Jones v. LeDay
| Decision Date | 17 July 1979 |
| Docket Number | No. 7188,7188 |
| Citation | 373 So.2d 787 |
| Parties | Rose Mae JONES, Plaintiff-Appellee, v. Lee Joseph LeDAY, Defendant-Appellant. |
| Court | Court of Appeal of Louisiana — District of US |
Fontenot & Mitchell, Clyde Fontenot, Ville Platte, for defendant-appellant.
Raymond J. LeJeune, Mamou, for plaintiff-appellee.
Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
Defendant-appellant, Lee Joseph LeDay, moves to remand this suit to the trial court in order to enable him to proceed with the introduction of new evidence in the court below. The motion is unopposed.
Plaintiff, Rose Mae Jones, filed the instant suit against the defendant to recover damages for her injuries which occurred as a result of an accident on September 20, 1978, when she was struck by the defendant, an employee of Community Rice Mill, Inc. A default judgment was rendered in this matter on January 11, 1979 in favor of the plaintiff, awarding her a total recovery of NINE THOUSAND THREE HUNDRED SIXTY-NINE & NO/100 ($9,369.00) DOLLARS, including an award for her loss of wages from the date of the accident to January 9, 1979, totaling ONE THOUSAND NINE HUNDRED TWENTY & NO/100 ($1,920.00) DOLLARS. Thereafter, defendant filed a motion for a new trial on January 22, 1979, which motion was denied on February 16, 1979. The plaintiff was granted a suspensive appeal to this court on March 20, 1979.
On June 6, 1979, defendant-appellant filed this motion to remand contending that certain new evidence presented in a corresponding proceeding entitled him to a rehearing in the trial court. The record in this case indicates that in addition to the instant suit, plaintiff also sought to recover workman's compensation benefits from her employer, Community Rice Mill, Inc., as a result of her accident. This action was also brought in the Thirteenth Judicial District Court before the Hon. Joseph E. Coreil and judgment was rendered on May 17, 1979, awarding plaintiff workmen's compensation totaling THREE THOUSAND ONE HUNDRED THIRTY TWO & 78/100 ($3,132.78) DOLLARS. In written reasons for judgment assigned on April 30, 1979, Judge Coreil found that the plaintiff was disabled from September 20, 1978 to November 6, 1978, and thus based the compensation award upon this period of disability. Apparently, defendant-appellant herein contends that this finding is inconsistent with the trial judge's determination in the instant action and that accordingly, he is entitled to introduce this evidence before the trial court in the tort action.
The authority of an appellate court to remand an action for proper consideration to the trial court is conferred in part by LSA-C.C.P. Art. 2164 which states:
"The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal . . ."
Under the judicial interpretations given to this article, this court is empowered to remand a case for the consideration of new evidence. Roark v. May, 367 So.2d 397 (La.App. 3rd Cir. 1978), writ. ref., 368 So.2d 123 (La.1979); McKinney v. Levy, 212 So.2d 279 (La.App. 3rd Cir. 1968).
However, although an appellate court is empowered to remand a case, either for a new trial, or for the introduction of additional evidence, such a procedure is sparingly exercised. Herbert v. Traveler's Indemnity Co., 255 La. 645, 232 So.2d 463 (1970); Guilott v. Guilott, 326 So.2d 551 (La.App. 3rd Cir. 1976), writ den., 330 So.2d 316 (La.1976). Although a court should always remand a case whenever the nature and extent of the proceedings dictate such a course, nevertheless, whether or not any particular case should be remanded is a matter which is vested largely within that court's discretion and such power to remand should be exercised only according to the peculiar circumstances presented in each individual case. Turpin v. Turpin, 175 So.2d 357 (La.App. 2nd Cir. 1965); Brannon v. Zurich General Accident & Liability Co., 59 So.2d 836 (La.App.Orl.1952).
In this instance, defendant wishes this court to remand this case to the...
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