Savoy v. Martiny Warehouse, Inc.

539 So. 2d 884, 1989 La. App. LEXIS 218, 1989 WL 11890
CourtLouisiana Court of Appeal
DecidedFebruary 16, 1989
DocketNo. 88-CA-1205
StatusPublished
Cited by3 cases

This text of 539 So. 2d 884 (Savoy v. Martiny Warehouse, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Savoy v. Martiny Warehouse, Inc., 539 So. 2d 884, 1989 La. App. LEXIS 218, 1989 WL 11890 (La. Ct. App. 1989).

Opinion

BARRY, Judge.

Martiny Warehouse, Inc. and its insurer, Hanover Insurance Company, appeal a personal injury judgment and the denial of their motion for a new trial or remittitur. They specify as error the excessiveness of plaintiff John Savoy’s $114,000 award and the jury’s failure to find him comparatively negligent.

On February 5, 1986 Savoy was employed as a truck driver by Steve Thompson Trucking Company and was making a [885]*885pick-up at Martiny Warehouse. When Savoy went down the stairs from the dock he injured his knee and had surgery which was paid by Thompson’s compensation carrier, Liberty Mutual Insurance Company. Liberty Mutual also paid for a subsequent knee surgery months later. Savoy sued Martiny Warehouse based on negligence and strict liability, for pain and suffering, medical expenses and loss of income. Savoy’s wife, Myra, and his children, Elicia, John and Asia Marie are co-plaintiffs based on loss of consortium. Hanover Insurance, Thompson’s insurer, was added as a defendant. Liberty Mutual intervened to recover its compensation payments and medical expenses which were stipulated at $10,115.72.

The jury unanimously agreed that there was a defective condition in Martiny Warehouse’s building which created an unreasonable risk'of harm and caused Savoy’s injuries. The jury unanimously concluded that Savoy was not negligent and Martiny Warehouse was totally at fault.

The jury awarded Savoy $114,000, Myra Savoy $10,000, Asia Marie Savoy $1,000, and John Savoy, II $2,000. Elicia Savoy, who was eighteen years old, was excluded. The judgment awarded $114,000 to Savoy and $10,115.72 to Liberty Mutual by preference. The awards for loss of consortium (on the second page of the jury interrogatories) were inadvertently left out of the judgment.

Subsequently a stipulation was filed in which all the parties agreed that the judgment should be amended to award John Savoy $114,000, Liberty Mutual $10,115.72, Myra Savoy $10,000, Asia Marie Savoy $1,000, and John Savoy II $2,000. The stipulation declares: “IT IS FURTHER STIPULATED that these changes are being added so that the judgment will reflect the jury verdict which was the intent of the trial judge and which was, through unintentional error or mistake on the part of one of the staff members in the lower court, left out of the original Judgment.” The stipulation is signed by all counsel but not by the trial judge.

La.C.C.P. Art. 1951 allows an amendment to a final judgment in order to alter phraseology or correct calculations, but not to alter its substance. The addition of the consortium awards in the “Stipulation to Judgment” constitutes a substantive change and the proper solution is an application for a new trial or a timely appeal. Murry v. Aquatic Equipment & Engineering, 484 So.2d 143 (La.App. 3rd Cir.1986); Perrodin v. Southern Siding Company, Inc., 524 So.2d 885 (La.App. 3rd Cir.1988); Edwin M. Jones Oil Company, Inc. v. Cobb, 469 So.2d 357 (La.App. 2d Cir.1985).

Although a new trial motion or alternatively for remittitur was filed by the defendants and denied, it did not relate to the omissions in the judgment. The motion for appeal did not note the omissions.

In Villaume v. Villaume, 363 So.2d 448 (La.1978) the Supreme Court considered a substantive amendment and held that a motion for new trial or a timely appeal is not necessary when the parties consent to the change. The amended judgment in Villaume was signed prior to the lapse of the delay for taking an appeal. The court concluded the amended judgment had the same result as if the change had been effected at a new trial or on appeal.

This Stipulation to Judgment was filed August 9, 1988, more than five months after the order for suspensive appeal was signed. The thirty day suspensive appeal delay had lapsed and the jurisdiction of the trial court was divested under La.C.C.P. Art. 2088. The incorrect judgment was appealed along with the denial of the alternative motions. All appellate briefs had been filed prior to the stipulation.

However, there is no controversy as to what the jury actually awarded. The defendants signed the stipulation and also appealed the judgment. Therefore, this Court has the authority to change the substance of the original judgment in order to include the stipulation’s additions if the judgment is otherwise affirmed. See Daughdrill v. Tenneco Oil, 529 So.2d 104 (La.App. 4th Cir.1988).

[886]*886FACTUAL AND MEDICAL TESTIMONY

John Savoy testified that on Wednesday February 6, 1986 he was on his commercial route and made a pickup of boxes at Marti-ny Warehouse. He had been there 15 to 20 times before. Savoy backed his truck to the dock, used the stairway, and began loading the freight.. When it started to rain, Savoy remembered he left his billing papers on the seat of the truck with the window down and he started down the steps. His foot hit a metal plate protruding over the stairway, he stumbled and his leg twisted which caused him to fall against the truck. Savoy scratched his arm and felt pain in his knee.

Jack Ellis, Martiny Warehouse’s receiving clerk, was informed by Savoy that he was injured. Ellis saw Savoy was in pain, but he did not see the accident. Joseph Martin, another employee, also saw Savoy after the fall and was told that Savoy had been hurt.

Robert Mason, a truck driver at Steve Thompson Trucking in February, 1986, testified he was familiar with the Martiny Warehouse where he made 30 to 50 trips between 1982 and 1985. He identified nine photographs in evidence as accurate pictures of the dock which was in very poor condition due to broken boards. Mason said metal stripping was sticking up, steps were weak, there was no handrail, and plates were over cracked spots. He admitted that he and Savoy were friends.

William Atkins, another truck driver for Steve Thompson Trucking, also testified as to the loose boards and metal plates nailed down on top of holes. He noted that a piece of angle iron was sometimes up or nailed down. There was also a piece of railroad track sticking up from the ground. Atkins said he and Savoy were not friends.

Savoy said that after the accident he could not bend his leg until it popped back into place. He finished loading the freight and reported the injury to his operations manager. Savoy worked the rest of the week although his knee hurt and was swollen. He did not go to the doctor because there was no sick pay for missed work.

Around 4:00 a.m. Sunday, February 9, 1986 (four days later) he twisted his knee again when his foot got caught in bed covers. An hour later he went to Touro Hospital and saw Dr. Russell Grunsten.

Dr. Grunsten, an orthopedic surgeon, testified that he diagnosed a torn knee cartilage and recommended surgery which was successfully completed the next day, February 10. Savoy was discharged from the hospital February 12, 1986 and underwent physical therapy. By March 27, 1986 he had a full range of motion. Dr. Grunsten said Savoy could go to work on April 8 but he returned to work April 7, 1986.

On April 10, 1986 Dr. Grunsten opined that the knee was doing fine. However, Savoy’s left knee had fluid and joint irritation which was possibly caused by overuse during recuperation from surgery or from arthritic changes. Dr. Grunsten prescribed an anti-arthritic medication and told Savoy to rest. On April 17 the doctor felt Savoy could return to work.

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539 So. 2d 884, 1989 La. App. LEXIS 218, 1989 WL 11890, Counsel Stack Legal Research, https://law.counselstack.com/opinion/savoy-v-martiny-warehouse-inc-lactapp-1989.