
    Raymond MARCANTEL v. Kelly YOUNG.
    No. 4946.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 1, 1960.
    Nathan Cormie, Larry Roach, Lake Charles, for appellant.
    Jack Rogers, Lake Charles, for appellee.
   LOTTINGER, Judge.

This is a tort action arising out of an altercation which occurred at about 1 o’clock a. m. on July 19, 1958, in the City of Lake Charles. The petition sets forth that the plaintiff heard some one trying to start his pickup truck and, upon investigating, found it to be the defendant. It is alleged that plaintiff opened the door of the truck and as he tried to remove the defendant the latter cut him with a knife several times which required that he be hospitalized for several days. The answer of the defendant admitted the occurrence of the altercation but generally denied the remaining allegations of the petition.

Following trial on the merits the lower court rendered judgment in favor of the plaintiff in the amount of $1,413.25 and the defendant has appealed. The plaintiff neither appealed nor answered the appeal.

The following facts are not disputed: The plaintiff was the owner of an establishment in Lake Charles known as Marcantel’s-Cafe and Bar and lived in his home which was situated adjacent thereto. The defendant had patronized his bar that night having-driven there in his pickup truck. Both men owned pickup trucks which were of light-color and, while not identical, were similar-enough in the dark. Unbeknown to defendant, his wife came and picked up his truck and when he left the bar he got in plaintiff’struck which was parked nearby and tried to start it with his keys. The plaintiff’s-wife heard this, notified the latter who went to investigate. A scuffle ensued with the-result that defendant received a blow to the eye and plaintiff was cut five times with a. knife.

There are, as may be expected, two versions of how the scuffle took place. The plaintiff testified that as he approached the truck which defendant was trying to start,, he informed him that he was in his, the plaintiff’s truck, and asked him to get out, whereupon the defendant not only refused' to get out but began cursing in a loud voice. Plaintiff then jerked him from the truck and, while the two were standing face to-face and plaintiff was explaining that defendant was in the wrong truck, the latter began cutting him with a knife. The plaintiff stated that he was cut several times before he realized it but when he noticed he was bleeding he struck defendant one blow with his fist and knocked him down. The plaintiff stated that he was five feet eight inches tall and weighed about 185 pounds.

The plaintiff was taken immediately to the Memorial Hospital where he was treated by Dr. Robert 0. Emmett. This gentleman stated that plaintiff had suffered stab wounds of the left side of the abdomen, of the left chest and smaller wounds involving the left shoulder and left leg. The wounds were cleaned and sutured and x-rays were taken to ascertain whether there was damage to the heart, lungs or intestinal system. Plaintiff was kept in the hospital under observation for about seven days and for a few months following his release complained of the wound in his left flank.

The plaintiff’s wife testified that the incident occurred about thirty minutes after they had closed for the night and that it was she who told her husband some one was trying to start his truck. She stated that she could not see clearly what was happening but could hear the parties talking and that there was no argument.

The defendant described himself as being five feet eight inches tall and as weighing between 155 and 165 pounds. He stated that he got into the truck thinking it was his and when he was approached by plaintiff told him he was in his own truck. At this time, according to defendant, the plaintiff hit him while he was still in the truck with the door closed. He was then pulled from the truck and fell to the ground. His vision was blurred from blood flowing from above his eye as the result of the blow and, after trying to roll out of plaintiff’s way, who was trying to “stomp” him, and pleading with him to quit hitting him, he reached for his knife and “when he came down on me, I hit or done whatever I could with it to try to get away from him”. He was taken to the hospital and four stitches were taken in the cut above his eye. He also suffered a bruise under the eye. He described the knife he used as being a “very small pocket knife” and insisted that he took it out and opened it while lying on the ground.

We are informed that the trial judge was of the opinion that plaintiff was the aggressor and defendant acted in self defense but that, in so doing he employed unreasonable and excessive force. We believe the plaintiff’s version to be correct, and that he received his wounds as he was pulling the defendant from the truck, and that he did not strike the defendant until after he had been cut. If it can be said that the plaintiff was the aggressor in attempting to remove the defendant from the former’s truck, there was no legal justification for the defendant to have resorted to the use of his knife. Such action on the defendant’s part was unwarranted and unreasonable and constituted the use of excessive force.

The question of quantum has not been raised by either party and the judgment appealed from is therefore affirmed.

Affirmed.  