#### Philip J. NAMI v. PENINSULAR FIRE INSURANCE COMPANY et al.

No. 8773.

Court of Appeal of Louisiana, Fourth Circuit.

Feb. 14, 1978.

Rehearing Denied March 15, 1978.

*1037J. Paul Demarest, Favret, Favret & De-marest, New Orleans, for plaintiff-appellee.

Albert H. Hanemann, Jr., Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for defendants-appellants.

Before REDMANN, BOUTALL and BEER, JJ. '

REDMANN, Judge.

Defendant personal liability insurer appeals from a judgment which awarded plaintiff damages for injury to his hand from a gunshot wound suffered at his grandfather’s house from an automatic pistol belonging to the grandfather.

Plaintiff’s petition alleges, and he and his grandfather testified at trial, that the grandfather accidentally discharged the pistol while handing it to plaintiff. But medical records introduced by plaintiff (without objection) and testimony introduced by defendant show that plaintiff had told two treating physicians that he had accidentally shot himself.

Furthermore, according to an agent of the insurer, when the agent telephoned the grandfather about a year after the incident, in response to a letter from a lawyer purporting to represent both grandfather and plaintiff, the grandfather told the agent that plaintiff had shot himself when removing the loaded and cocked gun from atop a television set at the grandfather’s request.

Plaintiff (20 years old at the time of the accident) explained at trial that he was then trying to protect his grandfather from involvement. The grandfather gave no ex*1038planation for his inconsistency. The trial judge concluded that the wound was self-inflicted. He nevertheless imposed liability, reasoning that the “grandfather was negligent in placing on the TV a loaded and cocked (ready to fire) .45 caliber pistol.”

The question presented is whether, after rejecting as a fabrication the sworn testimony of plaintiff and the grandfather (in which action we find no error), the trial judge erred in basing a judgment on the facts stated in the unsworn prior contradictory statements of plaintiff and the grandfather.

We reason that the prior contradictory statements introduced by defendant did not constitute evidence of their substantive content. (That introduced by plaintiff, if evidence of its content despite plaintiff’s disavowal of it, would serve only to show that the wound was self-inflicted and would not implicate the grandfather.) Although the usual impeachment procedure was not employed, defendant’s introduction of the prior inconsistent statements- — especially that of the grandfather — was intended to show the unworthiness of belief of the sworn testimony. To that extent, the introduction of the prior inconsistent statements was similar to the introduction of such statements during impeachment of a witness.

The Louisiana rule on impeachment is the traditional one that the prior inconsistent statement is admissible only for impeachment purposes and is not evidence of the substantive content of the prior statement. *State v. Ray,*1971, 259 La. 105, 249 So.2d 540; *State v. Causey,*1972, 261 La. 1074, 262 So.2d 326; *State v. Gray,*La. 1973, 286 So.2d 644; *State v. McMellon,*La. 1974, 295 So.2d 782; *State v. Kaufman,*La. 1974, 304 So.2d 300; *State v. Williams,*La. 1976, 331 So.2d 467; *Pardue v. Johnson,*La.App. 2 Cir. 1975, 307 So.2d 682, writ refused, La., 310 So.2d 853.

We apply the impeachment rule by analogy in our circumstances, so that at least the grandfather’s prior contradictory statement, introduced by defendant to defeat the cause of action sued upon, does not constitute evidence of its substantive content. Accordingly there is no evidence of that substantive content and the plaintiff has therefore not proved how the accident happened nor why his grandfather’s insurer should be held liable; he has not proved any negligence on the grandfather’s part nor that the grandfather’s negligence caused his injury.

Reversed at plaintiff’s cost.

REHEARING OPINION

PER CURIAM.

Plaintiff represents that he does “not understand the Court’s holding in the last paragraph of its decision” and asks an explanation.

We meant that plaintiff did not prove either the case he testified to and alleged in his petition or the case that the trial judge found.

Plaintiff’s testimony and that of his grandfather at trial time were rejected insofar as they testified that the grandfather accidentally shot plaintiff while handing him the gun. The trial judge, with ample support apart from simple disbelief, rejected that testimony. So plaintiff did not prove that case.

But the trial judge found that the grandfather’s negligence, “in placing on the TV a loaded and cocked . . . [automatic] pistol” caused plaintiff’s injury, in that when plaintiff removed the gun from the TV the cocked gun simply went off, injuring plaintiff. However, plaintiff did not prove that case either. Those facts are not contained anywhere in the record except in the insurer’s agent’s testimony of an un-' sworn statement by the grandfather in a telephone conversation, which was testified to only for purposes of showing a prior inconsistent statement by the grandfather so as to refute the grandfather’s sworn testimony, and not for purposes of establishing the truth of the grandfather’s un-sworn statement.

*1039If the sworn statement and the unsworn statement were simple logical contradicto-ries, such that the falsity of one would entail the truth of the other, then rejection of the sworn statement would necessitate acceptance of the unsworn statement. But the statements here are merely contraries, and not contradictories: they cannot both be true, but they could both be false; the truth of one entails the falsity of the other but not vice versa. That a thing is red means that it is not green; but that a thing is not green does not mean that it is red: it could be blue.

What the record here proves is that plaintiff accidentally shot himself at his grandfather’s house with his grandfather’s gun. Because the sworn testimony has been appropriately rejected and there is no other proof, there is no proof of how the shooting occurred. There is therefore no basis upon which to hold the grandfather at fault in the shooting.