Poirier v. Acadiana Bottling Co.

635 So. 2d 1275, 93 La.App. 3 Cir. 919, 1994 La. App. LEXIS 916, 1994 WL 113102
CourtLouisiana Court of Appeal
DecidedApril 6, 1994
DocketNo. 93-919
StatusPublished
Cited by2 cases

This text of 635 So. 2d 1275 (Poirier v. Acadiana Bottling 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
Poirier v. Acadiana Bottling Co., 635 So. 2d 1275, 93 La.App. 3 Cir. 919, 1994 La. App. LEXIS 916, 1994 WL 113102 (La. Ct. App. 1994).

Opinions

YELVERTON, Judge.

This is an appeal by Dudley Poirier and his wife Harriet, the plaintiffs, from a judgment based on a jury verdict rejecting their demands for damages in a suit brought against Everett Castillo, Castillo’s employer, and its insurer. Poirier claimed that he was standing on a highway when Castillo drove by him in a delivery truck, and that a mirror on the side of the truck hit Poirier in the head. The verdict in this ease was that Castillo was not negligent and that his conduct was not a cause in fact of Poirier’s injuries and damages. The jury was asked to find the amount of damages even if it found no liability. The damage blanks on the verdict sheet were filled in with zeroes.

The Poiriers claim the jury erred in its finding of fact and in failing to award damages to the Poiriers. We affirm.

FACTS

Some facts about the accident were not disputed, while others were. The following facts are not disputed by either the plaintiffs or defendants. On December 5,1990, Poirier went with his brother-in-law, James Dela-houssaye, to talk with Clajus Bernard. They could not find Bernard. On their way home on La. Highway 723, Delahoussaye’s vehicle stalled. They pulled to the side of the road fully onto the shoulder. Shortly thereafter, Bernard happened to come down the road in the same direction in his truck. He stopped to render assistance. He did not pull all the way off onto the shoulder. His left wheels stayed on the highway. While the drivers were working on Delahoussaye’s car, both vehicles had their flashers on.

Meanwhile, Castillo was driving down the road in the same direction in a delivery truck as part of his routine of servicing vending machines for his employer, Acadiana Bottling Co., Inc. When he was half a mile away, he noticed the vehicles on his side of the road. It was a clear day at about 10:00 or 10:30 in the morning. He saw Poirier standing outside the truck talking to Bernard who was sitting in his truck. To go around Poirier and the vehicle, he had to pass between a mail box on his left and Poirier on his right. As he drove through, he heard a thump on the right side of his truck. He looked and noticed that the mirror on the right side of his truck had collapsed. (The mirror was one which folds back when pressure is applied from the front.) Bernard sounded his horn and Castillo pulled off to the side of the road.

Delahoussaye and Poirier testified that the mirror hit Poirier in the head. Bernard did not see the mirror hit Poirier in the head, but he heard a thump. Both Bernard and Castillo saw Poirier holding his head with his hands.

The speed of Castillo’s truck and evidence of injury were disputed. Castillo testified that he had reduced his speed to five miles per hour as he drove by. Poirier maintained that Castillo’s speed was 25 miles per hour or more.

Poirier also testified, as did his wife, that there was a visible sign of injury to his head, to which a pack of ice was applied. The records at Abbeville General Hospital emergency room where Poirier went soon after the accident, indicated there was no visible £ign of any injury.

There were other disputes about Poirier’s injuries, particularly his pre-accident condition. As a result of this incident, Poirier allegedly suffered problems with his neck, left arm and lower back. He claimed he had had no neck pain before December 5, 1990, and that the pain started that day. Several months later, in 1992, Dr. John Cobb found and fused a ruptured cervical disc.

There was medical evidence that he had been having neck problems for years. Cer[1277]*1277tain x-rays taken in 1985 and those taken in 1990 right after this accident were virtually identical. Both showed advanced arthritic changes and bony spurs. There was evidence that Poirier told doctors in 1985 he was having neck trouble. He told doctors and the jury in this case that he had no neck trouble until after the 1990 accident.

To recapitulate, the following facts favor Poirier’s side of the case. Castillo’s truck was moving close to Poirier. The mirror hit something and folded in. Castillo both heard and saw the folded mirror. Castillo also saw Poirier’s hand was on his head. Poirier testified that the truck was going 25 miles an hour and the mirror hit his head, knocking him to his knees. Bernard heard a noise then saw Poirier holding his head. Dela-houssaye said he saw the mirror hit Poirier’s head. Castillo reported to his employer that his mirror hit Poirier. Poirier went to the emergency room that same day. Both Poirier and his wife testified that there was a knot and a bruise on his head, that ice was applied, and that he had no prior neck problems. There was a subsequent operation at the C-5, C-6 level. The operating surgeon testified that there could have been an aggravating injury on December 5, 1990.

Recapitulating the testimony and evidence favoring the defendants’ side of the case, the emergency room records reported no visible signs of injury. There was evidence that Poirier suffered neck pain for at least five years before this accident. X-rays in 1985 and 1990 were virtually identical. Poirier gave a deposition before trial which consisted of over a hundred pages. At trial, he either denied many things that he said in his deposition, or testified that he did not remember saying them. Poirier admitted to the jury that he had been found guilty of falsifying an application for unemployment benefits in 1985. He also admitted that he had been found guilty of falsifying a racing application in 1987.

THE JURY VERDICT

The jury answered three interrogatories. Asked if it found from a preponderance of the evidence that defendant, Everett Castillo, was negligent and that such negligence was a cause in fact of Dudley Poirier’s injuries and damages, the response was no. The identical response was made to the second interrogatory which questioned whether Harriet Poirier, Dudley’s wife, suffered injuries and damages for loss of consortium. The third interrogatory addressed the negligence of Dudley Poirier, to which the jury answered that it did not find that Dudley Poirier was himself negligent which negligence was a cause in fact of his injuries and damages. The jury of 12 deliberated three hours. There was one dissenting vote.

It is from this verdict, and the judgment rendered and signed upon the verdict, that the plaintiffs appeal contending manifest error.

MANIFEST ERROR

A Court of Appeal may not set aside a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is 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 evaluations and inferences are as reasonable. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. When the jury’s findings are based on determinations regarding the credibility of witnesses, the “manifest error-clearly wrong” standard demands great deference to the trier of fact’s findings. Rosell v. ESCO, 549 So.2d 840 (La.1989).

The Poiriers claim that it was clear error for the jury to have found Castillo was not negligent since Castillo admits the mirror of his truck struck something. However, the defendants claim that it was reasonable from all the evidence to conclude that Poirier’s head was not struck by the mirror.

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Bluebook (online)
635 So. 2d 1275, 93 La.App. 3 Cir. 919, 1994 La. App. LEXIS 916, 1994 WL 113102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/poirier-v-acadiana-bottling-co-lactapp-1994.