Sylvester v. Liberty Mutual Insurance Company

Full title: L. Wayne SYLVESTER, et ux., Plaintiffs-Appellees, v. LIBERTY MUTUAL…

Court: Court of Appeal of Louisiana, Third Circuit

Date published: May 13, 1971

245 So. 2d 497 (La. Ct. App. 1971)

Opinion

No. 2899.

March 10, 1971. Rehearing Denied March 31, 1971. Writ Refused May 13, 1971.

APPEAL FROM 13TH JUDICIAL DISTRICT COURT, PARISH OF EVANGELINE, JOE R. VIDRINE, J.

Davidson, Meaux, Onebane Donohoe by J. J. Davidson, Lafayette, for defendant-appellant.

Guillory, Guillory Guillory by Robert K. Guillory, Eunice, for plaintiffs-appellees.

Before FRUGÉ, SAVOY, HOOD, CULPEPPER, MILLER, DOMENGEAUX and EVERETT, JJ.

SAVOY, Judge.

This case is before this Court for the second time.

In our original decision of May 14, 1970, 237 So.2d 431, this Court amended the judgment of the district court by reducing the award made to the parents of John Wayne Sylvester and Elizabeth Claire Sylvester for the deaths of their minor children from the sum of $30,000.00 to each parent for each child to the sum of $20,000.00 to each parent for each child. Plaintiffs applied to the Louisiana Supreme Court for a writ of certiorari. That court granted plaintiffs' request, 256 La. 764, 238 So.2d 748. The case was argued before the Supreme Court on December 14, 1970. That court rendered a decision setting aside our decision of May 14, 1970, and remanded the case to this Court for further hearing.

The basis for the remand was that this Court, sitting en banc, required four votes to render a decision; however, five judges sat on the case and only three judges voted to amend the judgment. Therefore, said judgment was null.

After reading the briefs of counsel and listening to their oral arguments, a majority of this Court adhered to its original decree of May 14, 1970.

For the reasons assigned in our original decree, judgment is hereby rendered amending the judgment of the district court by reducing the awards made to L. Wayne Sylvester and his wife, Barbara Sylvester, from $30,000.00 to the sum of $20,000.00 each for the deaths of each of their children, John Wayne Sylvester and Elizabeth Claire Sylvester; and as amended, is affirmed at appellant's costs.

Amended and affirmed.

MILLER, Judge (dissenting).

For the reasons assigned at 237 So.2d 431, I respectfully dissent.

FRUGÉ, J., joins in the dissent of MILLER, J., and adheres to the original dissent. Further he believes that on the hearing the case should be heard before the original panel of three since we are now operating on the panel basis.

Rehearing denied.

MILLER and FRUGÉ, JJ., vote for rehearing.