Dye v. Schwegmann Giant Super Markets, Inc.

607 So. 2d 564 (1992)

Robert DYE, Robert Dye, III and Lowell Dye v. SCHWEGMANN GIANT SUPER MARKETS, INC.

No. 92-C-2079.

Supreme Court of Louisiana.

November 20, 1992.

Rehearing Denied December 21, 1992.

*565 PER CURIAM.

Judgment of the court of appeal, 599 So. 2d 412, is vacated and set aside. The jury instruction was an incorrect statement of the law under Harris v. Pizza Hut of Louisiana, Inc., 455 So. 2d 1364 (La.1984). Since the jury was erroneously instructed and this error probably contributed to the verdict, the verdict must be set aside on appeal. Picou v. Ferrara, 483 So. 2d 915 (La.1986); Smith v. Travelers Ins. Co., 430 So. 2d 55 (La.1983). Such a finding "prohibits the reviewing court's use of the manifest error rule when the jury's factual findings favorable to the prevailing party have been tainted." Picou, 483 So. 2d at 918. Accordingly, the court of appeal in the present case erred in applying the manifest error rule to the jury's finding. The case is remanded to the court of appeal to make an independent determination of the facts from the record without according any weight whatsoever to the factual findings of the erroneously instructed jury. Gonzales v. Xerox Corp., 320 So. 2d 163 (La. 1975).