Combs v. Hartford Ins. Co.

544 So. 2d 583, 1989 WL 51295
CourtLouisiana Court of Appeal
DecidedMay 16, 1989
Docket88 CA 0702
StatusPublished
Cited by33 cases

This text of 544 So. 2d 583 (Combs v. Hartford Ins. Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Combs v. Hartford Ins. Co., 544 So. 2d 583, 1989 WL 51295 (La. Ct. App. 1989).

Opinion

544 So.2d 583 (1989)

Dennis COMBS
v.
The HARTFORD INSURANCE COMPANY, Terry Spitzer Buick, and Valerie Ledig.

No. 88 CA 0702.

Court of Appeal of Louisiana, First Circuit.

May 16, 1989.
Rehearing Denied June 23, 1989.

*584 Clarence T. Nalls, Jr., Baton Rouge, for plaintiff-appellant Dennis Combs.

Robert D. Hoover, Baton Rouge, for defendant-appellee The Hartford Ins. Co., Terry Spitzer Buick, and Valerie Ledig.

*585 Before CARTER, LANIER and LeBLANC, JJ.

CARTER, Judge.

This is a suit for damages arising out of an automobile accident. The defendants stipulated liability, and the case went to trial on quantum. A jury awarded plaintiff $6,800.00 in damages. Plaintiff appeals.

FACTS

Dennis Combs (plaintiff) was injured on March 8, 1986, when an automobile owned by Terry Spitzer Buick, insured by Hartford Insurance Company, and driven by Valerie Ledig ran into the rear of his car. The defendants admitted liability, and after a jury trial, plaintiff was awarded $1,500.00 for past and future physical pain and mental suffering, $2,300.00 for past medical expenses, and $3,000.00 for past lost wages for a total award of $6,800.00.

Plaintiff moved for a JNOV which was denied. He then filed a motion for additur and, alternatively, for a new trial, which was also denied.

Subsequently plaintiff filed this devolutive appeal, alleging the following assignments of error:

1. The trial court erred in allowing into evidence certain photographs of plaintiff.
2. The trial court erred in refusing to allow into evidence the results of plaintiff's CT scan, the testimony of plaintiff's physician witnesses relative to plaintiff's condition at time of trial, and the testimony of plaintiffs former employer.
3. The trial court erred in denying plaintiff's motion for additur or in the alternative a new trial.
4. The jury abused its discretion in awarding plaintiff only $3,000.00 in past lost wages and only $1,500.00 for pain and suffering.

PHOTOGRAPHS

(Assignment of Error No. 1)

Plaintiff contends that the trial court erred in admitting into evidence certain photographs of plaintiff taken by defendant depicting plaintiff engaging in certain physical activities. Plaintiff filed a motion in limine to exclude the photographs, which was denied. Plaintiff noted his objection for purposes of appeal.

Plaintiff now contends that the photographs were not authentic or relevant and had no probative value. Plaintiff's main complaint relative to the authenticity of the pictures is that another person who does not appear in the pictures was present when the pictures were taken. Plaintiff admitted that he was the person shown in the photographs and that he was engaged in the activities depicted. Plaintiff contends that medical testimony presented at trial proved that the activities shown in the photographs could have been performed by a person with injuries such as his. Nevertheless, plaintiff contends the photographs were prejudicial and should not have been admitted into evidence.

A review of the record reveals that during the trial, plaintiff's counsel began questioning plaintiff relative to the photographs. The trial judge pointed out that the photographs had not been introduced into evidence and asked if plaintiff's counsel wished to introduce them. Plaintiff's counsel answered "yes, sir." Plaintiff then continued to use the photographs to present his case in chief. Plaintiff may not now assign error to the inclusion of his own evidence. Hope v. Gordon, on rehearing, 186 La. 697, 173 So. 177 (1937); Jenkins v. Salmen Brick & Lumber Co., 120 La. 549, 45 So. 435 (1908). See also Sparacello v. Andrews, 501 So.2d 269 (La.App. 1st Cir.1986), writ denied, 502 So.2d 103 (La.1987).

This court in Acosta v. Lea, 56 So.2d 201 (La.App. 1st Cir.1952), held that an objection to certain testimony of a witness was waived when the objecting party called the witness and proceeded to examine her on the subject matter of the objectionable testimony without reserving his rights under the previous objection. In quoting Hope v. Gordon, supra, the court reasoned that:

A party may, by his acts or omissions, waive or be estopped to make objections to the admission or exclusion of evidence.
*586 Such waiver or estoppel may arise from failure to object, from acts done or omitted before evidence is offered, as by failure to object to previous similar evidence, or from some affirmative act done after ruling on the evidence. [56 So.2d at 201-202].

Accordingly, this assignment of error has no merit.

EXCLUSION OF EVIDENCE

(Assignment of Error No. 2)

Plaintiff contends that the trial court erred in refusing to allow into evidence the results of plaintiff's CT scan, certain testimony of plaintiff's physician witness, and the testimony of plaintiff's former employer.

The trial judge has discretion in conducting a trial. The judge is required to do so in an orderly, expeditious manner and to control the proceedings so that justice is done. LSA-C.C.P. art. 1631. The judge's discretion includes the order of presentation of witnesses, LSA-C.C.P. art. 1632, as well as the admissibility of a witness's testimony. LSA-C.C.P. art. 1631.

In order to insure an orderly disposition of each case and to avoid surprise and delay, a trial judge may require the parties to participate in a pre-trial conference. The pre-trial conference results in a pre-trial order which controls the subsequent course of the action unless modified at the trial to prevent manifest injustice. LSA-C.C.P. art. 1551. The theories inherent in the pre-trial procedure, to avoid surprise and allow orderly disposition of the case, constitute sufficient reasons for allowing the trial judge to require adherence to the pre-trial order. Brown v. Hawkins, 244 So.2d 896 (La.App. 1st Cir.1971), writ refused, 258 La. 572, 247 So.2d 393 (1971). A pre-trial order may only be modified at trial to prevent manifest injustice. This Court upheld the admission of evidence during trial despite the fact that such evidence was not listed on a pre-trial order where the defendant had actual knowledge of the evidence and when the defendant had an opportunity to rebut the evidence and when no great surprise or prejudice was demonstrated. Recherche, Inc. v. Jewelry Jungle, Inc., 377 So.2d 1329 (La.App. 1st Cir.1979), writ denied, 379 So.2d 254 (La.1980).

CT SCAN

In the instant case, plaintiff had a CT scan performed two days before the trial. The exhibit was not listed on the pre-trial order, and no notice was given to opposing counsel that the CT scan would be used at the trial or offered into evidence. Plaintiff attempted to introduce the results of the CT scan during the testimony of Dr. Marvin D. Clifton, an expert in neurological and clinical medicine. Dr. Clifton first saw plaintiff on June 30, 1986. Dr. Clifton's initial impression was the plaintiff had a severe cervical neck sprain and a possible ruptured disc. Because of these findings, Dr. Clifton advised plaintiff to have a CT scan. However, the CT scan was not performed until two days before trial. Defendants objected to the introduction of the results of the test on the grounds that Dr. Clifton did not perform the test. Plaintiff then attempted to introduce the CT scan on the grounds that Dr. Clifton used the test in his treatment of plaintiff. However, Dr.

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Bluebook (online)
544 So. 2d 583, 1989 WL 51295, Counsel Stack Legal Research, https://law.counselstack.com/opinion/combs-v-hartford-ins-co-lactapp-1989.