Posey v. FabrePosey v. Fabre
Raynard J. Fabre was employed as a tug captain by Schieffler Brothers Marine, Inc., which was insured аgainst liability “as owner” of the tug by American Bankers Insurance Company. Those three parties appeal from a judgment for $70,000 for injuries to рlaintiff when Fabre deliberately hit him on the elbow with a pipe.
The issues are whether Fabre is liable despite plaintiff‘s verbal provocation (argued to be “contributory negligence“); if so, whether the employer is liable despite
Facts on Liability
Plaintiff had been a crewman on the tug until Fabre fired him three to six weeks before this incident. On the day of this incident, plaintiff boarded the tug, dоcked in the Harvey Canal, to look for his cousin Jimmy Schieffler, one of the owner‘s principals, whose office was on the dock somе 35 feet from the tug. Plaintiff often stopped at the office to visit his cousin on his way to his nearby work. When plaintiff did not find his cousin at the office, he wеnt to look for him on the tug. Plaintiff accidentally knocked a galley door into Fabre, who was holding a tray of food, and, although plaintiff says hе apologized, he concedes that he may have been “sarcastic.” Fabre ordered plaintiff off the boat, without telling him that Schieffler was in the engine room working. Although there is dispute over details (including whether plaintiff twice boarded the tug), there is agreement that Fabre did oblige plaintiff to leave the boat, and that plaintiff cursed Fabre. Not conceded by plaintiff, but implicitly accepted in the trial judge‘s quеstioning of Fabre, was that plaintiff‘s cursing included calling Fabre “the word . . . M.F.” (Fabre‘s delicacy which prevented his using the word rather than two letters was mаtched by that of counsel and the trial judge, none of whom clarified in the record the word that Fabre found so intolerable.) Fabre, who had picked up a three-foot long pipe to force plaintiff off the tug, himself left the tug to follow plaintiff onto the dock and told plaintiff that if he repeated that epithet Fabre would hit him. Plaintiff did repeat it and Fabre did hit him on the left elbow with the pipe. By this time plaintiff was almost to thе Schieffler office on the dock, some 35 feet away from the tug.
Fabre
Fabre is no doubt liable. His “contributory negligence” argument is but a restatemеnt of the argument that verbal as well as physical abuse, by constituting one the aggressor, should be a defense to one‘s damage action for the beating one received in response. Whatever be its merits in respect to a third person only vicariously liable for the assаult, this argument is rejected in respect to the assaulter himself by Morneau v. American Oil Co., La.1973, 272 So.2d 313.
Schieffler Marine
The trial judge‘s inference that Fabre was acting “in the exercise of the functions in which . . . employed“,
Fabre‘s initial action towards ejeсting plaintiff from the tug did not arise from any employment motivation on his part, but from his annoyance that plaintiff had hit him with the galley door. The ejeсtion was contrary to the presumable interest of his employer‘s principal, Jimmy Schieffler, who regularly received visits from his cousin, plaintiff. Unlike the dispute in LeBrane v. Lewis, La.1974, 292 So.2d 216, this dispute was not “primarily employment rooted“, or reasonably incidental to the employee‘s work duties, although it did occur during the hours of employment and near to although not on the employment premises.
In LeBrane, the supervisory employee was attempting from thе outset of the dispute, and until the stabbing occurred, to further the employer‘s interests by obliging the other employee to get his hair cut suitably and, finally, by firing and evicting that employee. In our case, Fabre had no employment motive. He abandoned his employment in order to pursue thе personal purpose of punishing a taunter. The employer is not vicariously liable and therefore the insurer is not liable.
Quantum
Plaintiff suffered а fracture of the left olecranon process, which required surgery twice (besides later removal of a surgical screw).
The trial judge awarded $3,017.44 medical expenses, $9,937.35 past lost wages, $32,292 future loss of earnings, and $25,000 general damages.
Medical bills prove the $3,017.44 expenses.
The wage awards, computed in plaintiff‘s post-trial brief, are not supported by the evidence. On future loss, the brief had taken the 10% loss in elbow extensibility and converted it into a 10% earnings loss for the life expectancy of plaintiff. But the evidence is that plaintiff was earning over twice as much in construction work as he claimed in brief to have earned prior to his injury. The evidence thus shows no future loss of earnings. On past loss, the brief calculated a 17-month loss of a technically unproven $135 weekly wage. The rеcord does not support 17 months of disability, but the medical reports do show periods of four and five months’ disability after the operations. The maximum proven loss is nine months at $135 weekly, or $5,255.
The general damages award of $25,000 is very probably beyond the “much discretion” of
We conclude that a total award of $10,000 will compensate plaintiff as much as Fabre ought to compensаte him in view of the extreme mitigating circumstances.
Reversed as to Schieffler Marine and American Bankers Insurance at plaintiff‘s cost; amended as to Fabre to reduce quantum to $10,000, with plaintiff and Fabre to divide the costs of this appeal equally.