
    GRAY v. JOHNSON et al.
    No. 20162.
    Court of Appeal of Louisiana. Orleans.
    June 7, 1954.
    
      John D. Nix, Jr., New Orleans, for appellant.
    Bloch, McCloskey & Dennery, Moise W. Dennery, New Orleans, for appellees.
    McBRIDE and NABORS, JJ., and MARKS, Jr., Judges ad hoc.
   NABORS, Judge ad hoc.

Plaintiff, Nathaniel Gray, and his common law wife, Celestine Baptice, a sister of the defendant, Edward Johnson, lived in the same house with defendant, Edward Johnson, and his common law wife, the defendant, Rose Green. Plaintiff alleges that on Christmas night, December 25, 1951, Johnson maliciously threw scalding water on his back while he was in a kneeling position for the purpose of replacing a turkey in the oven of the stove. The defendants contend that in the course of a fight started by plaintiff, he struck Johnson causing him to fall back on the stove and spill the hot water on plaintiff’s back. The 'Charity Hospital record establishes that plaintiff suffered second and third degree burns. Plaintiff alleges that he suffered damages of $1,008 for loss of wages and $3,500 for pain and suffering. Plaintiff appeals from a judgment dismissing: his suit.

In a written opinion, dictated at the close of the trial, while the testimony was fresh in his mind, the trial judge foun4 that the testimony was conflicting, that the parties were of equal credibility and that the plaintiff’s testimony was not corroborated, and held that since the burden of proof was on the plaintiff, his case must be regarded as not proven. The judge’s opinion reads in part as follows:—

“In a conflict of testimony, equally balanced, the rule is that plaintiff must prove his case by making it certain. When the testimony is in conflict and plaintiff fails to prove his case by a preponderance of the evidence, and the story told by defendant sounds reasonable, the only conclusion to reach is that plaintiff has not proved his case . and sustained the burden of proof.
“All the parties in this case are colored people. They apparently were living peacefully together in the same house without any trouble prior to this instance. I just don’t believe that when people are so friendly, living together, one would deliberately, with malice aforethought, put a pot of boiling water on the stove for the purpose of wilfully scalding another, especially his sister’s common-law husband.”

Since the record contains no evidence which justifies disagreement with the trial judge’s opinion, the judgment of the district court is affirmed at plaintiff’s cost.

Affirmed.  