various tools.
As a result of the altercation, Brossette sustained severe injuries to his left eye, requiring hosрitalization and surgery. Dr. Rubin, an expert in the field of opthalmolo-gy, testified there is permanent damage tо the 3rd, 4th, 6th and possibly 5th nerve. That damage has resulted in Brossette having what is termed a drooping eye lid, and loss of peripherial vision. Dr. Rubin testified he will never have good vision in any other field of gaze except straight ahead. He will require several pairs of glasses throughout his life to help negate his “double vision”. However it will nеver be cured.
We find it undisputed that Bros-sette did not strike or attempt to strike Lee prior to the attack by Lеe. There is contradictory testimony as to whether Brossette attempted to hit Clofort before Clofort struck. However, we are convinced that there was no physical contact between Brossettе and Clofort before Clofort struck. We conclude that whatever actions Brossette did take after being hit by Lee did not make him the aggressor with respect to Clofort. Furthermore, our jurisprudence is clear that mеre words, no matter how calculated to irritate or excite, cannot justify a battery. Morneau v. American Oil Company,
Clofort and Lеe argue that the trial judge erred in applying the so called “silent evidence” presumption because of the failure of Mr. and Mrs. dos Ramos to testify. Specifically, the trial court found:
“The absence of Mr. аnd Mrs. dos Ramos was not explained, thus it must be concluded that their testimony would be contrary to the position оf the defendants.”
Recently our Supreme Court in Succ. of Lyons,
“If a party to a law suit has the witness available whom he fails to call without explanation, it is presumed that the testimony of the witness would be adverse.” at 1164, citing Succ. of Yeates,213 La. 541 ,35 So.2d 210 (1948).
We must agree with Clofort and Lee with respect tо this issue. There was no showing whatsoever that they had either Mr. or Mrs. dos Ramos available and failed to cаll them. There is no mention in the record by either plaintiff or defendants as to the whereabouts, or any peculiar and masterful knowledge of the incident dos Ramos might have. See, Faucheaux v. Hooker Chemical Corp.,
However, even though we hold the presumption should not have been applied, the evidence as a whole substantiates the trial court’s finding, and we find no manifest error in connection therewith.
In oral argument defendant Lee raises the issue that his blоw was not the cause of Brossette’s damages, and therefore he should not be liable in solido for the entire amount. Although this issue was not briefed, we have considered same when reviewing the record. First we note that the altercation between Lee and Brossette
We do not find error in holding Lеe liable in solido. We find the first paragraph of La. Civil Code Art. 2324 applicable to the instant case. It рrovides:
“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.”
For the above and foregoing reasons the judgment of the lower court is affirmed.
AFFIRMED.