Washington v. Lake City Beverage, Inc.

352 So. 2d 717
CourtLouisiana Court of Appeal
DecidedFebruary 10, 1978
Docket6154
StatusPublished
Cited by31 cases

This text of 352 So. 2d 717 (Washington v. Lake City Beverage, Inc.) 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
Washington v. Lake City Beverage, Inc., 352 So. 2d 717 (La. Ct. App. 1978).

Opinion

352 So.2d 717 (1977)

Ethel F. WASHINGTON et al., Plaintiffs-Appellees,
v.
LAKE CITY BEVERAGE, INC., et al., Defendants-Appellants.

No. 6154.

Court of Appeal of Louisiana, Third Circuit.

October 17, 1977.
Rehearing Denied December 14, 1977.
Writ Refused February 10, 1978.

*719 Woodley & Fenet by Robert W. Fenet, Lake Charles, for defendants-appellants.

Wilford D. Carter, Lake Charles, for plaintiffs-appellees.

Before DOMENGEAUX, WATSON and FORET, JJ.

FORET, Judge.

This is a suit for damages for personal injuries brought by Mrs. Ethel F. Washington and her husband, Joseph Washington, for general and special damages. The plaintiffs filed an original and four (4) supplemental and amending petitions wherein Ethel F. Washington sought damages for pain and suffering, mental anguish, distress, etc., and Joseph Washington for property damage, medical expenses, future medical expenses, non-use of the wrecked motor vehicle, mental anguish, storage of the wrecked automobile, loss of his wife's wages, traumatic depreciation to the wrecked auto, and rental of a vehicle.

The plaintiffs filed suit against Lake City Beverage, Inc., Allen Fontenot, and Travelers Insurance Company for damages arising out of an automobile accident which occurred in the early afternoon of January 19, 1976, at the intersection of Enterprise Boulevard and Fourth Street in the City of Lake Charles, Louisiana.

After three (3) days of trial, the jury returned the following verdicts:

VERDICT OF JURY

(1) Was Allen Fontenot negligent, and, if so, was such negligence a proximate cause of the accident?

ANSWER: √ _____ (Yes) (No)

(If answered no go no further. If answered yes go to question No. (2).)

(2) Was Ethel F. Washington, contributorily negligent and, if so, was such contributory negligence a proximate cause of the accident?

ANSWER: _____ √ (Yes) (No)

(If answered yes, go no further. If answered no, go to questions No. (3) and (4).)

(3) What was the amount of damages, if any, that were sustained by Ethel F. Washington as a result of the accident?

ANSWER: $ $18.900

(4) What was the amount of damages, if any, that were sustained by Joseph Washington or head and master of the community as a result of this accident?

ANSWER: $ $7.000

From those verdicts, defendants appeal, asserting the following as manifest errors:

(1) The trial court erred in refusing to grant a new trial on the ground that plaintiffs' counsel informed the jury during the closing argument of an attempt to compromise undertaken by one of the defendants;
(2) The trial court erred in refusing to grant a new trial on the ground that the jury behaved improperly in awarding damages in excess of those supported by the evidence, and in awarding plaintiff, Joseph Washington, damages for his inconvenience;
(3) The jury erred in awarding damages to plaintiff Joseph Washington for property damages after the trial court sustained defendants' exception of no cause of action or no right of action as regards those particular damages;
(4) The jury erred in awarding damages for automobile rental and the trial judge erred in his charges given to the jury as regards damages for rental of another motor vehicle;
(5) The trial court erred in failing to sustain defendants' exception of no cause of action and no right of action as regards Joseph Washington's claim for the loss of wages of his wife;
(6) The jury erred in awarding excessive special and general damages.

I.

MISCONDUCT OF PLAINTIFFS' COUNSEL

The misconduct of an attorney during trial may constitute grounds for a new *720 trial. That misconduct normally falls into one or more of the following classifications: (1) Actual misstatement of testimony; (2) Statements of fact not supported by the evidence; (3) Statements of matters not in evidence; (4) Intemperate and/or inflammable language; and (5) Improper aspersions on the character of witnesses, opposing counsel and/or the opposing party. Only where the conduct and/or language produces prejudicial effect which is deemed ineradicable despite judicial declarations to disregard same, will the granting of a new trial be justifiable. 66 C.J.S. New Trial §§ 33-37, pp. 122-132.

In this case, during closing argument, plaintiffs' attorney made the following statement:

"Isn't it logical that after he could not reach an agreement with Travelers Insurance to pay it, they offered to pay it for it now—they offered to pay for it, but—" (Tr., pg. 656)

Counsel for defendants immediately objected thereto, and the trial judge instructed the jury as follows:

"Mr. Carter apparently made a slip of the tongue. He mentioned that Travelers Insurance Company had made an offer to repair the vehicle. That is an erroneous statement. That was not in evidence. That was not before you. You are instructed that you are not to consider the statement made by Mr. Carter as to that statement in any way. It is improper. . ."

The issue of negligence, although contested by the defendants, was not a serious issue in dispute. True, the statement of plaintiffs' counsel was impermissible. However, it was not of such a prejudicial character so as not to be eradicated by the instruction of the trial judge.

II.

AFFIDAVIT OF JUROR

The second ground for a new trial and second specification of error submitted by defendants-appellants is based on an affidavit of James Humble, foreman of the jury which rendered the verdicts in this case. (Affidavit is found on page 158 of the transcript.)

In no case in Louisiana has the affidavit of a juror been used to impeach the verdict of a jury. In all of the judicial pronouncements of our courts upon the issue at hand, the use of juror affidavits to impeach a jury verdict has been denied. In the case of Renz v. Texas & Pacific Railway Co., 138 So.2d 114, 123-124 (La.App. 3 Cir. 1962), this Court provided authorities for that rule.

"The trial court correctly held inadmissible the affidavits or testimony of jurors to impeach their own verdict or to show on what grounds it was rendered. Long ago, under similar circumstances, our Supreme Court held: "The testimony was objected to and ruled out, on the ground that a juror cannot be heard as a witness to impeach the verdict of a jury of which he was a member. The ruling was manifestly correct, under repeated decisions of this court. State v. Bird, 38 La.Ann. [497] 499; State v. Chretien, 35 La.Ann. [1031] 1032; State v. Price, 37 La.Ann. [215] 218; State v. Millican, 15 La.Ann. 557; State v. Brette, La.Ann. [652] 653; State v. Caldwell, 3 La.Ann. 435" State v. Morris, 41 La.Ann. 785, 786, 6 So. 639.
See also; Godfrey v. Soniat, 33 La.Ann. 915; Duhon v. Landry, 15 La.Ann. 591; Jeter v. Heard, 12 La.Ann. 3; Cire v. Rightor, 11 La. 140; Campbell v. Miller, 1 Mart (N.S.) 514; Klein v. Medical Building Realty Co., La.App. Orleans, 147 So. 122.
No Louisiana cases contrary thereto are cited by defendant-appellant, and none could be found. It therefore appears that, under the settled jurisprudence, the trial judge was correct in refusing to admit evidence showing that the jurors wished to impeach their verdict.

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