Tatum v. Old Republic Ins. Co.

643 So. 2d 419, 94 La.App. 3 Cir. 157, 1994 La. App. LEXIS 2651, 1994 WL 541538
CourtLouisiana Court of Appeal
DecidedOctober 5, 1994
Docket94-157
StatusPublished
Cited by11 cases

This text of 643 So. 2d 419 (Tatum v. Old Republic 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
Tatum v. Old Republic Ins. Co., 643 So. 2d 419, 94 La.App. 3 Cir. 157, 1994 La. App. LEXIS 2651, 1994 WL 541538 (La. Ct. App. 1994).

Opinion

643 So.2d 419 (1994)

Marie TATUM, Plaintiff-Appellant,
v.
OLD REPUBLIC INSURANCE COMPANY, et al., Defendants-Appellees.

No. 94-157.

Court of Appeal of Louisiana, Third Circuit.

October 5, 1994.

*420 Howard N. Nugent Jr., Alexandria, for Marie Tatum.

Randall Lee Wilmore, Alexandria, Jimmy Roy Faircloth Jr., Pineville, for Old Republic Ins. Co., et al.

Before DOUCET, SAUNDERS and WOODARD, JJ.

WOODARD, Judge.

This lawsuit arises out of an automobile accident which occurred at the intersection of Lee Street and Fern Street in Alexandria, La.

FACTS

On August 14, 1990, plaintiff, Marie Tatum, was travelling north on Lee Street, a four lane thoroughfare, with her guest passenger, William Hall. Defendant, Phillip Pearson, was driving a tractor-trailer west on Fern Street, a two lane thoroughfare that forms a "T" intersection with Lee Street. Lee Street is the favored thoroughfare. Traffic on Fern Street is controlled by a stop sign. Mr. Pearson stopped at the intersection and noticed a pickup truck in the right north bound lane of Lee Street. Because traffic was backed up from an intersection farther north, the truck stopped before Fern Street to avoid blocking the intersection.

Mr. Pearson made eye contact with the driver of the pickup, Matthew White, to make certain he was not going to pull up and block the intersection. Mr. Pearson then checked traffic in both directions. He stopped after crossing the first lane in order to check again for traffic in the other lanes. After determining his path was clear, he proceeded across the left north-bound lane in an attempt to turn left onto a south-bound lane. Meanwhile, Mrs. Tatum, who was travelling in the left north-bound lane, noticed the tractor-trailer enter the intersection and then proceed into her lane of traffic. Mrs. Tatum applied her brakes, but was unable to stop in time to avoid a collision.

*421 Mrs. Tatum filed suit against Mr. Pearson and his employer, Conway Southwest Express, claiming she sustained back and neck injuries in the accident. Old Republic Insurance Company was also made a defendant, however, it was dismissed from the lawsuit. A jury trial was held August 10-12, 1993, and the jury returned a verdict finding Mr. Pearson ten percent (10%) at fault and Mrs. Tatum ninety percent (90%) at fault. The jury further determined that Mrs. Tatum suffered damages totalling $10,000: $5,000 for mental and physical pain and suffering and $5,000 for medical expenses. This amount was reduced by her percentage of fault, and judgment, awarding Mrs. Tatum $1,000, was signed September 22, 1993.

Mrs. Tatum appeals and asserts as error: (1) the trial court's failure to give certain requested jury instructions; (2) the failure to admit into evidence the video depositions of two expert witnesses; (3) the jury's apportionment of fault; and (4) the jury's determination of damages. For the following reasons, we affirm.

JURY INSTRUCTIONS

In her first assignment of error, plaintiff claims the trial court erred in failing to instruct the jury that there is a presumption of negligence on the part of the defendant and that the burden of proof shifts to the defendant to prove that his actions in attempting a left turn did not cause the accident.

Plaintiff submitted a set of proposed jury instructions to the trial court on the second day of the trial. Because proposed jury instructions are required to be submitted thirty days prior to trial, the trial court refused to consider the proposed instructions and sustained defendants' objection to them as untimely.

There is a question regarding whether plaintiff preserved her right to appeal the trial court's ruling on this issue.

La.Code Civ.P. art. 1793(C) provides in pertinent part:

C. A party may not assign as error the giving or the failure to give an instruction unless he objects thereto either before the jury retires to consider its verdict or immediately after the jury retires, stating specifically the matter to which he objects and the grounds of his objection. (emphasis added).

The first circuit noted in Martin v. Francis, 600 So.2d 1382, 1387 (La.App. 1 Cir.1992), writ denied, 606 So.2d 541 (La.1992):

[La.Code Civ.P. art. 1793(C)] creates a mandatory rule for preserving objection to a trial court's ruling regarding requested jury instructions. In order to preserve the right to appeal a trial court's refusal to give a requested instruction or its giving of an erroneous instruction, a party must not only make a timely objection, but must state the grounds of his objection. Merely making an objection, without stating any reasons therefor, is insufficient. (citations omitted).

In the case sub judice, plaintiff's counsel objected to the jury instructions as follows:

BY MR. NUGENT: ... May we also, then, object and ask the—that the plaintiff's jury instructions which were admittedly late, but not prejudicial be considered by the Court, and the Court has already advised that it is rejecting all of the plaintiff's jury instructions.
BY THE COURT: That's correct....

This objection fails to state the specific charges objected to and fails to give any grounds for the objection. Thus, plaintiff did not properly preserve the right to appeal the trial court's refusal to give requested jury instructions. This assignment of error has no merit. See Martin, supra; Le v. Johnstown Properties, 572 So.2d 1070 (La.App. 5 Cir.1990).

DEPOSITION TESTIMONY

Next, plaintiff asserts the trial court erred in allowing defendants' accident reconstructionist, Eugene Moody, to testify live at trial after Mr. Moody had given a video deposition. Plaintiff argues that, because the parties stipulated the deposition was for trial purposes, defendants were required to show the deposition testimony at trial and were not allowed to call the witness live. In the alternative, plaintiff argues that she should have been able to show the video deposition *422 to the jury in addition to Mr. Moody's live testimony.

At trial, the court refused to show the video deposition either in lieu of or in addition to Mr. Moody's live testimony. The court told plaintiff's counsel, however, that he would be allowed "liberal cross-examination" and the video deposition could be used during that time for impeachment purposes. Plaintiff's counsel never attempted to impeach Mr. Moody's testimony with the video deposition.

Depositions are allowed in lieu of live testimony where the witness is unavailable, where the witness resides over one hundred miles from the place of trial, or where exceptional circumstances exist. La. Code Civ.P. art. 1450(3)(a), (b), and (c). As Mr. Moody was available to testify at the trial, it would have been improper to also show the jurors his video deposition, except for impeachment purposes. We find no error by the trial court on this issue.

Plaintiff also asserts the trial court erred in failing to allow into evidence the video deposition of Dr. Paul Ware, who conducted a medical examination of Mrs. Tatum at defendants' request. Defendants chose not to introduce Dr. Ware's deposition because it was repetitive of the medical evidence already presented to the jury. Plaintiff's counsel then attempted to introduce the deposition into evidence; however, the trial court denied the request as plaintiff had concluded the presentation of her case the previous day.

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Bluebook (online)
643 So. 2d 419, 94 La.App. 3 Cir. 157, 1994 La. App. LEXIS 2651, 1994 WL 541538, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tatum-v-old-republic-ins-co-lactapp-1994.