HERBERT v. TRAVELERS INDEMNITY COMPANY

No. 3471.

221 So.2d 619 (1969)

Howard HERBERT v. TRAVELERS INDEMNITY COMPANY et al.

Court of Appeal of Louisiana, Fourth Circuit.

Rehearing Denied May 5, 1969.

Writ Granted June 13, 1969.


Attorney(s) appearing for the Case

Krieger, Krieger & Tracy, I. Jay Krieger, Mildred L. Krieger and Robert K. Tracy, New Orleans, for plaintiff-appellee.

Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Ernest A. Carrere, Jr., and Ashton R. Hardy, New Orleans, for defendants-appellants.

Adams & Reese, Henry B. Alsobrook, Jr., New Orleans, for Louisiana State Medical Society, appearing as amicus curiae.

Before YARRUT, SAMUEL and CHASEZ, JJ.


SAMUEL, Judge.

This is a suit resulting from an alleged negligent injury incurred in the administration of a spinal anesthetic. In addition to special damages, plaintiff seeks damages for permanent pain, suffering and disability particularly of the left leg. A prior appeal was taken by the plaintiff from a judgment, based on a jury verdict, which rejected his demands (Herbert v. Travelers Indemnity Company, La.App., 193 So.2d 330). In that appeal the matter was remanded primarily for the purpose of permitting certain evidence to go to the jury. Following remand plaintiff withdrew his request for a trial by jury and the second trial was heard by the district judge alone. After that trial judgment was rendered in favor of the plaintiff and against three of the defendants, Dr. Byron J. Casey, Anesthesia Associates and Travelers Indemnity Company, in solido, in the sum of $75,000. Those three defendants have appealed.

In this court appellants filed a petition alternatively alleging the matter should be remanded for further evidence if this court does not reverse on the record as it now stands. The alleged basis for this request is that during the first and second trials plaintiff and some of his witnesses testified he constantly walked with a limp or with great difficulty and since the second trial appellants have obtained motion pictures of plaintiff proving he is under no disability from the standpoint of walking.

During argument appellants sought to have the motion pictures in question shown to the court and plaintiff, who filed an answer to the petition for remand in which he vigorously opposes the request, objected to such a showing. We maintained the objection and the pictures were not shown.

As we are convinced of appellants' sincere belief that the pictures in question will materially affect the question of quantum and perhaps, as they argue, also reflect on the credibility of the witnesses involved, we believe the ends of justice will be better served by remanding the case to the trial court so that pertinent evidence relative to plaintiff's injury and disability may be introduced by both the appellants and the plaintiff.

Accordingly, it is ordered that the judgment appealed from be set aside and the matter be remanded to the trial court for the limited purpose of receiving additional evidence, to be submitted by both appellants and plaintiff, respecting plaintiff's injury and disability in order that the trial court may adjudicate the matter on the basis of the evidence heretofore taken and also upon whatever new evidence is introduced. Costs of this appeal to be paid by the appellants; all other costs to await a final determination.

Set aside and remanded.


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