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Keywords

plaintiffdefendantdamagestrialsustained

plaintiffdefendantdamagesliabilityappeal

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Story v. Martin, 217 So.2d 758

Facts

The plaintiff, a student in a karate class, was struck by his instructor, Rikuo Takizawa, after a lesson had concluded. The incident occurred in the locker room, where the instructor allegedly misinterpreted the plaintiff's comments and reacted violently. The plaintiff sustained minor injuries, and the instructor's poor English skills were noted during the trial. The instructor and his employer, Marty Martin, counterclaimed for defamation based on statements made by the plaintiff in his petition.

With regard to the liability of Mr. Takizawa, it is undisputed that Plaintiff was a student in a karate class conducted by Mr. Takizawa, and that Mr. Takizawa struck Plaintiff on the right cheek at least once in the locker room after the lesson had been completed.

Issue

Did the trial court err in holding the individual defendant liable after he was deleted as a co-defendant, and were the reconventional demands for defamation properly dismissed?

The Court of Appeal, Yarrut, J., held that the City Court was in error in casting alleged employer, who had been deleted as a defendant, personally in the judgment, and that claims in reconvention for damages for alleged slander were properly denied.

Rule

A claim in reconvention for damages must prove malice and lack of probable cause, and a defendant cannot be held liable if they have been deleted from the case.

In order to sustain a claim in reconvention for damages growing out of the allegations in the petition, Defendant must prove malice and want of probable cause.

Analysis

The court determined that the instructor's actions constituted an unprovoked assault and battery, as there was no evidence linking the strike to karate instruction. Furthermore, since the individual defendant had been deleted from the case, the trial court incorrectly held him liable. The court also found that the counterclaims for defamation lacked sufficient evidence of malice.

However, there is no evidence to the effect that the blow struck had any connection with the karate instruction which had terminated, and the evidence preponderates that Mr. Takizawa struck Plaintiff for some personal reason, and was nothing less than an unprovoked assault and battery.

Conclusion

The court annulled the judgment against the individual defendant, reversed the dismissal of the third-party demand, and affirmed the award of $410 to the plaintiff.

Judgment annulled in part, reversed in part, and affirmed in part.

Who won?

The plaintiff prevailed in the case, as the court found that the instructor's actions were unprovoked and awarded damages for the assault.

Judgment was rendered in favor of Plaintiff against Marty Martin, d.b.a. Crescent City Health Club, and Rikuo Takizawa, in solido, for $410.00.

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