Magee v. Jefferson Rental
| Decision Date | 11 January 1983 |
| Docket Number | J-R,No. 5-330,5-330 |
| Citation | 434 So.2d 421 |
| Parties | Edward MAGEE v. JEFFERSON RENTAL,Equipment Corporation, Desa Industries and Best Construction Equipment Company. |
| Court | Court of Appeal of Louisiana — District of US |
Carl J. Schumacher, Schumacher Law Corp., Ltd., New Orleans, for Edward Magee, plaintiff-appellee.
Russell M. Cornelius, Norman & Norman, New Orleans, for Desa Industries, Inc., defendant-appellant.
Charles W. Schmidt, III, Christovich & Kearney, New Orleans, for Industrial Indem. Corp., intervenor-appellee.
Before BOUTALL, KLIEBERT and DUFRESNE, JJ.
Defendant-appellant Desa Industries appeals a judgment against it in the sum of $309,174.26, in favor of plaintiff-appellee Edward Magee, a 42 year old manual laborer. For the reasons that follow we vacate the December 1, 1981 judgment from which Desa appeals, and furthermore we reinstate a previous judgment of January 13, 1981 as the final judgment in this case.
Plaintiff-appellee, Edward Magee was seriously injured when on January 17, 1974 the blade of a concrete saw which he was operating shattered and a piece struck him in the forehead, penetrating the right frontal lobe of his brain. Six grams of brain tissue had to be excised with the blade fragment. One doctor at trial estimated that due to scarring and atrophy of the injured tissue Edward Magee has actually suffered a loss of approximately 300 grams of frontal lobe tissue. In addition, since the accident appellee has suffered from grand mal epilepsy and has had loss of memory and trouble controlling his emotions.
Magee sued appellant Desa Industries, the manufacturer of the saw, as well as Edmar Abrasive, the manufacturer of the saw blade, Bodine Aluminum, the manufacturer of the blade guard, and J.R. Equipment Corporation, which rented the saw to Edward Magee's employer.
Prior to the first trial, held on September 15-17 and October 23 and 24, 1980, plaintiff settled with Edmar, Bodine, and J.R. Equipment Corporation, leaving Desa Industries as the sole remaining defendant. At the conclusion of the trial, the court found in favor of defendant Desa Industries. Shortly after the signing of the judgment, January 13, 1981, and apparently at the suggestion of the trial judge, plaintiff moved for and was granted a new trial. At the close of the second trial the court held for plaintiff Edward Magee in the amount of $309,174.26, with some $24,000.00 to be reimbursed to the worker's compensation carrier. From this judgment against it Desa Industries has appealed.
Appellant (hereinafter referred to as Desa) specifies four errors for our review, to wit:
1. The trial court erred by granting a new trial and failing to recognize that it had no jurisdiction to substantially change its previous judgment rendered.
2. The trial court erred in its ruling that the plaintiff carried his burden of proof, thereby holding Desa Industries liable as a manufacturer.
3. The trial court erred in awarding plaintiff damages for total loss of future earning capacity.
4. The trial court erred in failing to reduce the judgment by 75% due to the plaintiff's settlement immediately prior to trial with three of his alleged joint tortfeasors.
It is not necessary for this court to reach the substantive issues regarding Desa's liability because the record clearly indicates that the judgment from which Desa appeals is an absolute nullity. This is so because plaintiff-appellee's motion for new trial was filed untimely, with the result that the district court had no jurisdiction to rehear the case.
The timetable of events in this case was as follows:
Sept. 15-17 &
Oct. 24, 25, 1980 Trial
January 13, 1981 Judgment signed
January 13, 1981 Notice of signing of
judgment mailed
January 23, 1981 Motion for new trial
filed
June 15, 1981 Second trial
Dec. 1, 1981 Second judgment
Louisiana Code of Civil Procedure Articles 1974 and 5059, and R.S . 1:55 are the applicable provisions governing delays for applying for new trial.
Article 1974 provides:
Article 5059 states:
"In computing a period of time allowed or prescribed by law or by order of court, the date of the act, event, or default after which the period begins to run is not to be included. The last day of the period is to be included, unless it is a legal holiday, in which event the period runs until the end of the next day which is not a legal holiday.
A half-holiday is considered as a legal holiday. A legal holiday is to be included in the computation of a period of time allowed or prescribed, except when:
(1) It is expressly excluded; (2) It would otherwise be the last day of the period; or
(3) The period is less than seven days."
La.R.S. 1:55 supplies the days which are to be excluded in this computation of time. For the purpose of our discussion subsections B(2) and E of the statute are pertinent:
"B. Legal holidays shall be observed by the departments of the state as follows:
* * *
* * *
(2) Dr. Martin Luther King, Jr.'s Birthday, Robert E. Lee Day, Washington's Birthday, National Memorial Day, Confederate Memorial Day, and Huey P. Long Day shall be observed only in such manner as the governor may proclaim, considering the pressure of the state's business, provided, however, that not more than two such legal holidays shall be proclaimed in any one year.
E. Each clerk of a district court shall close his office on the following days: New Year's Day, January 1; Washington's Birthday, the third Monday in February; Good Friday; Memorial Day, the last Monday in May; Fourth of July; Labor Day, the first Monday in September; All Saints' Day, November 1; Veterans' Day, November 11; Thanksgiving Day, the fourth Thursday of November; and Christmas Day. Whenever New Year's Day, Fourth of July, or Christmas Day falls on a Saturday, the preceding Friday shall be a holiday. Whenever New Year's Day, Fourth of July, or Christmas Day falls on a Sunday, the following Monday shall be a holiday. Only these enumerated holidays and all Saturdays and Sundays, shall be considered as legal holidays for the purposes of Article 5059 of the Louisiana Code of Civil Procedure."
With the guidelines of the above quoted articles and statute in mind, we now examine the dates involved in computing the delay for plaintiff's motion for new trial.
The judgment was signed and mailed January 13, 1981. Plaintiff then had seven days,...
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Ipse Dixit: It's About Time
...Day is a "Legal Holiday." Read West. But in spite of the very helpful language in West, you need to also read Magee v. Jefferson Rental, 434 So.2d 421 (La. App. 5 Cir. 1983), which held that "only the days listed in subsection (E) are to be counted as holidays for purposes of Code of Civil ......