Comeaux v. Southcoast Corporation

In an application for rehearing plaintiff suggests that, even if we adhere to the view that there is no liability ex delicto, we should nevertheless render judgment in compensation in favor of plaintiff since, although there is no alternative prayer for such relief in the petition, the record contains proof — so plaintiff states — which warrants such recovery, and since there is in the petition a prayer "for all general and equitable relief."

A further examination of the record convinces us that there is not contained therein proof sufficient to warrant a recovery in compensation, but we believe that the compensation laws of this state, Act No. 20 of 1914, as amended, do vest in us discretion to remand a case in such situation to the end that plaintiff may be given opportunity to amend, if the facts justify. We did this in Crews v. Levitan Smart Shops, 171 So. 608, 611, in a situation which we believe identical with that now under consideration and in which we said: "We have concluded to remand the case to permit amendment of the pleadings and proof appropriate to an action in compensation."

For the reasons assigned, our original decree is amended to the extent that this matter is remanded to the civil district court for the parish of Orleans for further proceedings according to law and not inconsistent with the views herein expressed. To defendant-appellant there is reserved the right to apply for rehearing. Costs of appeal to be borne by plaintiff; other costs to await final decree.

Original decree amended; case remanded.