Thibodeaux v. Gilbert

WATSON, Judge.

Plaintiff, Irby Thibodeaux, filed this suit against defendant, Jerald (Gerald) Gilbert, claiming damages resulting from an alleged battery on November 1, 1975, at the Town House Restaurant in Rayne, Louisiana. After hearing the testimony of the witnesses to the incident, as well as that of the parties, the trial court rendered judgment in favor of defendant and dismissed plaintiff’s suit. Plaintiff has appealed.

The only issue on appeal is whether there is manifest error in the trial court’s decision.

Thibodeaux was dining at the restaurant along with Mary Lopez and her daughter, Diana. Gilbert, along with his brother, and their respective wives, had been at Cootsie’s Lounge consuming beer and mixed drinks when they decided to eat at the Town House Restaurant. After they arrived, the ladies went to the rest room, and Gilbert got into a discussion with Thibodeaux, the particulars of which are disputed. Gilbert went outside. Gilbert claimed he did so to let the argument subside, but Thibodeaux said Gilbert invited him out for a fight. In any event, Thibodeaux went outside, and a fight ensued with Thibodeaux sustaining injuries to his thumb and arm as a result. Both parties accuse the other of striking the first blow.

The only disinterested witness was Bertha Pepper, the manager-waitress of the Town House Restaurant. According to her testimony, Thibodeaux, after following Gilbert outside, threw the first punch. (TR 48-49).

Thibodeaux voluntarily went outside to engage in the fight with Gilbert, according to his own testimony. According to the disinterested witness, plaintiff Thibo-deaux struck the first blow. The testimony of a disinterested witness is, of course, to be given greater weight than that of participants in a fight or their friends and relatives. Phillips v. Freiler, 271 So.2d 708 (La.App. 1 Cir. 1972). A person who engages voluntarily in a fist fight cannot complain to the court simply because he suffered the worst of it, absent any unusual circumstances. Buchert v. Metropolitan Life Insurance Company, 219 So.2d 584 (La. App. 4 Cir. 1969).

Likewise, one who strikes the first blow cannot complain because the other party uses reasonable force to defend himself. Phillips v. Freiler, supra.

There is no manifest error in the decision of the trial court in favor of defendant and it is affirmed.

Costs are taxed against plaintiff-appellant.

AFFIRMED.