Oh v. Allstate Ins. Co.
| Decision Date | 22 February 1983 |
| Docket Number | No. 82,82 |
| Citation | 428 So.2d 1078 |
| Parties | Change H. OH v. ALLSTATE INSURANCE COMPANY. CA 0416. |
| Court | Court of Appeal of Louisiana — District of US |
Raymond C. Vinet, Sr., Baton Rouge, for plaintiff-appellant Change H. oh.
Stephen Wilson, Baton Rouge, for defendant-appellee Allstate Ins. Co.
Before COVINGTON, LANIER and ALFORD, JJ.
This is a suit for damages in tort arising out of an automobile accident. The jury in the trial court rendered a general verdict in favor of the defendant. The trial judge rendered a judgment in accordance with the jury's verdict. This devolutive appeal followed.
On July 31, 1980, at approximately 4:20 P.M., Chang Oh 1 was operating a 1972 Mercury automobile owned by him in a southerly direction in the middle lane of Interstate 110 (a three lane highway) in the Parish of East Baton Rouge, Louisiana. At the same time and place, Randall I. Mayes was operating a 1976 Pontiac automobile owned by him in a southerly direction on Interstate 110 behind Chang Oh. Mayes and his vehicle were insured by Allstate Insurance Company (Allstate). The traffic on the interstate was heavy and it was raining. A rear end collision occurred between the Mayes vehicle and the Oh vehicle. Oh filed suit against Allstate seeking recovery for property damage and bodily injury caused by the accident.
Oh contends that the trial judge gave an erroneous and confusing jury instruction concerning the applicability of La.R.S. 32:71 (driving on the right side of the road) to the facts of this case.
A review of the record shows that there was a hearing out of the presence of the jury between the court and counsel to discuss the proposed jury charges prior to the time that they were given. No objections to the jury charges were entered at that time. Thereafter, the judge gave his charges to the jury. After the charges were given, counsel for Oh again indicated that he had no objections to the charges.
Since the appellant did not object to the jury charges in the trial court, he cannot now assign as error the giving or the failure to give an instruction in this court. La.C.C.P. art. 1793; Ray v. Ameri-Care Hospital, 400 So.2d 1127 (La.App. 1st Cir.1981), writ denied 404 So.2d 277 (La.1981); Helaire v. Liberty Mutual Insurance Company, 397 So.2d 8 (La.App. 3rd Cir.1981), writ denied 401 So.2d 975 (La.1981). CONTRA: Dixie Life Insurance Company v. Pacific Mutual Life Insurance Company, 416 So.2d 139 (La.App. 4th Cir.1982).
Oh contends that the trial judge commented on the evidence in the presence of the jury and thus committed reversible error.
On direct examination, Oh testified that he was on his way home driving southbound on Interstate 110 in the middle lane at a speed of between 40 and 45 miles per hour; as he approached North 2nd Street, he encountered a slow moving vehicle in front of him; he followed the slow moving vehicle at a speed of approximately 20-30 miles per hour; he couldn't change lanes because of traffic on either side of him; he turned his flashing lights on; and he was struck from behind by another vehicle. During cross-examination, counsel for Allstate attempted to impeach the testimony of Oh by showing that he made a statement to the investigating officer that he was driving 10 miles an hour at the time of the accident because of hard rain. During the impeachment attempt by counsel for Allstate, the court, after objection by counsel for Oh, instructed the witness, the attorneys and the jury on the law applicable to impeachment by a prior contradictory statement. La.R.S. 15:493. There was no objection to this instruction by any of the parties. During the course of the subsequent cross-examination, Oh did not deny making the contradictory statement. Thereafter, counsel for Allstate attempted to ask additional questions of Oh concerning the giving of the statement. Counsel for Oh objected. This objection was sustained by the trial judge. During the course of this dialogue, counsel for Allstate indicated that: "I'm trying to impeach this man's testimony." The court responded that: "You've done that." The court thereafter indicated that since Oh admitted making the statement, that counsel for Allstate could not go over that testimony again. Thereafter, the trial judge retired the jury and made additional comments to the attorneys concerning the law. During this entire time, no objection was made by counsel for Oh to either the statement by the court or the ruling of the court (the court sustained the objection of counsel for Oh).
Failure to object to an error in a trial court at the time it is made constitutes a waiver of the right to complain of the error on appeal. Temple v. Liberty Mutual Ins. Co., 330 So.2d 891 (La.1976); ...
To continue reading
Request your trial
- Ellis v. Georgia-Pacific Corp.
-
Ketcher v. Illinois Central Gulf R. Co.
...her brief, this court will consider those issues abandoned by her and will not review them in this appeal. Oh v. Allstate Insurance Company, 428 So.2d 1078 (La.App. 1st Cir.1983); Harrison v. South Central Bell Telephone Company, 390 So.2d 219 (La.App. 3rd Cir.1980), writ denied, 396 So.2d ......
-
Calhoun v. Federated Rural Elec. Ins. Co.
...of an opinion on the evidence provided that they are not unfair or prejudicial to the party complaining. Oh v. Allstate Insurance Co. 428 So.2d 1078 (La.App. 1st Cir.1983) Additionally, the trial judge has the responsibility to avoid confusing the jury and the right to use whatever semantic......
-
Brown v. Morgan
...his right to complain about it on this appeal. Temple v. Liberty Mutual Ins. Co., 330 So.2d 891 (La.1976); Oh v. Allstate Insurance Company, 428 So.2d 1078 (La.App. 1st Cir.1983). The owner of a vehicle which is a total loss may recover as damages the cost of renting a substitute vehicle bu......