Dauzat v. Allstate Insurance Co. , 1971 La. App. LEXIS 6226 ( 1971 )

ON REMAND

FRUGÉ, Judge.

This is an appeal from a judgment by the trial court awarding penalties and attorney’s fees in a compensation case against Allstate Insurance Company, defendant insurer, and Pel State Oil Company, defendant employer, appellants herein.

On January 15, 1970, we rendered judgment holding that only the insurer and not the employer was subject to penalties and attorney’s fees, and accordingly amended the trial court judgment by affirming the judgment as against the insurer, Allstate Insurance Company, but dismissing the suit as to the employer, Pel State Oil Company.

The above judgment was rendered by a panel of five judges of this court, in a 3 to 2 decision. 230 So.2d 768. Rehearing was denied February 4, 1970. Thereafter, the Supreme Court granted a writ of certi-orari. 255 La. 790, 232 So.2d 516.

The Supreme Court decided that since we were a court of six judges, it took four judges to decide en banc cases, and remanded the case back to us for a new hearing; in doing so, declaring our holding unconstitutional for lack of four votes. 242 So.2d 539.

On March 2, 1971, the case was tried with a full panel of our court, plus the addition of Judge Everett to break a possible tie, and thus comply with the mandate of the Supreme Court by securing a minimum of four votes, one way or the other.

On this occasion, after a thorough study of the case, and after full argument by counsel, we concluded that we were correct in our original judgment of January 15, 1970, by a 4 to 3 vote.

Therefore, for the reasons herein assigned, as well as for the reasons assigned in our original judgment of January 15, 1970, we reinstate the judgment of January 15, 1970. Accordingly, the judgment of the district court is affirmed, subject to the dismissal of the suit against Pel State Oil Company. All costs to be borne by Allstate Insurance Company.

Amended and affirmed as amended.

HOOD, J., dissents for the reasons assigned by him when the case was before this court originally. See Dauzat v. Allstate Ins. Co., 230 So.2d 768, 772.

SAVOY and CULPEPPER, JJ„ dissent for the reasons assigned by HOOD, J.

Rehearing denied.

SAVOY, HOOD and CULPEPPER, JJ„ are of the opinion that a rehearing should be granted.