Montgomery v. City of New Orleans

266 So. 2d 482, 1972 La. App. LEXIS 5789
CourtLouisiana Court of Appeal
DecidedJuly 5, 1972
DocketNo. 4831
StatusPublished
Cited by2 cases

This text of 266 So. 2d 482 (Montgomery v. City of New Orleans) 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
Montgomery v. City of New Orleans, 266 So. 2d 482, 1972 La. App. LEXIS 5789 (La. Ct. App. 1972).

Opinion

BOUTALL, Judge.

This is a suit for personal injuries arising out of a collision between a police car and another vehicle in the 2300 block of Louisiana Avenue, New Orleans. Judgment was rendered dismissing plaintiff’s suit, and he appeals.

The undisputed facts show that on Thursday, July 18, 1968, at approximately 6:00 p. m., Patrolman William H. Derbyshire, a member of the New Orleans Police Department, on duty, was driving a marked police vehicle in the left lane of Louisiana Avenue, proceeding toward the river. He executed a left turn into the neutral ground opening in the middle of the block, an auxiliary crossing for a fire station located there, with the intention of making a “U” turn. There is a dispute as to whether the police car stopped, but in any event, it protruded into the left or neutral ground lane of traffic of the opposing roadway, some 2 or 3 feet.

At this same time, the plaintiff, Willie H. Montgomery, was driving his leased vehicle in the opposing roadway of Louisiana Avenue proceeding towards the lake. There was a collision between the left front fender of the police vehicle and the left rear side of plaintiff’s vehicle. Plaintiff urges that his personal injuries arose as a result of this collision.

It is plaintiff’s contention that the police car, in attempting to make its “U” turn, never did stop, but simply continued to roll through the neutral ground opening and into the rear of his car, as he passed in front of it. The defendants, on the other hand, urge that the police vehicle was stopped at a time when Montgomery was some ISO feet away, that Montgomery was in the righthand lane of traffic approaching at that time, and that as he got close to the police car, he attempted to change lanes from the right lane to the left or neutral ground lane, and in making this maneuver in front of the vehicle, caused his left rear to strike the protruding left fender of the police car.

There are several evidentiary questions posed to us, and it is well therefore to first consider these issues before a consideration of the evidence itself.

Appellant contends that the trial court erred in permitting all of the witnesses to remain in the courtroom during the trial, after he had made a motion for sequestration of the witnesses, and that the failure to [484]*484sequester all of the witnesses caused great prejudice to the plaintiff. LSA-C.C.P. art. 1631 reads as follows:

“Art. 1631. Power of court over proceedings; exclusion of witnesses.
The court has the power to require that the proceedings shall be conducted with dignity and in an orderly and expeditious manner, and to control the proceedings at the trial, so that justice is done.
On its own motion the court may, and on request of a party the court shall, order that the witnesses, other than parties, be excluded from the courtroom or from a place where they can see or hear the proceedings, and refrain from discussing the facts of the case with anyone other than counsel in the case. In the interest of justice, the court may exempt any witness from its order.”

We note that the facts stated in appellant’s arguments on this issue are at variance with the record presented to us. The record shows that Mr. Plotkin, counsel for plaintiff, requested a sequestration of the witnesses, and that in response thereto the defense attorney requested that the driver of the police vehicle be allowed to remain because he was a defendant, and that the passenger in the vehicle be allowed to remain as a representative of the City of New Orleans, also a named defendant. To this request, counsel for plaintiff objected on the ground that the passenger was going to be a fact witness. The court then questioned the status of the passenger and was informed that the passenger was also a policeman on duty, and thus was a representative of the City of New Orleans. The record shows that the driver was indeed a named defendant and the court permitted both of these witnesses to remain. Plaintiff counsel then withdrew the rule for sequestration and asked that all witnesses come into the courtroom. Thereupon defendant counsel requested a sequestration of all of the witnesses other than the driver and the passenger. The court denied that request and plaintiff counsel then stated that he would agree with defendant counsel to let everyone stay in the courtroom. The court so ruled and after this was done, plaintiff counsel apparently changed his mind and again asked that the witnesses be sequestered. The court refused to do so, and announced that it had already ruled and the case should be proceeded with.

Under these circumstances, we are of the opinion that the judgment of the trial court was not an abuse of discretion. Certainly, the defendant driver, Derbyshire, was entitled to remain in the courtroom since he was being sued, and the City of New Orleans, who like any other corporation must have some agent or representative present, is entitled to have one of its policemen in the courtroom. It may be well to point out that the interest of the defendant driver and the City of New Orleans are not quite the same. As between themselves there could be some conflict of interest.

The next error alleged is that the court erred in allowing the defendant counsel to cross-examine the defendant driver who was initially called under art. 1634 of the Code of Civil Procedure for cross-examination. LSA-C.C.P. art. 1634 reads in part as follows:

“Art. 1634. Cross-examination of party or representative by adverse party and by all other litigants, including the party being examined.
Any party or his representative may be called as a witness and cross-examined by the adverse party without the latter vouching for his credibility, or being precluded from impeaching his testimony, and immediately thereafter the witness thus called may be examined or cross-examined to the extent otherwise permitted by law upon the subject matter of his examination in chief by such adverse party. The court may permit the recall [485]*485and further cross-examination of the party or of his representative as often as it deems such action to he in the interest of justice.”
* # * * &

In his ruling the trial court was of the opinion that that statute permits cross-examination by his own counsel. We do not interpret the statute as such. We note that the statute contains a limitation with it that is, that the witness called under cross-examination “may be examined or cross-examined to the extent otherwise permitted by law”. As we see it the purpose of the statute was to permit the court to have all of the examination or testimony of the witness on the subject matter of the cross-examination to occur at the same time in order that a better evaluation could be made. Therefore, after being called in cross-examination, the witness could be examined by his own counsel, or cross-examined by counsel for other litigants. He may be cross-examined by his own counsel only in those circumstances permitted under our law, such as after laying a foundation for hostile witness, etc. Counsel for appellee urges to us that unlimited cross-examination is permitted under the federal rules, from which this article was derived. However, the wording of the statute is not the same and the article above mentioned certainly contains a limitation that the examination or cross-examination is only to the extent otherwise permitted by law.

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Bluebook (online)
266 So. 2d 482, 1972 La. App. LEXIS 5789, Counsel Stack Legal Research, https://law.counselstack.com/opinion/montgomery-v-city-of-new-orleans-lactapp-1972.