Leaman v. Feinman

WESTERFIELD, Judge. This is a suit for damages for an assault and battery. Plaintiff was awarded a judgment for $2,522, and defendant has appealed. It is contended that plaintiff was the aggressor, and therefore not entitled to any award in damages, and, in the alternative, that the sum allowed is grossly excessive. Complaint is made of a ruling of the trial judge excluding evidence of provocation. Plaintiff, while on the stand, was asked: “Were you on Carondelet Street about a year ago driving behind an automobile, which your former wife was driving and you used Offensive terms toward her (defendant’s sister)”? Both counsel concede that the word “year” as appears in the transcript of the testimony is a typographical error and should be “hour”; but plaintiff’s counsel insists that an hour is too long to serve as justification or mitigation of the assault. With this contention we do not agree, and are of opinion that the circumstances of this case indicate that the resentment of the alleged insult to defendant’s sister occurred with all essential promptness, since it elsewhere appears in the transcript that defendant was told of the insult while dressing himself at his home, some distance from the scene of the assault, and that he left for plaintiff’s office, the-scene of the combat, as soon as he finished dressing. The testimony should have been admitted in mitigation of the damage. Capdevielle v. Christina, 3 La. App. 455; Caspar v. Prosdame, 46 La. Ann. 36, 14 So. 317; Bernard v. Kelley, 118 La. 132, 42. So. 723; Munday v. Landry et al., 51 La. Ann. 303, 25 So. 66. For the reasons assigned, the judgment appealed from is reversed, and it is now ordered that this cause be remanded to the civil district court, with instructions to permit the administration of the excluded testimony, and for further proceedings in accordance with law and consistent with the views herein expressed. Reversed and remanded.