153 So. 44 | La. Ct. App. | 1934
Deceased left no children. Plaintiff, her surviving husband, sues Chelette and Taglialavore under article
"He shows that the death of the said Nellie Gray Russell was directly and proximately caused by the negligence of Alphonse Taglialavore and of Arthur Chelette in the following respects, to-wit:
"(1) That the corner of Fairfield Avenue and Jordan Street where the collision occurred, is a busy corner and there is very heavy traffic at about this time in the morning with no lights or other signal device operating at that time; that this was known to both the said Chelette and Taglialavore, and notwithstanding this fact they entered the intersection at a speed which was too great, considering the location and the ordinary condition of traffic at that point.
"(2) That the point at which the collision occurred is a business section of the city of Shreveport, and that the said Chelette and the said Taglialavore were exceeding the speed limit as prescribed by the ordinances of the City of Shreveport, which is 12 miles per hour.
"(3) That both of the said drivers did not keep a proper lookout for approaching traffic on entering the intersection.
"(4) That, alternatively, if the said drivers did observe each other, that then and in that event they did not take heed of the danger of collision, each with the other, but entered the intersection in total disregard of the other's rights."
Taglialavore denied generally the allegations of the petition, and affirmatively averred that the collision was caused by Chelette operating his car at an excessive and illegal rate of speed as he entered the intersection, and suddenly driving his car across the path of travel of the truck, thereby making a collision inevitable. He further averred that plaintiff's wife was struck and killed by the Chelette car and not by his truck, and that he was free of any sort of negligence in connection with the collision and its results. He averred additionally: "Further answering, defendant avers that should the Court find that Abner Russell and Nellie Gray went through the formalities of marriage, as prescribed by law, then and in that event defendant avers that at the date of the alleged marriage of said parties the said Abner Russell was already married to Virginia Wallace who was living at the time and not divorced from him."
Chelette generally denied the allegations of plaintiff's petition, disclaimed any responsibility on his part for the collision and death of plaintiff's wife, but averred that the negligence of Taglialavore alone was the sole and proximate cause thereof; that he was traveling in a careful and prudent manner, with due regard to the safety of himself and others; that he entered the intersection before Taglialavore did, and therefore had the right of way; that he was well past the center of the intersection when struck by the truck; that, when the truck struck his car, it (the truck) was on its wrong side of the street, and for that reason, and because of this gross negligence on the part of Taglialavore, the accident occurred.
The lower court rejected the demands of plaintiff, and dismissed his suit as to both defendants. It held that plaintiff was not the lawful husband of Nellie Gray Russell, and therefore had no cause of action to sue for damages for her death. Plaintiff has appealed.
The defense of Taglialavore propounds two questions of law and one of fact, viz.:
(1) That plaintiff and decedent were never legally married. That is, the legal formalities were not complied with.
(2) That plaintiff and decedent could not contract a valid marriage because plaintiff was the husband of one Virginia Wallace, and not divorced from her.
(3) That defendant Taglialavore in no way contributed to the accident, but that the negligence of defendant Chelette was the sole cause thereof.
So far as Chelette is concerned, plaintiff *46 makes no serious contention here that the collision of the vehicles and the death of his wife were caused by this defendant's negligence. Hence he will be dismissed by us from further consideration. The evidence clearly absolves him from any blame or negligence whatever.
There is no merit in the first proposition advanced by defendant. It is argued that, because the procès verbal of the act of celebration of the marriage of plaintiff and Nellie Gray was signed by only one witness, such marriage was null and void, in view of article
The second question raised by the defense presented a serious legal proposition, far-reaching in its effect and importance, res nova in our jurisprudence, and, due to such importance and the bearing a decision of it will have upon scores of marriage contracts and divorces rendered in the state, we certified the question to the Supreme Court and asked for instructions. The opinion of the court and instructions to us are as follows (
"O'Niell, C. J.
"The Court of Appeal for the Second Circuit, acting under authority of section 25 of Article 7 of the Constitution (1921), asks for instruction on a question of law arising in a case which has been argued and submitted to the court for decision.
"The facts, from which the question arises, are stated by the Court of Appeal. Abner Russell brought this suit against Alphonse Taglialavore and others for damages for the death of Mrs. Nellie Gray Russell, who, the plaintiff alleged, was his wife. She was killed in an automobile accident, in which, the plaintiff charges, the defendants were guilty of negligence. They pleaded in their answer to the suit that when the plaintiff married Nellie Gray he was already married, and not divorced, and hence that his marriage to Nellie Gray was null. The facts in that respect are stated also by the Court of Appeal. Abner Russell married Virginia Wallace in March, 1907, in Caddo Parish, where they were residing and continued to reside. On the 20th of March, 1916, while Abner Russell and his wife, Virginia Wallace Russell, were yet residing in Caddo Parish, he brought suit against her in the Second District Court, in Bossier Parish, for a divorce, on statutory grounds. He alleged in his petition that he and his wife were residents of Caddo Parish and were married in that Parish, which is adjacent to Bossier Parish, but was not in the same judicial district. On the same day on which the suit was filed in Bossier Parish, the wife filed an answer denying every allegation in the petition, except the allegation that she was the plaintiff's wife. She did not except to the jurisdiction of the court. On the next day after the answer was filed, the case was taken up and tried and a judgment of divorce rendered in favor of the plaintiff. Two days afterwards he married Nellie Gray.
"The question propounded by the Court of Appeal is whether the district court in Caddo Parish had jurisdiction to render the judgment of divorce, considering that it was alleged and was a fact that neither party to the suit resided in Bossier Parish, but considering also that the wife appeared and answered the suit, without excepting to the jurisdiction of the court.
"Article 93 of the Code of Practice declares that if a person, other than a minor, is cited to appear as defendant in a suit before a judge whose territorial jurisdiction does not extend to the defendant's domicile, but who otherwise would have jurisdiction to hear and decide the case, and if the defendant so cited pleads to the merits of the case, instead of declining the jurisdiction of the court, the judgment rendered in the case shall be valid. It does not appear that this court has ever had occasion to decide whether article 93 of the Code of Practice is applicable to a suit for divorce. In some states the rule which is stated in the article is applicable to divorce suits. See Werz v. Werz,
"In Andrews v. Andrews,
"In Mann v. Mann,
"The only question that the Court of Appeal is concerned with, in this case, is whether the marriage of Abner Russell to Nellie Gray was absolutely null. If it was not absolutely null, even though it might have been voidable by a direct action during the lifetime of both parties, it is not subject to collateral attack by the defendants in this suit. Hence, if the marriage of Abner Russell to Nellie Gray was not absolutely null, there is no occasion for the court to decide in this case whether the marriage might have been annulled by a direct action during the lifetime of the parties. *48
"A majority of the members of this court are of the opinion that the marriage of Abner Russell to Nellie Gray was not absolutely null, or subject to collateral attack by the defendants in this suit. The marriage was solemnized according to the forms prescribed by law, after Abner Russell had obtained the decree of divorce. An annulment of marriage could not be accomplished without a decree annulling the judgment of divorce.
"In State v. Donzi,
"In Atkins v. Scarborough, 52 La. Ann. 800, 27 So. 134, it was held that, in a suit brought by a woman against her husband for a separation of property, in a court that did not have jurisdiction over the husband, ratione materiæ, if he appeared and answered the suit, the court could render a judgment against him which would not be absolutely null. This court pretermitted the question whether the judgment of separation of property in that case was subject to annulment in a direct action.
"The members of this court are unanimous in the opinion that, if the marriage of Abner Russell to Nellie Gray should have been deemed null, it would have produced all of the civil effects of a valid marriage, according to articles 117 and 118 of the Civil Code, if the parties were in good faith, believing that the judgment divorcing Russell from his first wife was a valid judgment; and, as the record shows that Russell is a very humble and uninformed colored man, there is no reason to doubt that he had implicit faith in his lawyer's obtaining for him a valid judgment of divorce.
"For the reasons stated, the opinion which we give to the Court of Appeal, in response to the court's request, is that the marriage of Abner Russell to Nellie Gray was not an absolute nullity, or subject to collateral attack by the defendants in this suit; and we find it therefore unnecessary to say whether the marriage of Abner Russell to Nellie Gray was subject to annulment in a direct action during her lifetime.
"Overton, J., dissents from the decree that the divorce was not an absolute nullity."
The evidence in the case leaves no doubt as to Taglialavore's negligence being the sole cause of the collision between his truck and Chelette's car. He was traveling at a rate of speed prohibited by law on a busy thoroughfare of the city of Shreveport, on the wrong side of the street, and struck the car after it had cleared the path of travel he should have been pursuing. He was not keeping a proper lookout as he approached the intersection and entered it on the wrong side after Chelette's car had undertaken to cross-it.
Plaintiff's wife was knocked unconscious by the impact of the truck, and lived only thirty minutes thereafter. She and plaintiff were living apart at the time, and had been thus living for seven or eight months. He says they were on "bad terms." Previously they had separated and had become reconciled. He was in Minden, La., when she was killed, and only knew of her death, he says, some fifteen days after it occurred. He viewed her body at the undertaker's place in Shreveport, but did not attend the funeral. He says that sometimes he paid the rent for the house in which deceased lived and sometimes paid her grocery bill, but that she also paid these accounts at other times. For lack of means, he did not pay the expense of her funeral. It is quite obvious that plaintiff and deceased were uncongenial, and that their conjugal relations were of an intermittent character. His grief at her passing must have been negligible, and the actual loss of her consortium amounted to little to him.
A right of action to sue for damages by the surviving husband for the wrongful death of the wife was not provided for in original article
For the reasons herein assigned, the judgment of the lower court which rejected plaintiff's demands against Alphonse Taglialavore is annulled, avoided, and reversed; and, for the reasons herein assigned, there is now judgment in favor of plaintiff, Abner Russell, and against said Alphonse Taglialavore for $500, with 5 per cent. per annum interest from judicial demand until paid and costs of suit. The judgment of the lower court rejecting plaintiff's demands and dismissing his suit as against Arthur Chelette is affirmed.