Forstall v. Daigrepont

551 So. 2d 653, 1989 La. App. LEXIS 1619, 1989 WL 112070
CourtLouisiana Court of Appeal
DecidedSeptember 28, 1989
DocketNos. 89-CA-0146, 89-CA-0147
StatusPublished
Cited by3 cases

This text of 551 So. 2d 653 (Forstall v. Daigrepont) 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
Forstall v. Daigrepont, 551 So. 2d 653, 1989 La. App. LEXIS 1619, 1989 WL 112070 (La. Ct. App. 1989).

Opinions

CIACCIO, Judge.

These consolidated cases arose from a vehicular collision which occurred on the Ponchartrain Expressway on July 21, 1984. A jury verdict found both drivers negligent in causing the accident. The trial judge granted judgment notwithstanding the verdict as to damages only. This appeal follows.

On July 21, 1984 Barry Forstall was driving his pickup truck in the center lane of the Westbank Expressway approaching the toll plaza. His brother, Bryce, was a passenger in his vehicle. At the same time, Eugene Daigrepont was operating a van which was pulling a boat and trailer in the right lane of the Westbank Expressway. Daigrepont was accompanied by his brother Leo who was seated in the passenger seat and his son, Randy, seated in the rear of the van. The remaining facts are in dispute.

According to Forstall and his brother, as the two vehicles were moving into the toll plaza, the boat trailer of the Daigrepont vehicle made contact with the side of the Forstall truck. Daigrepont denies that any contact was made at this point. Both parties agree that the occupants of the vehicles began yelling back and forth and making gestures at each other, although there is a dispute as to which words were actually used. Once the vehicles reached the bridge, Daigrepont alleges that the Forstall vehicle began speeding past his vehicle and cutting improperly into his lane of travel. Conversely, Forstall contends that once he passed through the toll plaza, he tried to ignore the Daigrepont vehicle, but an occupant of that car began throwing soft drink cans at his vehicle. He further contends that Daigrepont pointed a rifle at him at close range, thereby causing him to lose control of his vehicle and strike the Daigrepont van. Daigrepont denies For-stall’s allegations, although a rifle was found in the rear of the van following the accident.

Barry Forstall filed suit against Eugene Daigrepont and his insurer for personal injuries and property damages allegedly sustained in this accident. He alleges in his petition that Daigrepont’s negligence in pointing a rifle at him was the cause of the accident. Leo Daigrepont also filed suit against Eugene Daigrepont, his brother, and against Barry Forstall and his insurer [655]*655on the basis of injuries he sustained in the accident.

These cases were consolidated and tried before a jury which determined that Barry Forstall was 41% negligent and Eugene Daigrepont was 59% negligent in causing the accident. The jury awarded damages to Barry Forstall in the amount of $10,000, and $1,000 to Leo Daigrepont.

Forstall then filed a Motion for New Trial with Alternative Motion for Additur and Judgment Notwithstanding the Verdict. Following a hearing on this motion, the trial judge entered judgment notwithstanding the verdict as to damages, increasing Forstall’s award to $20,000 and Daigrepont’s award to $8,000.

No appeal is taken from the judgment rendered in favor of Leo Daigrepont, and his award is therefore considered final. The only issue presently before us is the judgment rendered in favor of plaintiff, Barry Forstall. Both parties have appealed from this judgment.

On appeal, plaintiff argues that the trial court committed reversible error by: (1) refusing to strike the defense of contributory negligence; (2) failing to instruct the jury that words and gestures could not have caused the accident; (3) failing to submit a jury interrogatory on whether Daigrepont pointed a gun; and (4) refusing to admit into evidence printed sections from a medical manual. In addition plaintiff argues that the general damage award made by the trial judge was inadequate.

Defendants, Eugene Daigrepont and State Farm Mutual Automobile Insurance Company, also appeal from the lower court’s judgment based on one issue: whether the trial judge erred in granting judgment notwithstanding the verdict, thereby increasing the amount of damages awarded by the jury verdict. After reviewing the record, we agree with the defendant and reverse the judgment notwithstanding the verdict, thereby reinstating the jury verdict.

At the close of all the evidence, counsel for plaintiff orally entered a motion to strike defendants’ defense of contributory negligence which was denied by the trial judge. Plaintiff argues that his actions prior to the accident did not constitute negligence, as he was only reacting to defendant’s action in pointing a rifle at him.

The question of contributory negligence is a matter of fact to be determined by the fact finder in light of the circumstances of each case. Soileau v. South Central Bell Tel. Co., 406 So.2d 182 (La. 1981). The test is whether Forstall was acting as a reasonable and prudent person under the circumstances at the time of the accident. The record shows that Forstall participated in yelling and gesturing at the Daigrepont vehicle, and he lost control of his vehicle and entered defendant’s lane of travel. There is sufficient evidence in the record which could support a finding that Forstall’s actions at least in part contributed to the accident. Clearly, this issue was a matter of fact solely within the province of the jury. Based on our review of the record, we find that the trial judge was not clearly wrong in refusing to strike the contributory negligence defense and allowing the question to go to the jury.

Plaintiff next alleges that the trial court erred in failing to instruct the jury that his words and gestures could not have caused the accident. In support of his contention, plaintiff cites to a list of intentional tort cases to show that plaintiff’s mere words and gestures were insufficient provocation to justify defendant’s assault on him by the pointing of the rifle.

Parties to litigation have the right to have all the evidence weighed in light of the proper jury instructions which fairly and reasonably point up the issues presented by the pleadings and the evidence, and which provide the correct principles of law for the jury to consider in application thereto. Reed v. Gulf Ins. Co., 436 So.2d 580 (La.App. 4th Cir.1983).

In an ordinary negligence action such as the one here the applicable legal principles involve whether there was breach of duty which caused harm to plaintiff. Testimony at trial established that both parties engaged in yelling back and [656]*656forth at each other and in making gestures. The jury could have reasonably found that these words and gestures had some direct relationship to the accident, thereby becoming a cause of the accident.

In the jury instructions given by the trial court, the principles of negligence, contributory negligence and proximate cause were included. The jury therefore was able to properly consider the facts in evidence in light of the applicable law.

Plaintiffs reliance on the legal principles applicable to intentional torts is misplaced. Since this is a negligence action, an instruction on whether plaintiffs words and gestures could have justified an assault on plaintiff is inappropriate.

Plaintiff also argues as prejudicial the trial court’s refusal to submit the special interrogatory to the jury on whether a rifle was pointed at the plaintiff. The special interrogatories submitted to the jury to be used in the determination of their verdict and their answers were as follows:

1. Was Eugene Daigrepont negligent? Yes.
2. Was the negligence of Eugene Daigrepont a proximate cause
of the accident? Yes.

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702 So. 2d 1164 (Louisiana Court of Appeal, 1997)
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607 So. 2d 675 (Louisiana Court of Appeal, 1992)
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Cite This Page — Counsel Stack

Bluebook (online)
551 So. 2d 653, 1989 La. App. LEXIS 1619, 1989 WL 112070, Counsel Stack Legal Research, https://law.counselstack.com/opinion/forstall-v-daigrepont-lactapp-1989.