 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Gaston v. Bobby Johnson Equipment Co.11/3/2000
e and found that none of the buyer's actions were the cause of the failure of the engine to perform properly. Therefore, the trial court discounted Johnson's argument that Gaston had notice of defects in the engine due to the installation and maintenance of it. As stated earlier, based upon the record before us, we do not find that the trial court's finding of fact was manifestly erroneous or clearly wrong.
FAILURE TO CALL WITNESS
Johnson objects to Gaston's failure to call "Pop" Willis, Gaston's mechanic, who installed the engine. According to Johnson, Willis had knowledge of the installation of the engine as well as the alleged abuse of the truck by Gaston and his driver. Johnson contends that this was the only witness who had personal, intimate, detailed knowledge of the engine after it left the custody of Johnson. Therefore, Johnson asserts that the failure by the plaintiff to call Willis as a witness should create a presumption that his testimony would have been unfavorable to Gaston. This argument is without merit.
Although an adverse presumption does exist when a witness is available to a party and he fails to call him, the presumption is rebuttable and should not apply when the witness is equally available to the opposing party. Griffin v. Foti, 523 So. 2d 935 (La. App. 4th Cir. 1988), writ denied, 531 So. 2d 272 (La. 1988). See also Thomas v. Albertsons, Inc., supra. In this case, Willis was as available to Johnson as he was to Gaston. Therefore, Gaston's failure to call Willis as a witness cannot be construed against him.
MITIGATION OF DAMAGES
Johnson argues that Gaston failed to prove damages with specificity, and failed to properly mitigate damages. It contends that the tax returns, non-specific testimony of the plaintiff's witnesses and the plaintiff's "wishful optimism" as to what he would have made with the second truck was wholly and completely speculative. Johnson contends that the plaintiff should have leased a truck and used it to meet his business needs. This argument is without merit.
An injured party has a duty to mitigate only if it is reasonable to do so. In mitigating damages, an injured party should exercise the degree of care such as would be taken by an ordinarily prudent individual under the same or similar circumstances. LeBlanc v. Stan Weber & Associates, 93-1057 (La. App. 5th Cir. 5/31/94), 638 So. 2d 463; Barley v. State, Through Department of Highways, 463 So. 2d 689 (La. App. 4th Cir. 1985).
Gaston presented his income tax returns which show that his gross income for 1997 was $60,418.00. He also presented the testimony of Chris Hickman of Gray's Construction Company, John Johnson of Johnson Construction, Jimmy Williams of Triple J Dump Trucks, and Tom Fussell of the Fussell Company. All testified that they frequently hired Gaston to haul material and could have given him more work if the second truck had been operational. The witnesses testified that Gaston frequently worked 9 to 10 hour days at $37.50 per hour. Based upon this evidence, the trial court found that Gaston has sustained lost profits in the amount of $10,080.00. The court determined that Gaston could have operated the truck for three days per week, each week, for the months of May, June and July 1998, for eight hours per day, at a rate of $37.50 per hour. Given this evidence, we conclude Johnson has failed to show that there was manifest error or an abuse of discretion in the trial court's decision to grant an award to Gaston for loss of profits.
ATTORNEY FEES
Gaston answered the appeal, arguing that the trial court erred in failing to award attorney fees. According to Gaston, the trial court mus
Page 1 2 3 4 5 6 Louisiana Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|