Barbay v. Aetna Cas. & Sur. Co. , 457 So. 2d 1181 ( 1984 )

457 So. 2d 1181 (1984)

Katherine W. BARBAY
v.
AETNA CASUALTY & SURETY CO., G.K. Technologies Sperry Rail Service Division, a Subsidiary of Automation Industries, Sentry Insurance Company & Missouri Pacific Railroad Company.

No. 84-C-1722.

Supreme Court of Louisiana.

November 9, 1984.

Denied.

BLANCHE, J., would grant the writ.

LEMMON, Justice, would grant the writ.

When the jury is given an incorrect instruction, the appellate court must completely disregard the jury's verdict and either decide the case solely on the record or remand for a new trial. This rule is particularly applicable in this present case, since the incorrect instruction appears to be the only basis for imposing liability on relator.

I would remand the case to the Court of Appeal to decide on the record the percentage of fault, if any, attributable to relator, without regard to the quantification of fault by the erroneously instructed jury.