
    Ruth G. HILL, wife of Thomas BARBERITO v. Barbara GREEN (femme sole) and Colonial American Life Insurance Co.
    No. 5059.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 1, 1972.
    Rehearing Denied March 7, 1972.
    Writ Granted April 13, 1972.
    Lawrence J. Smith, New Orleans, for re-latrix, Ruth G. Hill Barberito.
    
      Leonard B. Levy, New Orleans, for Colonial American Life Ins. Co.
    Charles A. Arceneaux, New Orleans, for Barbara Green.
    Before REGAN, LEMMON and GIJL-OTTA, JJ. ;
   LEMMON, Judge.

In the exercise of our supervisory jurisdiction we granted Mrs. Thomas Barberi-to’s application for a writ of certiorari in order to ascertain the validity of the trial court’s denial of her motion for a jury trial.

The suit was commenced by the filing of a petition for damages, which was separately answered by the two defendants, Barbara Green and Colonial American Life Insurance Company. More than two years later, and shortly before the date assigned for trial, plaintiff through new counsel filed a supplemental and amending petition which increased her demand for past and future medical expenses from $4,000.00 to $14,000.00 and for loss of wages from $7,800.00 to $37,800.00, the latter figure including future loss of wages.

Both defendants answered, and within ten days of the filing of the last answer, plaintiff moved for a jury trial. The trial court denied the motion.

We granted certiorari, Regan, J., dissenting, because of our preliminary disagreement over the interpretation of C.C.P. art. 1732 and because of language used by another circuit in interpreting that codal provision in previous cases.

C.C.P. art. 1732 reads:

“A party may demand a trial by jury of any issue triable of right by a jury in a pleading filed not later than ten days after the service of the last pleading directed to such issue.”

The official revision comment states:

“Normally, the demand for a jury trial would be made by the plaintiff in his petition, or made by the defendant in his answer. If not made then, under the above article it may be made in a supplemental pleading filed timely. This supplemental pleading would have to be filed not later than ten days after service of the answer, if there was no incidental demand; or not later than ten days after service of the answer to the incidental demand.”

The parties concede that there is no absolute right to a jury trial in civil cases. But counsel for Mrs. Barberito urges that where the right to trial by jury is provided, courts should indulge every reasonable presumption against a waiver, loss or forfeiture thereof. See Hicks v. Board of Supervisors of Louisiana State University, supra.

Then to the argument that allowing the right to a jury trial to be revived by any supplemental pleading will lead to absurd consequences (such as amending the petition to increase the demand for damages by $1.00), counsel answers that the trial judge can control this, since supplemental pleadings at that stage can only be filed with leave of court or with written consent of the adverse party. C.C.P. art. 1151. Counsel points out that the trial judge can deny (or vacate) the order required to file supplemental pleadings, if such pleadings are frivolous.

While we recognize that this would be a reasonable procedure for vesting .the trial judge with discretion in the granting of jury trials, the legislature did not confer to litigants the right to apply for a jury trial at any time within the sound discretion of the trial judge. The redactors of the code and the legislature sought to set a definite time limit within which the request for a jury trial must be made.

“The last pleading directed to such issue” is subject to several interpretations. However, an interpretation that this phrase means any last pleading directed to an issue already raised would emasculate the limiting effect of the article or at best would place the decision whether or not to observe the intended limitation within the trial judge’s discretion.

The legislative intent of C.C.P. art. 1732 was to grant the right to a trial by jury in most civil cases and to set the time within which the demand for a jury trial must be filed.

While the right to trial by jury is fundamental and the presumption is against waiver of that right, once a party does waive that right by failing to file a timely demand, he cannot untilize an amended pleading to give rise to a new right to a jury trial on issues raised by the original pleadings.

This interpretation of C.C.P. art. 1732 is consistent with the Federal decisions under Federal Rule 38(b), which is the source of our procedural article. See 2B Barron and Holtzoff, Federal Practice and Procedure, § 878 (1961); 9 Wright and Miller, Federal Practice and Procedure, § 2320 (1971).

For the foregoing reasons, the judgment of the trial court is affirmed.

Affirmed,

GULOTTA, Judge

(dissenting).

I respectfully dissent from the conclusions reached by the majority.

I am of the opinion that the restricted interpretation of LSA-C.C.P. 1732 by the majority is inconsistent with the presumption in favor of allowing jury trials and against the waiver thereof.

I fail to 'find validity in this conclusion either from a reading of the statute or from our jurisprudence. It is my opinion that the language referring to the last pleading directed to the issue includes any pleading directed to the issues involved in the particular litigation. Quantum is an issue in this matter. The answer to the supplemental and amended petition is the last pleading addressed to tljat issue and the request for jury trial is made within 10 days of the filing of this answer. In. concluding otherwise, as does the majority, we defeat the basic concept as reflected in Hicks v. Board of Supervisors of Louisiana State University, 166 So.2d 279, which is, that where the right to a jury trial is provided, courts should indulge every reasonable presumption against a waiver, loss or forfeiture thereof.

In Mid Continent Refrigerator Company v. Hurst, 20S So.2d 734, the court affirmed the trial court’s denial of a request for jury trial, made by the defendant, and filed more than 10 days after the service of an answer filed by the defendant. However, a supplemental and amended petition was filed more than 10 days subsequent to the service of the answer. The supplemental petition, according to the court, contained no new or additional facts or any facts of which the defendants were not already apprised. The court stated on page 738:

“There is no question but that the defendant could have, after the filing and service of the supplemental and amended petition, and within ten days thereof, again moved for a trial by jury, and if this he would have done, the Trial Judge would have been required to grant his motion, but this he did not do. In proceeding to trial without a further request for a jury trial, the defendant has waived any rights he may have had to a jury trial.”

Accordingly, I am of the opinion that the legislative intent was not to convey such a restricted meaning to the statute as reflected by the majority opinion. If an ambiguity exists in the statute, I am of the opinion that a more liberal interpretation, so as to allow jury trials, is more consistent with the intent. I respectfully dissent. 
      
      . See Stone v. I. E. Miller & Sons, 227 So.2d 769 (La.App. 1 Cir. 1969) ; Mid-Continent Refrigerator Co. v. Hurst, 205 So.2d 734 (La.App. 1 Cir. 1967) ; Abercrombie v. Gilfoil, 205 So.2d 461 (La. App. 1 Cir. 1967) ; and Hicks v. Board of Supervisors of Louisiana State University, 166 So.2d 279 (La.App. 1 Cir. 1964).
     