365 So.2d 1330 (La. 1978), 62446, Arceneaux v. Domingue

Docket Nº62446.
Citation365 So.2d 1330
Party NameJames S. ARCENEAUX v. Drew DOMINGUE, Jimmy Bearb and Allstate Insurance Company.
Case DateDecember 15, 1978
CourtSupreme Court of Louisiana

Page 1330

365 So.2d 1330 (La. 1978)



Drew DOMINGUE, Jimmy Bearb and Allstate Insurance Company.

No. 62446.

Supreme Court of Louisiana.

December 15, 1978

Page 1331

Rehearing Denied Jan. 26, 1979.

Page 1332

L. Lane Roy, Davidson, Meaux, Sonnier & Roy, Lafayette, for defendant-respondent.

Raleigh Newman, Lake Charles, for plaintiff-applicant.

DIXON, Justice.

This damage suit arose when plaintiff's car was struck from the rear by a car owned by Jimmy Bearb and driven by Drew Domingue. There was a jury verdict for the defendants, which was affirmed by the Court of Appeal in an unpublished opinion. We granted writs (359 So.2d 1303 (La.1978)), and reverse.

Arceneaux, on November 22, 1975, pulled up to stop behind a line of traffic, heard the squeal of tires, as if brakes were being applied, and was struck from the rear by Domingue. The impact drove his car into the vehicle ahead of him. Domingue admitted fault to Arceneaux, but told the police investigator that his brakes had failed, the pedal going to the floor when he tried to use them. The police found nothing wrong with the brakes, could not push the pedal to the floor, and found that they operated properly. Domingue's passenger, a Mr. Forestier, was not called to testify for Domingue, although he had offered on the day before trial.

The police charged Domingue with a traffic violation, but, when defendants objected, plaintiff was not permitted to adduce evidence that Domingue had pleaded guilty.

No effort was made to repair the brakes after the Arceneaux accident. Several days later Bearb had an accident in the same car, testifying that, while trying to park the car, "I was going approximately five miles an hour, and my brakes gave out and I bumped the back of a Volkswagen." Bearb then parked his car until he could have his brakes fixed.

Defendants' expert witness (the only one to testify; plaintiff claims his expert was not in court when defendants closed, and the judge denied a brief recess to obtain him. The record before us is silent) testified that "anything can happen to an automobile," and that sudden brake failure is attributable to a failure of a plunger device in the master cylinder or a loss of brake fluid. Defendants' expert was the one who had repaired Bearb's car, but did not remember what had been done. However, a repair ticket or invoice made at the time of the repair showed that nothing had been done to either master. There were three charges: a brake light switch was replaced; a brake cylinder on a wheel was repaired; some brake fluid was placed in the system.

The brake expert testified that Bearb's car had two master cylinders one for the front and one for the rear brakes. If one master cylinder failed, the car would still have brakes on the other wheels. There was no evidence of a sudden loss of brake fluid, such as might have been caused by a ruptured hydraulic line.

There is nothing in the record to support the "latent defect" defense except the testimony of Domingue that the brake pedal suddenly and without forewarning went to the floor when he tried to stop, and the testimony of Bearb noted above.

The Court of Appeal assumed that the jury verdict for defendants "was predicated upon the existence of a latent defect in the defendant vehicle." Then the Court of Appeal purported to apply the rationale of Canter v. Koehring Co., 283 So.2d 716 (La.1973), and found that, considering the testimony

Page 1333

of Bearb, Domingue and the brake expert, there was "no manifest error or abuse of discretion by the jury."

Standard of Appellate Review of Facts

There seems to be widespread misunderstanding of the holding of Canter v. Koehring Co., supra, concerning the appellate review of facts in Louisiana. It was never our intention to hold that a factual determination of the district court is to be sustained by the Court of Appeal if there is some reasonable evidence to support the finding of the judge or jury. That is the standard for review in criminal cases in this state, where the appellate court does not have the jurisdiction to review facts on the question of guilt or innocence, and it is the standard of review in many common law jurisdictions, where the appeal can be taken on questions of law alone. Robertson, Appellate Review of Facts, 21 La.L.Rev. 402 (1961). In Louisiana courts of appeal have full and complete jurisdiction to review facts.

The Constitution of 1974 provides in Article 5, § 10(B):

"(B) Scope of Review. Except as limited to questions of law by this constitution, or as provided by law in the review of administrative agency determinations, appellate jurisdiction of a court of appeal extends to law and facts."

As an aid to the exercise of the appellate function of review of facts in civil cases, we attempted to explain, in Canter v. Koehring, supra, without great detail, the appropriate standard. We said that "even though the appellate court may feel that its own evaluations and inferences are as reasonable," it should not disturb reasonable findings of the trial court when there is conflict in the testimony. We prefaced this observation: "When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court's finding, on review the appellate court should not disturb this factual finding In the absence of manifest error." 283 So.2d 716, 724. (Emphasis added).

We did not foresee that this explanation would be misunderstood to mean that: "There is no manifest error when the evidence before the trier of fact furnishes a reasonable basis for its finding." We said the appellate court should not disturb this factual finding In the absence of manifest error. The difference is important. "Manifestly erroneous," in its simplest terms, means "clearly wrong." We said, then, that the appellate court should not disturb such a finding of fact Unless it is clearly wrong. Therefore, the appellate review of facts is not completed by reading so much of the record as will reveal a reasonable factual basis for the finding in the trial court; there must be a further determination that the record establishes that the finding is not clearly wrong (manifestly erroneous).

Here the jury, if indeed it did predicate its verdict on the existence of a latent defect, was clearly wrong. Not only was the testimony of Domingue and Bearb not supported by other evidence in the record, it was contradicted by all the other evidence on the point. Arceneaux heard the squeal of brakes being applied; the police found the brakes working perfectly; the passenger, available to the defendants, was not produced; plaintiff was prevented from asking Domingue whether he pleaded guilty to a charge of negligent operation of the vehicle; the brake repair revealed nothing indicative of sudden, unexpected failure, or of a latent defect; except for a statement that "anything can happen to an automobile," defendants' expert did not support the claim of latent defect.

If the Court of Appeal had applied the proper standard for the review of facts on appeal, it would have concluded that, in spite of the presence of some evidence in the record which, if believed, would have supported the jury verdict, the verdict was clearly wrong (manifestly erroneous). 1

Page 1334

A lower standard of review in this state would be destructive of the right to appeal in civil cases. This court seldom has occasion to note the practice, but writs are almost never granted by this court on a contention by the applicant that the Court of Appeal was mistaken in its finding of fact. The record is not before us when we receive an application for writs, and there is never enough time for us to determine facts from a record, at any rate. This court necessarily relies on the factual findings of the Court of Appeal, in most cases, in deciding whether or not to review a judgment of the Court of Appeal. If the Court of Appeal should decide, on an appeal of right from the district court, only that there is some evidence to support the judgment, without determining whether the district court judgment is clearly wrong considering all the evidence, the Louisiana system of review breaks down. The losing litigant may never obtain actual review of the district court judgment, if the issue is factual.

Jury Instructions

Ordinarily, having examined the record and having found the defense of latent defect to be unsupported, the matter would be ended. Here, however, the trier of fact was a jury. The plaintiff...

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