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Honeycutt v. State Farm Fire & Casualty Co.12/22/2004
t error-clearly wrong standard demands great deference to the trier of fact's findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Where documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness's story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a factfinder's finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So. 2d 840 (La.1989).
Discussion
Contrary to the defendants' contention, the trial court did not apply strict liability to the instant case. Instead, the court relied upon the doctrine of res ipsa loquitur, as permitted by La. C.C. art. 2321.
In ruling on liability, the trial court stated that it felt it could make "proper common sense inferences," applying res ipsa loquitur and inferring negligence. Under the circumstances of this case, the court said it was unable to rule that there was no liability. In its judgment, the trial court stated that, in its opinion, the height of the McMullen fence was insufficient and that the plaintiff had proven liability as to the defendants.
We find that the trial court was correct in applying the res ipsa loquitur doctrine. It created an inference that the defendants were negligent. Absent negligence, a cow confined within fencing of proper height and maintenance will not wander into the center of the roadway in the middle of the night, endangering motorists. However, McMullen offered no plausible explanation except to testify that neither he nor any member of his family left the gates open and that he observed no open or drooping areas in his fence. He did admit that even new fencing will droop to some extent within a short time. Ms. Honeycutt, on the other hand, testified that she consistently traveled this road on her way home and that she had noticed that some of the fencing in the area of the accident drooped significantly. The trial court made a credibility call which we will not disturb on appeal. Finding no manifest error in the trial court's decision, we affirm its judgment in favor of the plaintiff and against the defendants.
CONCLUSION
The trial court judgment in favor of the plaintiff/appellee is affirmed. Costs of this appeal are assessed against the defendants/appellants.
AFFIRMED.
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