Johnson v. Sweitzer , 1976 La. App. LEXIS 3975 ( 1976 )

HALL, Judge.

This appeal is from a judgment rejecting plaintiff’s action for damages arising out of an alleged battery intentionally inflicted upon plaintiff’s six year old son by a sixteen year old boy while they were riding home from school on a school bus. Plaintiff, individually and on behalf of his son, originally sued the older boy, his father, the school bus driver, the Union Parish School Board and the School Board’s liability insurer. On appeal, plaintiff pursues his claim only against the teen-age boy and his father.

The thrust of plaintiff’s case is that the sixteen year old boy hit plaintiff’s son and threw him to the floor of the bus, knocking out the child’s tooth. The thrust of defendant’s case is that plaintiff’s son was scampering up and down the aisle of the bus contrary to the driver’s instructions, went up to and hit the sixteen year old boy who was seated, then moved behind the seat, tripped or stumbled, and hit his jaw on a part of the bus, knocking out his tooth.

In oral reasons for judgment given at the conclusion of the trial, the district court found serious discrepancies in the testimony of plaintiff’s witnesses (plaintiff’s son who was then eight years old, the child’s brother who was about a year older, and the child’s cousin about the same age), accepted the testimony of a disinterested teen-age girl who backed up defendant’s version of the incident, and held plaintiff failed to prove his case by a preponderance of the evidence.

The record amply supports the decision of the district court. The testimony of the small children who testified for plaintiff is conflicting and unpersuasive. The testimony of the older children who testified for defendants is consistent, persuasive, and supports a finding that the older boy did not hit the younger boy, throw him to the floor, or otherwise cause him to fall to the floor.

The issue presented on appeal is purely factual. Our finding of the facts is in accord with that of the district court.

For the reasons assigned, the judgment of the district court rejecting plaintiff’s demands is affirmed, at plaintiff-appellant’s costs.

Affirmed.