Carter v. Waxley , 1957 La. App. LEXIS 900 ( 1957 )

HARDY, Judge.

This suit was instituted by plaintiff, as administrator of the estate of his minor daughter, seeking recovery of damages to said minor as the result of an assault and battery allegedly committed by the defendant, Marie Waxley. Joined as a defendant is the husband, Joe Waxley. From a judgment in favor of plaintiff in the sum of $565 defendants have appealed. Plaintiff has answered the appeal, seeking an increase in the amount of the award.

The facts are clearly and incontrovertibly established by the record. The defendant husband had been guilty of some extra-marital activities with plaintiff’s daughter, then a few months under the age of 20 years. The defendant wife learned of her husband’s actions, and, on the date of December 11, 1956, administered a severe beating to plaintiff’s minor daughter. Fortunately the injuries inflicted consisted only of numerous bruises and abrasions which, while causing temporary pain and inconvenience, did not result in any serious or lasting physical damage.

The defense is based upon provocation in that the defendant wife was incensed at the actions of plaintiff’s minor daughter and her efforts to alienate the affections of the defendant husband to such a degree that she felt impelled to seek some sort of satisfaction. As a practical proposition it must be admitted that the relations between plaintiff’s daughter and the defendant husband were calculated to offend, provoke and distress the latter’s wife, but this nature of provocation cannot be considered as constituting, in any degree, a justification for a physical attack. While conceding the natural impulse of an offended spouse to vent her feelings upon the party supposedly guilty of an offense against the marital relationship, we cannot find any authority which could be construed as denominating this character of offense as such nature of provocation as would justify a physical assault upon the person.

Examination of the record does not indicate that the award made by the district judge was either inadequate or excessive.

For the reasons assigned the judgment appealed from is affirmed at appellant’s cost.