Supreme Court of Louisiana, 1983

Wilkinson v. State ex rel. Department of Transportation & Development

Supreme Court of Louisiana · Decided October 17, 1983

439 So. 2d 388; 1983 La. LEXIS 11798 (Southern Reporter, Second Series)

Cases that cite this one

4 later published cases cite this decision.

Gadman v. STATE, DEPT. OF TRANSP. & DEV. (La. Ct. App. 1986)
Gadman v. State ex rel. Department of Transportation & Development (La. Ct. App. 1986)
Ryan v. State (La. Ct. App. 1985)
Wilkinson v. State ex rel. Department of Transportation & Development (La. Ct. App. 1983)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

PER CURIAM.

The writ application represents and the Court of Appeal opinion, 434 So.2d 1155, confirms that both the trial court and the Court of Appeal declined to consider evidence as to contributory negligence, which was alleged as a defense but not particularized. Relator further represents that both defendant and plaintiff proffered considerable evidence on this issue.

*389-393Since it appears that the proffered evidence raises a serious question as to “the merits of the action”, the trial court erred in failing to allow the pleadings to be amended and consider the evidence, after offering the objecting party the opportunity to move for a continuance if needed. See LSA-C.C.P. art. 1154.

Accordingly, the judgment of the Court of Appeal is vacated and set aside, and the case is remanded to the Court of Appeal to decide the case on-the basis of the entire record, including the proffered evidence. Of course, if, it appears that justice requires, the Court of Appeal may remand the matter to the trial court for the taking of additional evidence.

Accordingly, the writ is granted with the foregoing order.

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