178 So. 489 | La. | 1938
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *913 The plaintiffs are appealing from a judgment dismissing their suit on an exception to the jurisdiction of the court, ratione personæ. The defendant is a Louisiana corporation, having its domicile in the city of Monroe, in the parish of Ouachita. The corporation is a common carrier of passengers, by airplanes, traveling over the route between Charleston, S.C., and Dallas, Tex., and having a passenger station at the municipal airport in Shreveport, La. The plaintiffs are Mrs. Lorrain L. O'Brien and *914 her minor son, Chris O'Brien, Jr., who was emancipated after the events which caused this lawsuit occurred. The suit is for damages alleged to have been suffered by Mrs. O'Brien, and for damages alleged to have been suffered by her son, as a result of the alleged refusal of the defendant to receive him as a passenger on one of the regular passenger planes of the corporation, at its station in Shreveport, on December 21, 1936, at midnight. The plaintiffs instituted the suit in Shreveport, instead of instituting it at the domicile of the defendant, on the theory that the alleged negligence on the part of the defendant, or failure of the defendant to perform an alleged obligation on its part, occurred in Shreveport, when the defendant refused to receive Chris O'Brien, Jr., as a passenger. Hence the plaintiffs contend that the venue, or parish in which the alleged events upon which the suit is founded took place, is the parish of Caddo; and they claim the right to prosecute the suit in that parish, under the ninth paragraph of article 165 of the Code of Practice, which provides that, in any case where a corporation does anything for which an action for damages lies, or fails to do anything for the failure to do which an action for damages lies, the corporation may be sued either in the parish where the damage is done or in the parish where the corporation has its domicile. The general rule, of course, as stated in article 162 of the Code of Practice, is that the only place in which a civil suit may be brought is in the parish in which the defendant is domiciled.
Inasmuch as no evidence was offered in support of the defendant's exception to *915
the jurisdiction of the court, in this case, the question of jurisdiction depends upon the allegations of the plaintiffs' petition. City of Lafayette v. Wells Fargo Co. Express,
The principal reason given by the judge of the district court, for maintaining that the ninth paragraph of article 165 of the *918 Code of Practice is not applicable to this case, is that, according to the allegations of the plaintiffs' petition, the damages claimed resulted not from a tort but from a tacit breach of contract; and that the breach consisted of the failure of the agent in Los Angeles to send the ticket to Shreveport, for delivery to Chris O'Brien, Jr.
In deciding the question of jurisdiction in this case it is a matter of no importance whether the suit is to be regarded as an action in tort or as an action for breach of contract — whether the damages claimed are considered as having resulted ex delicto or ex contractu. When the ninth paragraph of article 165 of the Code of Practice was adopted, originally, it was applicable only to suits against corporations, and only in cases where the cause of action was an act of commission, not where it was merely anomission to perform some obligation on the part of the corporation. That distinction was observed in many lawsuits against public carriers, in cases founded upon contracts of carriage, where it was sometimes doubtful whether the damages claimed should be regarded as having resulted ex contractu or ex delicto. We refer to the list of cases cited in Tripani v. Meraux,
"Nine — In all cases where any corporation shall commit trespass or do or fail to do anything for which an action for damages lies it shall be liable to be sued in the parish where such damage is done or trespass committed." (We have italicized the words that were added by the act of 1908.)
In the case of City of Lafayette v. Wells Fargo Co. Express,
The statute remained applicable only to suits against corporations, and not to a suit against a partnership or an individual, until the statute was amended by Act No. 130 of 1926, so as to read thus: *920
"In all cases where any person, firm or corporation shall commit trespass, or do anything for which an action for damages lies or where any corporation shall fail to do anything for [the failure to do] which an action for damages lies, such person, firm or corporation may be sued in the parish where such damage is done or trespass committed or at the domicile of such person, firm or corporation."
It is to be observed that, even as amended by the act of 1926, the ninth paragraph of article 165 of the Code of Practice is not applicable to an action for damages against a person or firm, except in an action for trespass or for the commission of an act that causes injury to another. In the case of State ex rel. Morgan's La. T.R. S.S. Co. v. Judge, 33 La.Ann. 954, 955, and again in St. Julien v. Morgan's La. Texas Railroad S.S. Co., 39 La.Ann. 1063, 3 So. 280, it was held that the word "trespass" in the statute was used in its broad sense, so as to comprehend any wrongful act of force causing damage to another. But the statute, as amended, is applicable to an action for damages for passive negligence, or for a mere failure on the part of the defendant to perform an obligation, if the defendant is a corporation. The diction employed in the act of 1926 — like that of the act of 1908 — has left no doubt that an action for damages founded upon a contract of carriage, and brought against a corporation doing business as a common carrier, may be brought "in the parish where such damage is done." That means the parish in which the negligence, or the failure in the performance of a duty, occurred. It does not mean, necessarily, the parish in which the party injured actually *921
was at the time when he was injured. In Vicknair v. Daily States Publishing Co.,
The judge of the district court, in his written opinion in this case, held that, according to the allegations of the plaintiffs' petition, the breach of contract occurred when the defendant's agent in Los Angeles neglected to forward the ticket to Shreveport. In the brief of the attorney for the plaintiffs it is said that the negligence of the agent of the defendant in that respect was the direct cause of the damages. Hence it is argued by the attorneys for the defendant that the negligence occurred in Los Angeles, and at a time when Chris O'Brien, Jr., was not a passenger, or entitled to the rights of a passenger, in the care of the defendant. It is not alleged in the plaintiffs' petition that the negligence of the defendant's agent, in failing to send the ticket to Shreveport, was the direct cause of the injury. It is not conceded by the plaintiffs *922 that any such negligence on the part of the defendant's agent in Los Angeles was the only cause of the alleged injury. On the contrary, it is argued for the plaintiffs that the ticket, which the agent in Los Angeles said would be sent to Shreveport, was not the contract of carriage, but was only the evidence of the contract, which could have been carried out by the defendant, notwithstanding the failure of its agent to forward the ticket to Shreveport. The place where the defendant was to carry out the contract — or was to begin the carrying out of the contract — was at the defendant's station, in Shreveport. The plaintiff in a case like this is not supposed to know who, among the defendant's agents, was responsible, or who among them was most directly responsible, for the failure of the defendant to fulfill its obligation. In the case of Baltimore Ohio Railroad Co. v. Thornton, 188 F. 868, decided by the United States Circuit Court of Appeals for the Fourth Circuit, in 1911, Mrs. Thornton was put off of the defendant's train, by the conductor, before she had reached her destination, because the station agent who sold her the ticket failed to punch the place of her destination. She sued for damages, and the defendant contended that the conductor did nothing more than his duty in compelling Mrs. Thornton to get off of the train when he observed that her ticket did not oblige him to carry her to the city to which she said she had paid her fare. But the court held that, even though the conductor did nothing more than his obligation to his employer demanded of him under the circumstances, his action constituted a tort on the part of the defendant, as far as the plaintiff was *923 concerned. By the same token the refusal of the defendant's agents in Shreveport, in this case, to receive Chris O'Brien, Jr., as a passenger, constituted negligence on the part of the defendant, as far as the plaintiffs are concerned — notwithstanding O'Brien had no ticket — if in fact his mother paid for the ticket and the defendant's agent in Los Angeles failed to carry out his promise to forward the ticket to Shreveport.
The judgment appealed from is annulled, the defendant's exception to the jurisdiction of the court is overruled, and the case is ordered remanded for further proceedings. The costs of the trial of the exception to the jurisdiction, including the costs of this appeal, are to be borne by the defendant. All other court costs are to abide the final disposition of the case.
FOURNET, J., concurs.
HIGGINS, J., absent.