We granted writs in this case upon application of defendants to review a judgment of the First Circuit Court of Appeal, 307 So.2d 153 (La.App.1st Cir. 1974). The trial court, after a jury trial, had dismissed plaintiffs' suit. Plaintiff appealed seeking a reversal of the trial court judgment, and a favorable determination on the merits, by the Court of Appeal. Defendant, satisfied with the verdict, urged the Court of Appeal to affirm the trial court judgment. The Court of Appeal reversed and remanded to the trial court for a new trial, finding reversible error in the trial court's refusal to grant a requested special
Dawn Rene Gonzales, plaintiffs' four and one-half year old daughter, was killed on July 7, 1973, at Grand Isle, Louisiana, after she was struck by a car driven by defendant Juan G. Hernandez, an employee of Xerox Corporation. Employers Insurance of Wausau, a third defendant, carried the automobile liability insurance on the Xerox vehicle. The little girl was struck as she attempted to cross Louisiana Highway 1. Plaintiffs charged Hernandez with negligence proximately causing the child's death. Defendants denied that Hernandez was negligent and alternatively pleaded contributory negligence of plaintiffs, allegedly a lack of proper parental supervision.
At the trial, plaintiffs had requested that the judge give this special charge to the jury:
The trial judge refused to give the charge and did not incorporate its substance into his general charge. He did, however, give an instruction concerning a motorist's duty in the vicinity of small children, as follows:
The Court of Appeal decided that the instruction which the judge gave did not express the substance of the requested special charge and that the requested charge should have been given because it stated pertinent and applicable law. That legal principle, in practically the identical words, has been enunciated in Jackson v. Cook, 189 La. 860, 181 So. 195 (1938) and numerous subsequent opinions of our courts. See, for example, Bell v. Allstate Insurance Co., 260 So.2d 363 (La.App.4th Cir. 1972); Pea v. Smith, 224 So.2d 37 (La.App.1st Cir. 1969); Reynolds v. Transamerica Ins. Co., 221 So.2d 889 (La.App.1st Cir. 1969).
The Court of Appeal stated that the essential question of fact in this case is this:
We agree that this was the essential factual question. Therefore, in the trial of the case, there could hardly have been any more important legal principle for the consideration of the jury than that defendant's failure to see what he could have seen by the exercise of due diligence does not absolve him from liability. Indeed, this is the very principle of law which the jury was required to apply to whatever facts were established by the evidence. But the jury could not have applied that principle to the facts because it was not a part of the judge's charge to them. Since the jury
While the trial court remains the original forum for resolving factual and legal issues, the Louisiana Constitution expressly extends the jurisdiction of appellate courts in civil cases to the review of facts as well as law.
In addition to the costitutional authority, and consistent with it, there is a very practical consideration which encourages our appellate courts to exercise their jurisdiction
Substantial deviation from the rule that appellate tribunals with a complete record before them review facts and render dicisions has been infrequent. In Herbert v. Travelers Indemnity Co., 193 So.2d 330 (La.App.4th Cir. 1966), this Court refused to grant writs in a case in which, following an erroneous exclusion of evidence by the trial court, the Court of Appeal remanded for a new trial. The opinion was criticized in 41 Tul.L.Rev. 922, 925 (1967) where it was stated that:
More authoritative than Herbert v. Travelers, supra, however, was this Court's decision in Bienvenu v. Angelle, 254 La. 182, 233 So.2d 140 (1969). In that case, this Court itself remanded for retrial. The Court of Appeal had affirmed the trial court judgment; this Court reversed on the basis of an erroneous jury instruction and remanded to the trial court.
Accordingly, we affirm that portion of the Court of Appeal judgment which reversed the judgment of the trial court; we reverse that portion of the Court of Appeal judgment which remanded the case to the district court for a new trial; and, consistent with the views expressed herein, we remand this matter to the Court of Appeal for further consideration of the trial record and for decision on the merits.
Affirmed in part, reversed in part, and remanded to the Court of Appeal.
DIXON, J., dissents with reasons.
BARHAM, J., dies not participate.
DIXON, Justice (dissenting).
I respectfully dissent.
Both plaintiffs and defendants have urged this court to reverse the court of appeal and require the court of appeal to decide this damage suit on the record before
That new system effectively deprives a litigant of his statutory right to a trial by a properly instructed jury. Under the majority ruling, if the instructions to the jury are so erroneous that the jury cannot find the facts and decide the legal issues presented to it, the case is then taken by the court of appeal to find the facts and the law applicable. Until now, the courts of appeal, when the jury instructions, although imperfect, nevertheless adequately instructed the jury on the law applicable when taken as a whole, would review the evidence and affirm if the evidence supported the jury verdict. Bush v. St. Paul Fire and Marine Ins. Co., 264 So.2d 717 (La.App.1972). When the instructions were so erroneous, however, as to prevent a proper determination of facts and issues under the law, a new trial should be ordered. Bienvenu v. Angelle, 254 La. 182, 223 So.2d 140 (1969). It is questionable whether it is more economical for a court of appeal to review the record, find the facts and apply the law than for a civil jury on a new trial to review the record, find the facts and apply the law. (Testimony at the former trial can be used at the new trial. Code of Civil Procedure 1978; see Code of Practice 560.1, 563). Juries are much more expeditious than appellate judges.
A jury `cannot be dispensed with without the consent of the party at whose instance it was called.' Putnam & Norman v. Levee, 180 La. 101, 156 So. 189-190 (1934).