# Sonnier v. Liberty Mutual Insurance Company

> Supreme Court of Louisiana · May 4, 1971 · 258 La. 813

URL: https://www.frixlaw.com/law-library/cases/9670721

## Case

- **Full name:** Francis L. SONNIER v. LIBERTY MUTUAL INSURANCE COMPANY Et Al.
- **Court:** Supreme Court of Louisiana
- **Decided:** May 4, 1971
- **Citations:** 258 La. 813; 248 So. 2d 299; 1971 La. LEXIS 4382
- **Precedential status:** Published
- **Opinion:** Dissent by Summers
- **Judges:** Dixon, Summers, Barham
- **Cited by:** 41 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9670721

## Opinion text

SUMMERS, Justice
(dissenting).
Plaintiff Francis L. Sonnier instituted this suit in tort claiming reparation for personal injuries and property damage he incurred in an automobile collision. A trial by jury resulted in a verdict rejecting plaintiff’s demands, and judgment was rendered accordingly.
Plaintiff then timely applied for a new trial, alleging in his motion: The judgment was “contrary to the law and the evidence”; it was error for the court to refuse requested instructions; the jury failed to carry out the instructions it received as to the law; on voir dire examination some of the jurors who were accepted for service failed to make an adequate, fair and full disclosure, which denied plaintiff the intelligent exercise of his right to challenge, thereby affecting the composition of the jury; and the court curtailed argument during counsel’s summation to the jury. The motion concluded with a prayer for a rule nisi against defendants to show cause why a new trial should not be granted.
Finding that the motion presented “nothing new for consideration” and that a contradictory hearing was not warranted, the application was summarily denied ex parte by the trial judge.
From this action plaintiff applied for remedial writs to the Third Circuit, complaining that the ex parte denial of a contradictory hearing on his motion for a new trial was contrary to Articles 1971, 1972 and 1976 of the Code of Civil Procedure 1 and a denial without a hearing deprived him of constitutional due process. Writs were granted and, after consideration, recalled. The Third Circuit was of the opinion that under the cited articles of the Code of Civil Procedure a contradictory hearing was required to grant a new trial, but the prac *827 tice approved in Courtin v. Browne, 151 La. 741 , 92 So. 320 (1922), permitting ex parte.denial of motions for new trials was unaffected by enactment of the Code. 237 So.2d 699 . We granted writs upon plaintiff’s application. 256 La. 781 , 239 So.2d 169 .
The principal question: May a trial court deny ex parte a motion for new trial ?
Reference to Article 1971, of the Code of Civil Procedure discloses that a new trial may be granted, “upon contradictory motion of -any party.” Again, under the terms of Article 1972 a new trial shall be granted, “upon contradictory motion” in certain cases. Notice of the motion for a new trial and of the time and place assigned for hearing thereon, under Article 1976, must be served upon the opposing party. See Footnote 1, supra. .
Article 1971 is general in its terms and applies to all new trial motions. The Article declares that a new trial may be granted “upon contradictory motion of any party” or “by the court on its own motion.” Thus two modes of granting new trials are prescribed — one by contradictory motion and the other by the court on its own motion. In like manner, when Article 1972 refers to the peremptory grounds for a new trial, a contradictory motion is mentioned and therefore such- a motion cannot 'be granted ex parte.
But the argument is made that these Articles do not apply to a situation where a new trial is denied — the contention being that since the Code does not explicitly refer to the denials of motions for new trials, denials may be disposed of ex parte. This argument is based upon the ruling in Courtin v. Browne, 151 La. 741 , 92 So. 320 (1922), which held an application for new trial involving a child custody proceeding was properly denied ex parte by the trial judge. Another premise of this argument is that if the redactors of the Code intended to change the procedure approved in Courtin v. Browne it would have been easy to say so.
Courtin v. Browne was decided at a time when Articles 561, 562 and 563 of the Code of Practice 2 were in effect. Under no *829 situation at that time was a contradictory hearing required on a motion for a new trial — either to grant of deny such a motion. Motions requiring production of evidence could be decided on affidavits made part of the motion. Article 563 of the Code of Practice specifically directed that the court “shall decide summarily” on such applications. This factor, coupled with the later enactment of the Code of Civil Procedure which makes repeated reference to contradictory hearings, convinces me that Courtin v. Browne can no longer be accepted as authoritative and that a change was not only intended but clearly spelled out.
And it is begging the question to argue that if the Code of Civil Procedure intended to overrule Courtin v. Browne it would have been easy to say so. I am not aware that every change in a procedural rule which occurred as a result of the enactment .of the Code of Civil Procedure carried with it a declaration that the cases establishing the superseded rule were overruled, although this practice is often followed. La.Code Civ.Proc. art. 5052. A change can therefore be evident without a statement to that effect.
Added to,the strong import-of Articles 1971 and 1972 that a contradictory hearing is required, Article 1976 requires “Notice of the motion for new trial and of the time and place assigned for hearing thereon.” The implication from this latter Article is unmistakable that it applies to all motions for new trials by the parties and that a hearing is contemplated whether the motion is to be granted or denied.
Again, in prescribing the procedure for disposing of motions generally,-Article 963 of the Code of Civil Procedure declares: .
If the order applied for by written motion is one to which mover is clearly entitled without supporting proof, the court may grant the order ex parte and without hearing the adverse party.
If the order applied for by written mo-lion is one to which the mover is not clearly entitled, or which requires supporting proof, the motion shall be served on and tried contradictorily with the adverse party.
The rule to show cause is a contradictory motion.
Although plaintiff seeks to invoke this article to support his position that a contradictory hearing should have been held on his motion for a new trial because the order applied for was one to which mover was not “clearly entitled” and the motion “requires supporting proof,” the contention is'unac *831 ceptable. It should be noted that Article 963 is a general article prescribing the procedure applicable to motions generally. It does not purport to supersede specific articles dealing with particular situations. The Articles relating to motions for new trial are, on the other hand, particular in nature relating to new trials only.
Furthermore, Articles 963 and Articles 1971, 1972 and 1976 are in part irreconcilable, compelling a reasoned consideration of this conflict to accept the particular over the general provisions. This means we should decide that Ax'ticles 1971, 1972 and 1976 prevail in the fact situation presented by this case. The conflict in the Articles occurs between the first paragraph of Article 963 which permits the Court to grant the motion ex parte when the motion is one to which mover is clearly entitled without supporting proof; whereas, Article 1971 makes it equally clear that a new trial may only be granted after a contradictory motion and Article 1976 requires a hearing on all new trial motions.
The second paragraph of Article 963 would also seem to sxxpport plaintiff’s claim that a contradictory hearing was required, for in our view mover was not clearly entitled to the new trial and the allegations of the motion reqxxire the reception of evidence to support the motion — two conditions txnder which a contradictory hearing is mandatory by the terms of Article 963. But it is appropriate to repeat here that I feel that, insofar as motions for new trials are concerned, the New Trial Articles (1971 et seq.) under Section 2 of Chapter 4 must first be applied before invoking the general provisions of Article 963. Only when the new trial articles are silent on the problem may resort be had to Article 963 for aid in the solution.
There is, however, one provision of Article 963 which is in harmony with Articles 1971, 1972 and 1976. It is the recognition that “The rule to show cause is a contradictory motion.” This reinforces my view that a rule to show cause, as in this case, is properly disposed of by contradictory hearing. Additional support for this positon is found in the Comments to Article 1976 of the Code in this statement: “The practice has been to apply for new trials by rule, the return date for which is fixed by the Court.”
Although vague and indefinite, the motion under consideration appears to be based upon allegations that plaintiff has discovered, since the trial, evidence important to the cause in that the jury has behaved improperly so that impartial jxxstice has not been done, thus:
The jury failed to carry out the instructions as to the law given to the jury by the court.
and
On voir dire examination some of the jurors selected for jury service in con *833 nection with the trial of this matter failed to make an adequate, fair and full disclosure on voir dire examination, which denied to your movant the intelligent exercise of his peremptory challenges and of his right to challenge for-cause and resulted in the composition of a jury that otherwise would not have resulted absent such failure. (Articles 3 and 4 of Motion for New Trial)
These allegations necessarily fall within the contemplation of paragraphs (2) and (3) of Article 1972 3 providing that a new trial shall be granted “where the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial” and “in jury cases as provided in Article 1814.” Article 1814 requires that a new trial be granted “if it be proved that the jury was bribed or behaved improperly so that impartial justice has not been done.”
It is a requirement of Article 1975 that “when the motion is based on Article 1972 (2) and (3), the allegations of fact therein shall be verified by the affidavit of the applicant.” Here the applicant has not verified the allegations of the motion, and he should not be permitted to proceed unless this requirement is satisfied, failing in which his motion should be denied.
i Plaintiff’s allegations are moreover so vague and indefinite that they do not properly present a valid basis for a new trial. Plaintiff’s first allegation that the judgment is contrary to the law and the evidence is a conclusion which presents nothing for review unless the particular grounds upon which the allegation rests are stated. And the second allegation that the jury failed to carry out the instructions as to the law given to the jury by the court is likewise an insufficient allegation to warrant a new trial without particularizing the instructions involved and the manner in which the jury failed to carry them out. Similar comments are appropriate to the other allegations of the motion.
Finally, a motion to dismiss filed by defendants set forth that the trial court, after hearing, has recalled the order granting plaintiff the right to proceed in forma pauperis and that the unpaid cost owed by plaintiff amounts to $2,972.38. Plaintiff has made no reply to this charge.
In view of all circumstances mentioned herein, I would remand this matter to the trial court with instructions that a hearing be conducted on plaintiff’s motion for a new trial. When the hearing is fixed, however, it should not proceed until all accrued and advance costs have been paid. Should accrued and advance costs be paid, plaintiff should then be required to particu *835 larize the allegations of his motion for a new trial and verify the allegations as required by law, after which the hearing could proceed, all of which should be proceeded with expeditiously and without undue delay. Meanwhile, the right of the Clerk of Court and other 'interested parties to go forward in appropriate ancillary proceedings with the collection of unpaid costs should not be impaired. La.Code Civ.P. art. 2164.
I respectfully dissent.
. La.Code Civ.P. arts. 1971, 1972 & 1976.
Art. 1911:
“A new trial may be granted, upon contradictory motion of any party or by the court on its own motion, to all or any of the parties and on all or part of the issues, or for reargument only. If a new trial is granted as to less than all parties or issues, the judgment may be held in abeyance as to all parties and issues.”
Art. 1912:
“A new trial shall be granted, upon contradictory motion of any party, in the following cases:
(1) Where the judgment appears clearly contrary to the law and the evidence;
(2) Where the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or-during the trial; or
(3) In jury cases, as provided in Article 1814.”
Art. 1916:
“Notice of the motion for new trial and of the time and jdace assigned for hearing thereon must be served upon the opposing party as provided by Article 1314.”
. .Arts. 5S1, 562 and 563:
Art. 561:
“If a new trial be prayed for on the ground of new evidence having been discovered, or on account of bribery or misconduct of the jury, or of the adverse party, the party praying for the new trial must, .on filing his motion, annex to the same his affidavit of the facts alleged in proof of the bribery, or misconduct of the jury, or bis . having dis=covered the evidence material to his suit since the judgment was rendered, although he had used every effort and diligence in his power to procure the necessary testimony.
“This affidavit must be filed in the records, in order that the adverse party may have communication of the same.”
Art. 562:
“No affidavit is necessary w-hen a new trial is prayed for on the ground of the judgment being contrary to law and the evidence.”
*829
Art. 56S:
“The court shall decide summarily on such- applications. If a new trial be granted,: the cause, shall again be set on tlié ‘ docket; and on the new trial the parties shall not bo precluded from producing new proofs, on the ground of the same not having been offered on- the first trial.
. Note 1, supra.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9670721. Public record. Not legal advice.