Perschall v. State Farm Mutual Automobile Insurance Co.

553 So. 2d 936, 1989 La. App. LEXIS 2188, 1989 WL 138268
CourtLouisiana Court of Appeal
DecidedNovember 16, 1989
DocketNos. 88-CA-2357, 88-CA-2358
StatusPublished

This text of 553 So. 2d 936 (Perschall v. State Farm Mutual Automobile Insurance 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
Perschall v. State Farm Mutual Automobile Insurance Co., 553 So. 2d 936, 1989 La. App. LEXIS 2188, 1989 WL 138268 (La. Ct. App. 1989).

Opinions

BYRNES, Judge.

In these consolidated cases plaintiff seeks damages for personal injuries he sustained in two separate vehicular accidents. A jury awarded the plaintiff the sum of $136,500 against the plaintiffs uninsured motorist carrier.1 The plaintiff appeals this judgment complaining that the trial court erred in: (1) its refusal to grant a judgment N.O.V.; (2) in its charge to the jury regarding their calculation of damages; and (3) in its refusal to grant an additur. We affirm the judgment of the trial court.

The record reveals the following facts:

On the evening of January 21,1984 plaintiff received a telephone call from his father wherein he was advised that his mother had had a stroke. The plaintiff proceeded to his parent’s house which is located in New Orleans East, Lake Kenilworth Subdivision. When he arrived he was told an emergency unit had transported his mother to Methodist Hospital. A neighbor drove Perschall to the hospital and the pair arrived at about midnight. Perschall stayed with his mother until about 5:00 a.m. on the morning of January 22, 1984. He then got into his automobile to drive home. According to the plaintiff, he proceeded southward on Read Road in the right lane. At a point where the road narrows he saw a light in his mirror, heard an engine speed up and a truck which was pulling a boat, struck plaintiff’s vehicle on the left front side. The plaintiff stated he stepped on his brakes, rolled over the curb into the grass where he struck a tree. The truck did not [938]*938stop. Plaintiff left his vehicle and went to a nearby police station where he reported the incident to New Orleans Police Officer Kenneth Maes. Officer Maes investigated the accident and filed a written report (88-CA-2357).

Thereafter, on July 3, 1986, at approximately 6:50 a.m. Kenneth Perschall was traveling west on Almonaster Street in New Orleans. As he reached the intersection of Almonaster and Louisa Streets and was proceeding on a green light, his vehicle was struck by a van which had turned into his path against a red light. The van was owned by Orleans Parish School Board, operated by Earl Landry, and insured by Commercial Union Insurance Company.2 (88-CA-2358).

In each of these vehicular accidents the plaintiff sustained injuries to his back for which he received extensive medical treatment.

JUDGMENT N.O.V.

In his first assignment of error the plaintiff contends that a judgment notwithstanding the verdict should have been granted by the trial court on the jury’s assessment that the plaintiff was contribu-torily negligent in the “hit-and-run” accident of January 22, 1984. He reasons that the defendant failed to prove contributory negligence. The plaintiff argues that since no evidence of contributory negligence was presented to the jury, the trial court erred in refusing to grant the judgment notwithstanding the verdict on this issue. We disagree.

In Blum v. New Orleans Public Service Inc., 469 So.2d 1117 at 1119-1120 (La.App. 4th Cir.1985) this Court discussed the standard to be utilized in considering a motion for a judgment notwithstanding the verdict:

In ruling on a motion for a judgment notwithstanding the verdict, pursuant to LSA-C.C.P. Art. 1810 (now substantially reenacted in LSA-C.C.P. Art. 1811), the trial judge considers all of the evidence and reasonable inferences in a light most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable persons could not arrive at a contrary verdict, the motion should be granted and the trial judge should render a judgment notwithstanding the jury’s findings. On the other hand, if there is substantial evidence of such quality and weight that reasonable and fair minded persons in the exercise of impartial judgment might reach different conclusions, the motion for judgment N.O.V. should be denied. In applying this standard, the court does not weigh the evidence, pass on the credibility of the witnesses, or substitute its factual judgment for the jury’s. Rougeau v. Commercial Union Insurance Co., 432 So.2d 1162 (La.App. 3rd Cir.1983), writ denied 437 So.2d 1149 (La.1983); Campbell v. Mouton, 373 So.2d 237 (La.App. 3rd Cir.1979), appeal after remand, writ denied 415 So.2d 954 (La.1982).

In this case evidence was presented to the jury from which they could have concluded that the plaintiff was contributorily negligent.

That is, James Seal, a draftsman, presented the jury with a sketch of the accident scene testified that the site of the accident is a six lane highway divided by a median and consists of three lanes going north and three lanes going south. In the area of the accident the southbound right hand lane of traffic merges into the middle lane.

This testimony regarding the accident site was corroborated by New Orleans Police Officer Kenneth Maes, who had investigated the accident after its occurrence. Additionally, Officer Maes testified that at the point where the traffic lanes merge, the vehicle in the right lane would be required to yield the right of way to a vehicle in the middle lane.

[939]*939In his testimony concerning the accident, the plaintiff Kenneth Perschall testified that he was traveling southbound on Read Blvd., in the right hand lane. In the vicinity of the narrowing of that roadway he heard the other vehicle speed its engine and then strike him in the left front side. Since the plaintiff was in the right hand lane at the time of the accident and since, according to the testimony of Officer Maes the plaintiff would have had to yield the right of way, his failure to do so would have amounted to contributory negligence. As such the plaintiffs assertion that the defendant failed to prove contributory negligence is without basis in fact.

Moreover, the defendant presented additional evidence of the plaintiffs possible negligence in that the plaintiff was subject to seizures and, because of this fact, had been directed not to drive.

The plaintiff admitted that at the time he applied for his insurance coverage with State Farm he had been apprised by Dr. Taylor, his psychiatrist, that he was suffering from a seizure disorder. The plaintiff, however, did not disclose this condition as a physical disability when he completed the insurance application.

Dr. Levy, a neurosurgeon who examined the plaintiff in 1986, testified that the plaintiff gave him a history of convulsions. Dr. Levy testified that the plaintiff told him that he suffered from the condition from 1983 through 1986. According to the plaintiffs history, the last major convulsion occurred in the latter part of 1983, however he continued to suffer from minor seizures which occurred about once a month. Dr. Levy further testified that Perschall relayed to him that he would experience the seizures suddenly and they would last from 20 to 30 seconds to one minute, with no loss of consciousness. According to Perschall he was no longer taking medicine to suppress his condition and he had begun to drive again sometime in 1985. Dr. Levy stated that such convulsions may result from chemical changes in the brain caused by a blow to the head. Considering the plaintiffs history, Dr. Levy stated he would not recommend that the plaintiff be allowed to drive.

Dr.

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Related

Rougeau v. Commercial Union Ins. Co.
432 So. 2d 1162 (Louisiana Court of Appeal, 1983)
Perniciaro v. Brinch
384 So. 2d 392 (Supreme Court of Louisiana, 1980)
Blum v. New Orleans Public Service, Inc.
469 So. 2d 1117 (Louisiana Court of Appeal, 1985)
Reck v. Stevens
373 So. 2d 498 (Supreme Court of Louisiana, 1979)
Campbell v. Mouton
373 So. 2d 237 (Louisiana Court of Appeal, 1979)

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553 So. 2d 936, 1989 La. App. LEXIS 2188, 1989 WL 138268, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perschall-v-state-farm-mutual-automobile-insurance-co-lactapp-1989.