Badeaux v. Jim Walter Corp. ( 1987 )

KLIEBERT, Judge,

concurring.

Although not necessarily for the reasons stated by the majority writer, I agree the plaintiff has no cause of action in tort. Additionally, I believe he should be given the opportunity to have his day in court on the compensation claim were it properly pled. However, I agree with the trial court’s conclusion the allegations of the original and the amended petitions were not sufficient to state a cause of action for compensation benefits. Nevertheless, under the provisions of Code of Civil Procedure Article 934, although we sustained the trial judge’s dismissal of the compensation claim, we would have to amend the trial judge’s ruling to give the plaintiff time to amend his petition to properly allege the claim in compensation.

Therefore, in practical effect, whether we uphold the trial judge and give the plaintiff time to amend, as I believe should be done, or reverse the trial judge’s dismissal of the compensation action as the majority writer has done, the ultimate results would be the same; i.e., the plaintiff would have his day in court. Accordingly, out of judicial expediency, I concur rather than dissent.