Thornton v. Moran

• Decision Date: 09 May 1977
• Docket Number: 10953,Nos. 10952,s. 10952
• Citation: Thornton v. Moran, 348 So.2d 79 (La. App. 1977)
• Parties: Frank L. THORNTON et al. v. Sharon MORAN et al. Sharon MORAN v. Frank L. THORNTON et al.
• Court: Court of Appeal of Louisiana

Page 79

348 So.2d 79

Frank L. THORNTON et al. v. Sharon MORAN et al.

Sharon MORAN v. Frank L. THORNTON et al.

Nos. 10952, 10953.

Court of Appeal of Louisiana, First Circuit.

May 9, 1977.

On Rehearing June 13, 1977.

On Limited Rehearing July 11, 1977.

Writ Refused Oct. 21, 1977.

Henry L. Klein, New Orleans, Hugh C. Uhalt, New Orleans, of counsel for defendant appellant, Sharon Moran.

David W. Robinson, Baton Rouge, of counsel for defendants appellants, G.E.I.C.O.

Robert F. Kennon, John S. White, Jr., Baton Rouge, of counsel for plaintiffs appellees, Frank Thornton, et al.

James E. Moore, Baton Rouge, of counsel for defendant appellee, Price A. K., Inc.

Dermot S. McGlinchey, Frederick Alexius, New Orleans, of counsel for defendant appellee, Chrysler Corp.

Paul H. Due and Richard J. Dodson, Baton Rouge, for Government Employees Ins. Co., appellant.

Before SARTAIN, COVINGTON and LOTTINGER, JJ.

PER CURIAM:

These consolidated cases were before this Court once before, Thornton v. Moran, 341 So.2d 1136 (La.App. 1st Cir. 1976) wherein this Court after reviewing thoroughly the record in a bifurcated trial ¹, wherein opposite results were reached, and this Court being ever mindful of the manifest error rule and the "reasonable conclusion of fact" rule as enunciated in Canter v. Koehring, 283 So.2d 716 (La.1973) and Dyson v. Gulf Modular Corporation, 338 So.2d 1385 (La.1976), we concluded that neither result was manifestly erroneous and affirmed.

Writs were applied for by the Thorntons as well as their insurer, Government Employees Insurance Company, and in a 4 to 3 decision were granted ex parte as follows:

"Judgment of court of appeal reversed; case remanded to court of appeal to resolve the difference in the factual findings between the jury and the judge in these consolidated cases and to render a single opinion based upon the record. La.Const. Art. 5, § 10(B); Rights of parties to reapply for writs in accordance with law after court of appeal renders decision in accordance with views herein expressed are reserved." ²

Therefore, after this Court has already concluded factually that there was such reasonable credible evidence in this record to support the jury's finding that Sharon Moran did not have the last clear chance to avoid the accident, and that there was also reasonable credible evidence to support the trial judge's finding that she did have such last clear chance, we are mandated "to resolve the differences in the factual findings between the jury and the judge * * * ."

Although this conclusion necessarily resulted in inconsistent results, the end was achieved by a consistent application of the review-functional rule as articulated by our Supreme Court. We have been unable to construe the Canter and Dyson edict as demanding a harmonization of the differences between the factual findings of two different triers of fact considering the same factual situation in order that a consistent result be attained, albeit at the sacrifice of consistency in the application of the function of the reviewing court.

For the sake of judicial economy, bifurcated trials are becoming much more common. As suits are consolidated to enact these economies, we find some issues tried by judge and some by jury in the same trial. As in the instant case, the identical parties were involved in each suit. Further, it is to be expected that opposite results can be reached in each suit. Certainly this has taken place where separate suits are filed arising out of the same accident, tried separately with different results, and after being appealed separately are affirmed. Even though we now see bifurcated trials in consolidated suits, with the recent Supreme Court decision of Jones v. City of Kenner, 338 So.2d 606 (La.1976), wherein the Supreme Court allows jury trials as against the insurer of the public body, and the judge trying all issues as to the public body, we certainly expect to see an increase in such trials. No guidance is enunciated by the Supreme Court as to the possibility of judge and jury reaching opposite results. What happens if the jury finds against the insurer and the judge finds in favor of the public body? Must the intermediate appellate courts resolve the differences? As to a possible solution see concurring opinion by Lottinger, J. in Duplantis v. United States Fidelity & Guaranty Corporation, 342 So.2d 1142 (La.App. 1st Cir. 1976).

Regardless, because of the granting of this writ in this case, this court is left with the distinct impression that irrespective of the manifest error rule, the reasonable conclusion of fact rule, and in particular Justice Tate, "Manifest Error" Further observation on appellate review of facts in Louisiana civil cases, 22 La.L.Rev. 605 (1962), none of these rules are applicable where opposite results are reached in bifurcated trials, and the intermediate appellate courts are mandated to resolve the differences regardless of the reasonableness of the conclusions of fact.

We now assume that the review-functional rule now requires us, as an intermediate appellate court, in bifurcated cases, to reconcile or resolve any differences in the factual findings between the trial judge and the jury by determining which witnesses are more credible, to ascertain which of the triers of fact accorded a more reasonable measurement to the evidence in reaching a decision, and to decide which of the said triers of fact gave a more reasonable evaluation and drew a more reasonable inference from the facts, all in order that we might harmonize the judgment(s). We also assume that the same requirement is now placed on the trial judge.

All of the facts surrounding the accident giving rise to this litigation, the testimony of the witnesses, and the conclusion of the trial judge are set forth in detail in our original opinion and they shall not be repeated here.

In applying the "more reasonable measurement" to the evidence, we conclude that the trial judge's application of the last clear chance doctrine must yield to the absence of fault conclusion inherent in the result reached by the jury. Our reason for selection is that both judge and jury found Mr. Thornton to be negligent. Neither found that the Thornton vehicle had stalled for the period of time...