This is a suit for damages arising out of a shooting incident which occurred on January 10, 1979, at an automobile auction in Lake Charles, Louisiana. James C. Riley was injured when a .38 caliber revolver discharged, striking him in the abdomen. He instituted this suit against Danny McGee, who at the time of the incident, was in possession of the revolver. Additionally made defendants were State Farm Fire & Casualty Company (hereafter State Farm), McGee's homeowner insurance carrier; and, Travelers Insurance Company (hereafter Travelers), which provided garage liability coverage to McGee's business, D & M Auto Center. Riley had received worker's compensation benefits as a result of his injuries from Liberty Mutual Insurance Company, who intervened, seeking to recover by preference the amount paid Riley. At the close of the plaintiff's case-in-chief, State Farm moved for a directed verdict. The trial judge granted the motion holding that McGee was engaged in a business pursuit at the time of the shooting and therefore there was no coverage under State Farm's homeowner policy. The trial judge ultimately granted judgment in favor of all defendants, dismissing plaintiff's action with prejudice. Riley and Liberty appealed, however Liberty's appeal was never perfected.
The issues on appeal are (1) whether the trial judge erred in concluding that the plaintiff failed to prove by a preponderance of the evidence that his injuries were caused by the negligence or intentional act of McGee; and, (2) whether the trial judge was clearly wrong in finding that the defendant was engaged in a business pursuit at the time of the shooting.
The evidence discloses that Riley and his family had been friends with McGee and his family for several years. They visited each other's homes on a regular basis. Both Riley and McGee were in the used car business
In his petition, Riley alleged that the discharge of the weapon was due either to the negligence or the intentional act of McGee. The trial judge, in his written reasons for judgment, stated:
In dismissing plaintiff's suit, the trial court concluded that the discharge of the weapon was an accident and that McGee was not responsible. We reverse.
McGee was in possession of a loaded firearm in a public place. There is no question that Riley was injured and that such injuries are the result of the discharge of a firearm which was under the direct and exclusive control of McGee. In Cambridge Mutual Fire Ins. Co. v. State Farm, etc., 405 So.2d 587 (La.App. 3rd Cir.1981), at 589, we stated:
However, there is no direct evidence or allegations of specific acts of negligence on the part of the defendant. Because of this lack of direct proof as to what caused the discharge of the weapon, the trial court held that the plaintiff had not proved by a preponderance of the evidence that the defendant's negligence caused the plaintiff's injuries. Our review of the evidence leads us to apply the doctrine of res ipsa loquitur in evaluating liability. This rule of evidence is properly applied at the termination of a case after all the evidence is submitted.
Res ipsa loquitur is a rule of circumstantial evidence, whereby negligence is inferred on the part of the defendant because the facts indicate this to be the more probable cause of the injury in the absence of other more plausible explanations. Where this principle is properly applied, the circumstantial evidence indicates that the injury was caused by some negligence on the part of the defendant, without necessarily proving just what negligent act caused the injury. Boudreaux v. American Insurance
The essential elements necessary for application of this doctrine are succinctly stated in Falcon v. Bigelow-Litpak Corp. et al., 356 So.2d 507 (La.App. 1st Cir.1977), at 510:
In this case, the attending circumstances are sufficient to invoke the rule of res ipsa loquitur. There is a lack of direct evidence indicating negligence on the part of the defendant. McGee was in possession of a loaded firearm in a public place and is held to a high degree of care. The injuries are the result of the discharge of this firearm. The accidental discharge of a firearm will not commonly occur in the absence of negligence of the one having control of the weapon. The cause of the accident is more properly within the knowledge of the defendant, who had exclusive control over the instrumentality causing the injury. The plaintiff was in no position to observe the defendant or his actions prior to shooting. He had been leaning into the cab of the truck. As he backed away from the cab, he was shot. The plaintiff is therefore entitled to an inference of negligence.
The defendant had the burden of going forward to offset the inference of negligence by bringing forward evidence that would exculpate him from liability, which he failed to do. There was no attempt by the defendant to show that he had exercised due care in the handling of the firearm nor did he show that the discharge was
We, therefore, conclude that the plaintiff has proved by a preponderance of the evidence that the accident was due to some omission of the defendant's duty of care in handling an inherently dangerous instrumentality.
We find no merit to plaintiff's contention that the trial judge committed error in his finding that the defendant was engaged in a business pursuit at the time of the shooting and thus, no coverage was afforded McGee under the State Farm homeowner's policy. McGee owned a used car lot. He testified that at the time of the shooting he was at the Lake Charles auto auction to buy cars. He had bought and sold cars at the auction on many previous occasions. He commonly used cash to buy cars and on the evening in question, he was carrying approximately $30,000.00 on his person. When Riley was shot, McGee was examining one of the vehicles which Riley was selling that night. The record fully supports the trial judge's conclusion that defendant was engaged in a business pursuit at the time of the shooting and that, therefore, defendant's homeowner insurer, State Farm, did not provide coverage under its policy for the injuries complained of by the plaintiff.
We next consider quantum. Plaintiff's only injury was a skin wound, which was due to the subcutaneous bullet track. Plaintiff experienced some pain. Although Riley remained in the hospital for seven days, the duration of hospitalization for treatment of the gunshot wound was only five days. There was no follow-up treatment. The record reveals that a majority of the damages, which the plaintiff claims, is for embarrassment, humiliation and mortification. Although the evidence indicates that the plaintiff has and is experiencing a certain amount of melancholy and depression, from the record we are unable to contribute this condition solely to the shooting incident. The record reflects that after the accident the plaintiff was affected by several unrelated stress producing situations, including the break up of his marriage. Dr. Morin, a psychiatrist who examined the plaintiff testified that his prominent preoccupation centered around his loss of income, loss of personal possessions and loss of his wife. He found no evidence of traumatic neurosis. We nonetheless consider that as a result of the accident, plaintiff suffered some minimal emotional distress. We consider that an award to plaintiff of $5,000.00 in general damages for pain, suffering and emotional distress is appropriate.
The testimony of Joe Cagle, Jr., the owner and general manager of Cagle Chevrolet, established that Riley began employment with Cagle on January 3, 1979 as a used car manager. He worked on a salary and commission basis. After the shooting incident he missed approximately 20 days of work. The record does not reflect how much of this time was attributable to the injuries suffered by him in an unrelated car accident and how much was attributable to the gunshot wound.
Our law does not require plaintiff to establish his loss in an exact amount in order to be entitled to an award for loss of income. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971). We consider that the medical testimony is to the effect that the gunshot wound would take 10 days to two weeks to heal. We attribute 14 of the 20 days of work missed to the gunshot wound. Based on Mr. Riley's pay record for a five month period, we compute the average daily net income to be $70.00 a day and award $980.00 for loss of wages. Plaintiff's medical expenses attributable to the gunshot wound were stipulated to be $899.75. His total special damages are therefore $1,879.75.
AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.