Wise v. Villere Coal Co

Full title: WISE ET UX. v. VILLERE COAL CO., INC., ET AL

Court: Court of Appeal of Louisiana

Date published: Feb 1, 1943

11 So. 2d 657 (La. Ct. App. 1943)

Opinion

No. 17812.

February 1, 1943.

Appeal from Civil District Court, Parish of Orleans; Nat. W. Bond, Judge.

On application for a rehearing.

Application refused.

For prior opinion see 11 So.2d 419.

Edward Rightor and Henry G. Neyrey, Jr., both of New Orleans, for plaintiffs and appellees.

A.D. Danziger, of New Orleans, for defendant-appellee Toye Bros. Yellow Cab Co.

Porteous, Johnson Humphrey, of New Orleans, for defendants-appellants Villere Coal Co., Inc., and U.S. Casualty Co.

PER CURIAM.

In an application for a rehearing, Villere Coal Co. Inc. and United States Casualty Co. set forth that we were in error in stating in our original opinion that Mr. Wise had answered the appeal taken by them and that, therefore, it was incorrect for us to dismiss as of nonsuit the unproven items of damage claimed by him.

While it is true that, through oversight, it was stated in our opinion that both plaintiffs had answered the appeal praying for an increase of the judgment below (whereas, as a matter of fact only Mrs. Wise answered), it does not follow that the decree rendered by us reducing the the judgment of the lower court in Mr. Wise's favor from $395.08 to $206.73, and dismissing his claim for the difference between these amounts as of nonsuit is incorrect — for it is perfectly plain that our decree, insofar as it altered the judgment appealed from, was against Mr. Wise and not in his favor. On the other hand, in order to avoid any misunderstanding of our decree in the event Mr. Wise makes claim in the future for the amount for which he is nonsuited by this court, his claim can only be considered for the difference between the judgment of the district court and the judgment awarded him in this court, or the sum of $188.35, and not for the difference between the amount of $1,346.08 which is claimed by him in his petition and the amount of the judgment here. Whatever claim he may have had originally for any excess over $395.08 is forever lost due to his failure to complain of the judgment of the trial court.

The application for a rehearing is refused.