Wahden v. Sanders

507 So. 2d 862, 1987 La. App. LEXIS 9448
CourtLouisiana Court of Appeal
DecidedMay 1, 1987
DocketNo. 87-CA-34
StatusPublished
Cited by2 cases

This text of 507 So. 2d 862 (Wahden v. Sanders) 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
Wahden v. Sanders, 507 So. 2d 862, 1987 La. App. LEXIS 9448 (La. Ct. App. 1987).

Opinion

WICKER, Judge.

This appeal arises from a claim for damages filed on behalf of Roger Wahden (Wahden), plaintiff/appellant, against Christopher Sanders, defendant/appellee1 for damages allegedly sustained as the result of a rear-end collision caused by defendant Christopher Sanders’ vehicle on March 2, 1984. The matter was tried before a jury which found that Christopher Sanders2 was negligent; however, the jury concluded that his fault was not a proximate cause of the damages sustained by the plaintiff. Wahden now appeals. We affirm.

On March 2, 1984, Wahden’s van was struck from the rear by a vehicle driven by Wilda Jean Jay who was hit by a van driven by Wallace Weeks (Weeks) as the result of a chain reaction which began when Christopher Sanders struck Weeks’ [863]*863van, the first of four vehicles involved in this collision. Christopher Sanders, who was 15 at the time of the accident, was driving a car owned by his mother, Carolyn Sanders. The Sanders’ vehicle was insured by Allstate Insurance Company.

Wahden presented a history of four prior accidents which caused injury. Moreover, he related to Dr. Wayne C. McClendon (McClendon), his chiropractor, two other prior incidents which caused him pain; namely, a January 3, 1984 incident in which he attempted to change a fuel pump on his car, and a March 1, 1984 incident in which he carried his daughter on his shoulders at a parade.

Wahden now appeals that adverse judgment denying him recovery for any damages and asserts the following specification of error:

That the finding of fact by the jury in this matter and hence the verdict of the trial court constitutes manifest error due to the disregard by the jury of the evidence presented and the instruction3 given by the judge at trial.

Our Louisiana Supreme Court held in Coleman v. Victor, 326 So.2d 344, 348 (La.1976) that “[i]t is well settled that plaintiff has the burden of proving by a preponderance of the evidence damages caused by defendant’s fault.”

The jury evidently concluded that Wah-den did not receive injuries beyond those he already sustained in earlier accidents or incidents; nor did he suffer any exacerbation of the earlier injuries in the March 2, 1984 accident. In reaching this conclusion the jury had the benefit of medical experts.

The medical experts who testified on behalf of Wahden were McClendon, a chiropractor, and Dr. Kenneth Vogel (Vogel), a neurosurgeon. The deposition testimony of Dr. David H. Jarrott (Jarrott), a neurosurgeon, was also introduced into evidence; however, Jarrott last examined Wahden on September 23, 1983. He did not see Wah-den following the March 2, 1984 accident. Dr. Russell Grunsten (Grunsten), an orthopedic specialist, testified on behalf of the defense.

The record in the instant case consists of conflicting testimony taken in open court in the presence of the jury and one deposition of a medical expert taken out of the presence of the jury. With regard to the testimony adduced at trial, we follow the standard of review set forth in Canter v. Koehring Company, 283 So.2d 716 (La.1973) and its progeny.

In Canter, supra, the Louisiana Supreme Court held that:
[w]hen there is evidence before the trier of fact which upon its reasonable evaluation of credibility, furnishes a reasonable factual basic for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error ... the reviewing court must give great weight to factual conclusions of the trier of fact; 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 evaluation and inferences are as reasonable. The reasons for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts. [Emphasis applied; Citations omitted] Id. at 724. See also, Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

[864]*864Moreover, we have applied the Canter standard in instances where there are differing medical opinions presented at trial. Cross v. Hingle, 475 So.2d 1384 (La.App. 5th Cir.1985); Long v. St. Paul Fire and Marine Ins. Co., 487 So.2d 732 (La.App. 5th Cir.1986). We have also applied the Canter standard in cases in which the jury is the trier of fact. Antonatos v. Hampton, 480 So.2d 1029 (La.App. 5th Cir.1985), writ denied 482 So.2d 630 (La.1986).

In Jefferson, supra the court considered a case before a jury in which although the defendant was found to be at fault, as in the instant case, the plaintiffs had failed to meet their burden of proof that they sustained damages which were caused by the defendant’s tortious act. The Jefferson court held that:

[t]he determination of credibility is properly allocated to the trier of fact (the jury). When that determination is reviewed by an appellate court, reasonable inferences of fact supported by the evidence in the record are not to be disturbed even though there may be other reasonable inferences of fact also supported by the evidence See Williams v. Allstate Insurance Company, 367 So.2d 1318 (La.App. 4th Cir.1979). Jefferson, supra at 353.

However, when we review factual findings which are based upon a deposition, the Canter standard is inappropriate since the jury is not in a better position than an appellate court to assess the credibility of the witness. Cheramie v. Board of Trustees, 482 So.2d 742 (La.App. 1st Cir.1985), writ denied, 486 So.2d 734 (La.1986).

Therefore,

[w]hen evaluating depositions rather than live testimony we must determine the sufficiency and preponderance of the evidence. Hayes v. Commercial Union Assurance Company, 459 So.2d 1245 (La.App. 1st Cir.1984), writ denied, 462 So.2d 1247 (La.1985); Gould v. State, Through Department of Corrections, 435 So.2d 540 (La.App. 1st Cir. [1983], writ denied, 438 So.2d 1107 (La.1983). Cheramie, supra at 747.

See also Brousseau v. Tucker, 479 So.2d 446 (La.App. 1st Cir.1985); Foster v. Chambers Const. Co., Inc., 489 So.2d 1311 (La.App. 1st Cir.1986), writ denied, 493 So.2d 643 (La.1986).

At the outset we note that Jarrott’s deposition testimony is insufficient to establish by a preponderance of the evidence a causal connection between the March 2, 1984 accident and any injuries which were allegedly sustained by Wahden since Jarrott never examined Wahden following the accident at issue.

Mindful of the Canter, supra standard and its progeny, we now turn to the conflicting evidence presented at trial.

Both Wahden and McClendon testified that despite the fact that Wahden had not been released from McClendon’s care for prior accidents, Wahden had showed significant improvement just prior to the accident at issue.

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Related

Pitard v. Davis
599 So. 2d 398 (Louisiana Court of Appeal, 1992)
Wahden v. Sanders
508 So. 2d 826 (Supreme Court of Louisiana, 1987)

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507 So. 2d 862, 1987 La. App. LEXIS 9448, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wahden-v-sanders-lactapp-1987.