Harrison v. Howell

384 So. 2d 464, 1980 La. App. LEXIS 3814
CourtLouisiana Court of Appeal
DecidedApril 15, 1980
DocketNo. 10916
StatusPublished
Cited by2 cases

This text of 384 So. 2d 464 (Harrison v. Howell) 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
Harrison v. Howell, 384 So. 2d 464, 1980 La. App. LEXIS 3814 (La. Ct. App. 1980).

Opinion

GULOTTA, Judge.

Defendants appeal from a trial court judgment awarding damages to three plaintiffs for injuries sustained from an automobile/tractor-trailer truck accident. We reverse.

On Friday, June 18,1976 Robert Harrison was driving an automobile in a southerly direction on Bienville Street. Other occupants of the vehicle were Jacqueline Montana, seated in the middle front, and August Harris, seated in the right front. Harris was the owner of the automobile. The tractor-trailer truck was also traveling in the same direction on Bienville Street. After having halted for a stop light at the intersection of Bienville and Broad, the truck struck the rear-end of the automobile when the vehicles had reached a location approximately 100-150 feet from the intersection of N. Rocheblave and Bienville Streets.

Plaintiffs’ version of the accident is that while traveling in the direction of South Claiborne Avenue, on Bienville Street in the vicinity of N. Rocheblave, a large depression or hole extending across the entire width of Bienville Street caused Harrison to slow the speed of his automobile. At this point, while their automobile was still moving slowly in a forward direction, it was struck in the rear by the tractor-trailer truck. The testimony of all three plaintiff-occupants supported this version.

Defendants’ version, as testified to by the truck driver, is that the plaintiffs’ vehicle had earlier passed the truck on the left in the vicinity of Broad and Bienville Streets. After the truck had stopped for a signal light between Broad and N. Rocheblave Streets and was traveling forward at a speed between 15 and 20 miles per hour in third gear, the plaintiffs' vehicle (directly in front of the truck) began backing up toward the truck until they collided. Although an investigation was made of the accident, no police report was offered into evidence and no testimony was received regarding the circumstances surrounding the accident, other than from plaintiffs and the defendant truck driver.

Apparently immediately after the matter was submitted, the trial judge stated, in pertinent part:

“. . . The Court is of the opinion that none of the witnesses were able to tell the Court what really happened. The Court knows, for example, that there is no signal light between Broad and Mario Street on Bienville Street and there has not been any. The Court does know, or the Court believes, that an accident did happen. The Court does not believe these people were backing into this truck. The Court believes that it happened so quick[466]*466ly, that the driver of the tractor-trailer doesn’t know for sure what did happen. We know that an accident was investigated, and we know that, even in the words of the driver of the tractor-trailer, all three of the people appeared to be injured. . . . ”

It is clear from a reading of the trial court’s reasons that he accepted plaintiffs’ version of the accident and rejected defendants’ version. While apparently not casting doubt as to the truck driver’s veracity, it is apparent that his judgment is based upon a credibility determination after evaluation of the conflicting testimony.

Although we are cognizant of the advisability, if not the necessity of a trial judge rendering a judgment from the bench immediately after the matter is submitted, we are cognizant also that in some few instances the best of well-intentioned jurists commit error. Our evaluation of the testimony is one of those cases in which we conclude that the trial judge fell into manifest error.

We recognize and are often reminded of the pronouncement of Canter v. Koehring Company, 283 So.2d 716 (La.1973), in which the Supreme Court stated that when there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluation and inferences are as reasonable. See also Arceneaux v. Domingue, 365 So.2d 1330 (La.1979), where the Supreme Court stated that the appellate court should not disturb a finding of fact unless it is clearly wrong, and Dyson v. Gulf Modular Corp., 338 So.2d 1385 (La.1976), in which the Supreme Court reiterated that the appellate court simply is not free to substitute its own version of the facts, however reasonable it may be, for facts as determined by the trial court unless the lower court committed manifest error by finding facts not reasonably supported by credible evidence in the record.

Relying on these jurisprudential mandates we could easily, in a superficial way, restate the oft-repeated reasons for not finding manifest error; but to do so in this case would constitute a dereliction of our constitutionally-placed responsibility to properly review both law and fact.1 See Sanders v. Hall, 345 So.2d 590 (La.App. 4th Cir. 1977), writ granted, 347 So.2d 248 (1977), on remand, 350 So.2d 262, writ refused December 2, 1977; Barry v. Billac, 250 So.2d 516 (La.App. 4th Cir. 1971).

Consistent with our duty, and after a review of the evidence, we are led to conclude that plaintiffs’ version of the accident is not supported by “credible” evidence. The innumerable and glaring inconsistencies and contradictions in the testimony of the three plaintiff witnesses (which become readily apparent after a reading, re-reading, and comparison of that testimony, not available to the trial judge) test credulity. We point out some of those inconsistencies as unfolded in the record.

The accident-prone Robert Harrison, driver of the automobile was involved in six accidents resulting in back injury between October 1974 and December 1, 1976. Five of these “injuries” resulted from automobile accidents and one resulted from a slip-and-fall incident. All of these incidents resulted in the filing of claims, or money settlements.

The first accident in which this plaintiff was involved occurred on October 24, 1974 when he slipped and fell in a Popeye’s Restaurant injuring his neck and back. This occurrence was followed by a November 19, 1974 automobile accident in which this plaintiff injured his back. Robert Harrison claimed that on May 20, 1976, while driving a truck, he sustained injury to his neck and lower back when another vehicle backed into the truck. Interestingly, August Harris, another of the plaintiffs in this case, was a passenger in the truck at the time of the May 20th accident and suffered injury [467]*467to his neck and lower back. According to the history given to Dr. Alvin M. Cotlar, who testified in this case, Harris struck his head on the dashboard in the May 20th accident, as he did in the June 18th accident. Both of these plaintiffs at that time were treated by Dr. Cotlar and both were last seen by him on June 24, 1976.

The June 18, 1976 accident, with which we are concerned in this case, was followed by a June 21, 1976 accident at Canal and Claiborne Avenues. The three plaintiffs in our case were also occupants of the same automobile in the June 21st accident. According to their testimony, on the Monday following the June 18th accident, after seeing an attorney recommended by Harrison, and while on their way to the doctor’s office recommenced by the attorney, they were struck by another automobile which was in the process of negotiating a turn. The testimony indicates that all three parties received settlements from that accident. It is significant that although Harrison and Harris had been under the care of Dr.

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Related

Gonzalez v. Lockette
410 So. 2d 265 (Louisiana Court of Appeal, 1982)
Harrison v. Howell
392 So. 2d 668 (Supreme Court of Louisiana, 1980)

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Bluebook (online)
384 So. 2d 464, 1980 La. App. LEXIS 3814, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harrison-v-howell-lactapp-1980.