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

439 So. 2d 388 | La. | 1983

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.

Since 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.