Tucker v. HowesTucker v. Howes
James E. Kuhn, Denham Springs, for defendant.
Before ELLIS, PONDER and SAVOIE, JJ.
OPINION
SAVOIE, Judge.
On December 16, 1980, William Frank Tucker (Plaintiff) filed this action, seeking recovery of damages allegedly sustained as a result of an intentional battery committed upon him by Randolph M. Howes (Defеndant). No answer to plaintiff‘s petition was filed by defendant, nor did he make any appearance in these proceedings. A preliminary default was entered against defendаnt on March 9, 1981. Confirmation of this default occurred on March 12, 1981. After being taken under advisement by the trial judge, judgment in favor of plaintiff in the amount of $2,000.00 was rendered and signed on this date.
Defendаnt has timely perfected a suspensive appeal to this court from the said judgment.
Plaintiff testified that, while at work at a Hammond Pizza Inn on August 10, 1980, he was summoned from a back room by a messаge that defendant wished to speak to him. He stated that when he walked up front, he was immediately grabbed by defendant and thrown against the pizza ovens. He testified that his calls for helр were ignored by people standing around, watching. Defendant held him in this position, with his hands at his throat and screaming at him, until he managed to escape and flee the premises. He stated that he ran to the home of his boss, who lived several blocks away, and told him what had happened. They then returned to the Pizza Inn together, but plaintiff refused to go inside because he was frightened of defendant. He testified that he had not provoked defendant, who began his attack immediately upon seeing him. Plaintiff was seventeen years old at the time of this incident. As a result of this incident, plaintiff sought medical attention from Dr. Lensgraf, a chiropractor.
Plaintiff missed approximately seven days of work as a result of this battery. At the time he was working аpproximately seven hours a day, at a rate of $3.75 per hour.
Pascal Aines, a friend and co-employee of plaintiff at the time, testified on behalf of plaintiff. He statеd that he was working at the Pizza Inn on the night in question and was present during the battery. He testified that he saw defendant push plaintiff against the ovens and hold him there until he finally escaped.
Pat Tucker, plaintiff‘s mother, testified that she paid Dr. Lensgraf for six visits by plaintiff, at $15.00 per visit. She testified that her son has made continuous complaints of pain to her with regard to his injuries. She also stated that plaintiff missed work following this incident, because he was afraid to go back to work.
This matter comes before the Court on three Assignments of Error:
1. The Court erred in allowing the confirmation of a Judgment when an examination of the record reflects that there was lack of proper citation on the defendant in the proceedings.
2. The Court erred in rendеring a Judgment in favor of the plaintiff when there is inadequate and inadmissable testimony and evidence in the record in the plaintiff‘s attempt to prove a prima facie casе in a default judgment.
3. The Court erred in granting a Judgment in the amount eventually rendered against the plaintiff as the record is totally lacking in admissible and competent testimony justifying the judgment ultimately rendered.
ASSIGNMENT OF ERROR NO. 1
Defendant alleges that the service made upon him was improper because it was made by a deputy marshall. Although he seems to raise it as a possibility, defendant does nоt expressly deny that this service, which the return indicates was personal, was made upon him. Rather, he argues that service was improper because it was made by a deputy marshall, an official whom the Code of Civil Procedure does not expressly authorize to make service, and because the record contains no indication that this particular dеputy marshall was authorized to effect service in accordance with
An attack upon the correctness of the return could not properly be raised by defendant in this appeal. If made after judgment, an attack on a return itself may be made only in a direct action to annul the judgment.
ASSIGNMENT OF ERROR NO. 2
Confirmation of a default judgment must be made by admissible and credible evidence sufficient to prove each element of plaintiff‘s claim as though each allеgation had been specifically denied by defendant.
Defendant alleges that plaintiff hаs not met this burden since hearsay evidence is insufficient to make out a prima facie case. Defendant is apparently referring in large part to the introduction into evidence of the following documents: 1) a copy of the minutes of Hammond City Court, establishing that defendant pled nolo contendere to a charge of simple battery arising out of the incident occurring on August 10, 1980, and 2) a handwritten note from Dr. Lensgraf stating that he had treated plaintiff on
The credibility of this testimony was a matter for the determination of the trial judge who, in view of the judgment rendered by him, apparently found it to be credible. His determination in this respect should, therefore, not be overturned in the absence of manifest error. Canter v. Koehring Company, 283 So.2d 716 (La. 1973); Rahm v. Exxon Corporation, 399 So.2d 676 (La.App. 1st Cir. 1981). The record reveals no such error in the present case.
Having established an intentional battery, plaintiff was then required to prove resulting injury.
Even without consideration of this “medical note“, however, there is ample evidence in the record indicating that an injury occurred. Plaintiff testified as to the pain which he expеrienced, as well as the fact that he made six visits to Dr. Lensgraf. Plaintiff‘s mother also testified that he had made numerous complaints of pain to her. Although the testimony of both plaintiff and his mоther could perhaps be considered biased, this is a matter which went to its credibility. The trial judge in the instant case obviously accepted this testimony, and as indicated above, suсh a determination should not be overturned in the absence of manifest error. Canter v. Koehring Company, supra; Rahm v. Exxon Corporation, supra.
ASSIGNMENT OF ERROR NO. 3
The trier of fact is afforded broad discretion in making an award of general damages.
In Reck v. Stevens, 373 So.2d 498 (La. 1979), the Louisiana Supreme Court set out the standard to be followed by Appellate Courts in reviewing trial court damage awards. The court said, at page 501:
“Thus, the initial inquiry must always be directed at whether the trier court‘s award for the particular injuries and their effects upon this particular injured person is а clear abuse of the trier of fact‘s `much discretion‘,
La.Civ.C. Art. 1934(3) in the award of damages. It is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review, for articulated reason, be considered either excessive, Carollo v. Wilson, 353 So.2d 249 (La.1977); Schexnayder v. Carpenter, 346 So.2d 196 (La.1977), or insufficient, Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967). Only after such determination of abuse has been reached, is a resort to prior аwards appropriate under Coco for purposes of then determining what would be an appropriate award for the present case.”
The facts in the present casе indicate support for an award to plaintiff or damages for physical pain and suffering. Plaintiff‘s testimony indicated that the pain he experienced in his back warranted his making six visits to Dr. Lensgraf. He also testified that he continued to experience pain in his back at the time of the trial.
Additionally, it is well established that a plaintiff is entitled to recover damages for
Appellant is to pay all costs.
AFFIRMED.