Pacholl v. State Farm Mut. Auto. Ins. Co.

527 So. 2d 1154, 1988 La. App. LEXIS 1457, 1988 WL 62929
CourtLouisiana Court of Appeal
DecidedJune 22, 1988
Docket87-546
StatusPublished
Cited by3 cases

This text of 527 So. 2d 1154 (Pacholl v. State Farm Mut. Auto. 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
Pacholl v. State Farm Mut. Auto. Ins. Co., 527 So. 2d 1154, 1988 La. App. LEXIS 1457, 1988 WL 62929 (La. Ct. App. 1988).

Opinion

527 So.2d 1154 (1988)

Melvin PACHOLL, et ux., Plaintiffs-Appellants,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., et al., Defendants-Appellees.

No. 87-546.

Court of Appeal of Louisiana, Third Circuit.

June 22, 1988.

*1155 Fuhrer & Flournoy, George Flournoy, Alexandria, for plaintiffs-appellants.

Gist, Methvin, Hughes & Munsterman, De Witt T. Methvin, Jr., H. Greg Walker, Alexandria, for defendants-appellees.

*1156 Before DOUCET, YELVERTON and KNOLL, JJ.

YELVERTON, Judge.

This is an appeal from a judgment for defendants in a personal injury action for damages. Plaintiffs, Melvin Pacholl and his wife, sought damages arising out of an accident that occurred on December 10, 1984, at a service station in Forest Hill, Louisiana. Melvin Pacholl suffered personal injuries in that accident. The jury found Pacholl solely at fault. Plaintiffs complain on this appeal that the trial court committed four prejudicial errors: (1) allowing defendants to bring out before the jury the fact that Pacholl had filed and settled a workmen's compensation claim for a back injury that occurred prior to the accident in dispute; (2) commenting on the evidence; (3) giving incorrect jury charges; and (4) submitting improper jury interrogatories. As their fifth assignment of error they complain that the jury manifestly erred in finding Pacholl solely at fault. We have studied these five assignments of error in the record. We find no error. We affirm.

FACTS

On December 10, 1984, Melvin Pacholl purchased a 1972 Dodge Superior motor home from Jimmie Walker Enterprises of Alexandria, Louisiana. Walker, who was in the motor home business, had acquired the motor home from Grover Gunn a couple of days earlier. Gunn had purchased the motor home new in 1972 and had owned it for 12 years. He testified it was in good mechanical condition when he sold it to Walker.

Immediately after his purchase of the motor home from Walker, Pacholl obtained a safety inspection sticker and then drove to his insurance company's office to have the vehicle insured. While driving home, Pacholl stopped to check the tires at a local service station operated by Louis Patterson.

This was where the accident happened.

After the tires were aired, the motor home would not start. Pacholl, a certified mechanic who had mechanical training in the Army and completed a 22-month course in mechanics at a vo-tech school, checked and cleaned the battery connections as well as the cables to the starter. Everything seemed in order but the motor home still would not start. Patterson, the station operator, trying to help, drove his truck next to the motor home for a "jump start" using Patterson's jumper cables, but the vehicle would not jump start. Pacholl then decided the only way to start it was to get under it and hook the jumper cables directly to the starter. He testified that all this time the gear shift was in "park" and the parking brake was on. Pacholl, while under the motor home, touched the starter post with a cable and the engine turned over. Realizing he would be able to get his motor home started Pacholl hollered for someone to get in the vehicle and give it gas. Patterson volunteered.

When Pacholl, under the motor home, touched the "hot" battery cable to the starter post the second time, the engine turned over. Pacholl hollered, "tell him to give it some gas". Patterson did. The motor home lunged forward 10-12 feet. As it shot forward it twisted Pacholl's leg under the right wheel rolling over it. Patterson testified he stopped the motor home using the foot brake.

Pacholl was hospitalized with a bad knee injury. After he was released from the hospital he found he once more could not start the motor home which was then parked at his house. Contacting M & M Dodge in Alexandria for assistance in locating the problem, he was told it might be the starter relay and where the relay was located. Pacholl replaced the starter relay and it cranked right up. He then had M & M Dodge check the transmission where nothing was found to be wrong.

On these facts the jury found Pacholl solely responsible for his injury.

FIRST ASSIGNMENT OF ERROR: Plaintiff's Compensation Settlement.

Before the trial started, the presiding judge ruled on a motion in limine filed by plaintiff regarding a 1981 work-related back injury. The court ruled forbidding mention of Pacholl's worker's compensation *1157 settlement, but declared that defense counsel could question plaintiff about the injuries he sustained from that accident. On appeal plaintiff is alleging that defense counsel prejudiced Pacholl's credibility with the jury through repeated attempts to inform the jury of Pacholl's worker's compensation settlement arising from the 1981 work-related injury.

It is true that while Pacholl was on cross-examination defendants' attorney came dangerously close to violating the spirit, if not the letter, of the trial court's prohibition against reference to the worker's compensation settlement. While questioning plaintiff about language appearing in the court approved settlement papers, in an apparent effort to tie that language to him through his sworn signature to the verification, counsel used words like "oath", "pleading", "allegations", and referred to a document signed by a judge, and plaintiff's conversation with that judge, and generally used other descriptive language likely to be recognized by an alert juror as describing a lawsuit, and a settlement, over an injury. This was what the trial judge's in limine order had prohibited. This went on for some time, with plaintiff's counsel raising objections and the judge sustaining them, zealous counsel for defendants persisting in his efforts to show an inconsistent statement. Finally, the obviously attentive trial judge intervened:

"Well, I don't see anything inconsistent yet. And you're referring there to a documentation, uh, paragraphs prepared by lawyers. Pleadings and those are, of course, legal statements and I, you know, if you want to ask him now about any particular disability that you had. At any particular time. As it relates to his capacity to do anything now. Sure, go ahead. But not in an effort tangled up through some declarations of, uh, documents and so forth. Unless he prepared the documents and had evidence to back `em up."

And moments later, the trial judge addressed defense counsel again:

"Well, let's get clear on what you're objecting to and what my ruling is. My... my ruling is that you have unlimited scope to question him as to any disability whatsoever. But not tangled up and reading certain catchall phrases from some sort of pleading that he didn't actually prepare himself. Now, that's ... that's very plain."

All of this was in the presence of the jury. Thus, whatever damage counsel's near-violation of the court's order did, the trial judge's words, chastising counsel and taking plaintiff's side, undid. What might otherwise have been an improper comment on the evidence, was in this case merely a balancing of the scales.

We conclude that no prejudice resulted to plaintiff by this episode at the trial.

SECOND ASSIGNMENT OF ERROR: Trial court's commenting on the evidence.

Plaintiff claims the trial court commented on the evidence when the judge stated in his charge to the jury:

"Now, Jimmy Walker, d/b/a Jimmy Walker Enterprises, the seller of the vehicle involved, and Chrysler Corporation, the manufacturer, are not defendants in this particular suit.

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Bluebook (online)
527 So. 2d 1154, 1988 La. App. LEXIS 1457, 1988 WL 62929, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pacholl-v-state-farm-mut-auto-ins-co-lactapp-1988.