#### Mrs. Doris R. NEREAUX v. Edward RIVET, d/b/a Holiday Park.

No. 7809.

Court of Appeal of Louisiana, First Circuit.

April 13, 1970.

Rehearing Denied May 25, 1970.

See also La.App., 228 So.2d 172.

Neal Bagwell, White Castle, for appellant.

White & May, by Hamlet D. May, Baton Rouge, for appellee.

Before LOTTINGER, BLANCHE and PICKETT, JJ.

LOTTINGER, Judge.

This is a suit brought by Mrs. Doris R. Nereaux, individually and as natural tutrix for and on behalf of her minor child, Doris Dae Smart for damages, resulting from an assault and battery committed by the defendant, Edward Rivet, against Doris Dae Smart. Subsequent to the filing of this suit and prior to trial, the minor child came of age and was made a party plaintiff. The Trial Court found in favor of the plaintiff, Doris Dae Smart Kern, in the amount of $800.00 plus interest and court costs. From this judgment the plaintiffs have appealed.

Doris Dae Smart Kern appeals from the quantum awarded her as damages. Mrs. Doris R. Nereaux appeals from the failure of the Trial Court to award her damages for amounts expended by her for doctor services and medicine as the mother of Doris Dae Smart and both plaintiffs appeal from the failure of the Trial Court to award and set out expert witness fees for the doctor who testified. The defendant has not answered this appeal, and therefore, this appeal is limited to quantum alone inasmuch as the question of liability is not before this Court.

The injuries received by Doris Dae Smart Kern are best described by the testimony of the attending physician wherein he said:

> “Miss Doris Smart was first seen by me on September 21st, 1958, (the date of the assault and battery) at the Plaquemine Sanatarium, at which time she gave the history of having been pulled from a chair by the owner of the Holiday Park, injuring her left shoulder. X-rays were *821taken of the left shoulder, were negative of fracture or dislocation. I made a diagnosis of a traumatic injury to the left shoulder with injury to the bursa (brachial) plexus. At the present time Miss Smart is still complaining of pain on movement of the shoulder but I feel that she has made satisfactory recovery from her injury and that symptoms should disappear in the next few weeks. That was written on March, 1959 — the 3rd.”

The doctor further testified that he discharged her as having recuperated on April 27th, 1959. Miss Smart visited the doctor’s office twenty-nine times for ultrasonic therapeutic treatments. The doctor further testified that there was no permanent injury to this young girl. The Trial Judge had the opportunity to listen to the witnesses and consider all of the evidence presented, and we do not find that he was manifestly inadequate in his award of $800.00 damages to Doris Dae Smart Kern for her injuries.

As to the failure of the Trial Judge to fix the expert witness fees, we feel that this was an oversight on his part, and considering the length of testimony of the doctor, we therefore fix and tax as cost the fee of the medical expert in the amount of $50.00.

As to the appeal by Mrs. Doris R. Nereaux, we can find nowhere in the record of this proceedings any judgment in favor of or against Mrs. Nereaux for the medical expenses paid by her. Since we can find no judgment in this record which has been rendered or signed either in favor of or against Mrs. Nereaux, we do not feel that there is any judgment present which she can appeal from. Therefore, for this reason, her appeal as to the failure of the Trial Court to award her medical expenses must be dismissed.

Therefore, for the above and foregoing reasons, the judgment of the Trial Court is amended, and as amended, affirmed.

Judgment amended and affirmed.

BLANCHE, Judge

(dissenting).

Suit was originally filed by Mrs. Doris R. Nereaux, individually, for the medical expenses incurred by her as a result of an assault and battery committed by the defendant on her minor daughter Doris Dae Smart. In her capacity as natural tutrix of her minor daughter, Suit was also brought on behalf of the minor for her personal injuries. After suit was filed Doris Dae Smart Kern became of age and evidently married and was made a party plaintiff to these proceedings. The majority affirmed the judgment of the trial court granting unto the plaintiff Doris Dae Smart Kern the sum of $800 for her personal injuries but dismissed the appeal of plaintiff Doris R. Nereaux, on our own motion, for the reason:

> “As to the appeal by Mrs. Doris R. Nereaux, we can find no where in the record of this proceedings any judgment in favor .of or against Mrs. Nereaux for the medical expenses paid by her. Since we can find no judgment in this record which has been rendered or signed either in favor of or against Mrs. Nereaux, we do not feel that there is any judgment present which she can appeal from. Therefore, for this reason, her appeal as to the failure of the Trial Court to award her medical expenses must be dismissed.”

I concur with the majority opinion affirming the judgment of the trial court as to Doris Dae Smart Kern but disagree that the appeal of Mrs. Nereaux should have been dismissed, and from that part of our judgment, I dissent.

The petition was filed by Mrs. Nereaux on September 17, 1959, and trial was commenced on January 30, 1962. On that same date an order was signed by the court making Doris Dae Smart Kern a party plaintiff. The trial was continued to March 1, 1962, and then again continued to March *82228, 1963, when the taking of testimony was completed. The testimony was filed over a year later on May 25, 1964. The plaintiff filed his brief on March 29, 1968, and without benefit of a brief from defendant, judgment was rendered on October 17, 1968. Considering the protracted length of time from the date of trial ■ to judgment, it is not difficult to understand how it happened that Mrs. Nereaux was left out of the judgment.

It is also noted that Mrs. Nereaux was not the only one left out of the judgment. The expert witness fee of Dr. Rhodes J. Spedale was likewise not mentioned, and the majority opinion stated in this regard:

> “As to the failure of the Trial Judge to fix the expert witness fees, we feel that this was an oversight on his part, and considering the length of testimony of the doctor, we therefore fix and tax as cost the fee of the medical expert in the amount of $50.00.”

The Court is in error when it states that there is no judgment in the record from which she could appeal. The judgment which Mrs. Nereaux is appealing from is the judgment of the court which failed to make an award to her for damages which she prayed for in her petition and which she proved on trial.1 Mrs. Nereaux was properly before the trial court, and a review of the record demonstrates that she is entitled to recover the medical expenses which she incurred on account of her daughter. It is obvious that her demand' for medical expenses was inadvertently omitted from the judgment just as was the fixing of the expert witness fee for the doctor. This writer cannot believe that the trial judge meant only to render judgment for one plaintiff and not the other for related damages arising out of a single tortious act committed by the only defendant in the case.

However, we need not indulge ourselves in any assumptions favorable to appellant Nereaux. If she was a proper party plaintiff and her demands were properly presented to the trial court and the judgment of the court failed to make disposition of the same, such failure to award a judgment in her favor is in effect a dismissal of her demand against the defendant. In this event the plaintiff has an appealable interest in the judgment of the trial court due to the failure to dispose of her demand in a judgment that was final. Code of Civil Procedure Article 1841 defines interlocutory and final judgments and states:

> “A judgment that determines the merits in whole or in part is a final judgment.”

Article 2083 provides that an appeal may be taken from a final judgment and the general concept that there is no appeal except in the case of a final judgment is universal in order to prevent piecemeal appeals. Three Way Finance Co. v. McDonald, 213 La. 504, 35 So.2d 31 (1948); In re Canal Bank & Trust Co., 216 La. 410, 43 So.2d *777*(1949).

To illustrate how the majority judgment could result in a piecemeal appeal, consider the following: Assume for the sake of argument that after dismissing her appeal Mrs. Nereaux had the legal right to present some pleading to the district court praying for judgment in her favor, and further assuming the trial judge grants her that relief, Mrs. Nereaux will again be put to the trouble of appealing on the same record to this court if the defendant does not acquiesce in the judgment. It has taken her over ten and a half years to get this far, and we could and should have disposed of her appeal.

For the above and foregoing reasons, I respectfully dissent.

Rehearing denied.

Blanche, J., dissents from the refusal to grant a rehearing.

1

. The statement of Dr. Rhodes J. Spedale for professional services rendered to Mrs. Doris Smart Kern in the sum of $175 was filed in the record as Exhibit P-1 and was stipulated to by counsel on page 180 of the transcript.