171 So. 167 | La. Ct. App. | 1936
As a result of said deaths, these suits were brought by the respective mothers and fathers of the deceased young men against the Monroe Grocery Company, Limited, and its insurer, the Trinity Universal Insurance Company. The petitioners alleged numerous acts of negligence on the part of the truck owner and its employee.
According to the court minutes, defendants filed exceptions to the jurisdiction ratione personæ in both suits. Amended petitions were thereafter tendered and allowed, and such exceptions were overruled. Exceptions of no cause or right of action were then directed to the petitions. These pleadings were general in nature and did not point out or refer to any particular alleged defects of the petitions. They were submitted without argument and overruled.
Defendants in their joint answers, after reserving their rights under the previously filed exceptions, admitted the deaths of Smith and James, but denied responsibility therefor.
By agreement of counsel, the cases were consolidated, and a trial was then had on the merits. At the commencement of the trial the following objection was offered and overruled:
"Defendants object to the introduction of any testimony whatever in either of these consolidated cases on the ground and for the reason that plaintiffs' petitions, nor either of them, disclose a cause or right of action against your defendants."
From judgments in favor of the respective plaintiffs in both cases, defendants prosecuted suspensive and devolutive appeals.
In the brief of defendants' counsel in this court, it is contended that the exceptions of no cause or right of action filed in both cases should have been sustained by the trial court and the suits dismissed, for the reason that the plaintiffs failed to allege and prove that their deceased children were not survived by wives or children.
On learning of that contention, all plaintiffs, through their attorneys, moved that the cases be remanded to the trial court with instructions to permit them to aver that decedents were not survived by wives or children, and to adduce proof in support thereof. These motions allege:
"That the exception of no cause or right of action urged and relied on in this Court by appellants was originally filed in the trial court, without in any manner pointing out at what it was levelled; no argument, either orally or in brief, was made in support of it and the court led to believe that it was filed pro forma and impliedly requested that it be overruled pro forma, as is more fully evidenced by the attached affidavit of the Honorable E.L. Walker, Judge of the Third Judicial District Court, Lincoln Parish, Louisiana, which affidavit is made a part hereof." *169
The attached certificate of Judge Walker, above referred to, reads:
"Ruston, Louisiana,
"November 3rd, 1936.
"I, E.L. Walker, Judge of the Third Judicial District Court, Lincoln Parish, Louisiana, do hereby certify that the exceptions of no cause cr right of action filed by defendants in suits No. 10,340 and 10,341 on the Docket of said Third Judicial District Court, said suits being entitled Andrew R. Smith et ux v. Monroe Grocer Company et al, and William E. James, et ux v. Monroe Grocer Company et al, respectively, were filed by counsel for defendants in Open Court, and the Court given to understand, by implication, that they were filed pro forma and would not be insisted upon.
"Further certify that when said exceptions were called for trial counsel for defendants stated in Open Court they desired to make no argument in support thereof, did not point out at what said exceptions were levelled, filed no brief in support thereof, and the Court by implication invited to overrule said exceptions pro forma.
"Further certify that said exceptions were not relied on or argued by defendants in their brief submitted on the merits of the cases.
"Further certify that if the minute entries in said cases show that said exceptions were tried, argued and submitted, said minute entries contain error to the extent that said exceptions were not tried or argued. That submission of them were for the purpose of overruling them pro forma."
Plaintiffs' motions to remand the cases were opposed by defendants for the following reasons:
1. That the cases are before this court without complaint on the part of plaintiffs of any rulings made by the trial court, and there is therefore no legal ground for remanding them.
2. That whatever rights or causes of action plaintiffs may have had for the deaths of their sons are perempted, more than one year having elapsed from the date of such deaths, and plaintiffs cannot now be permitted to allege and prove causes and rights of action in themselves not heretofore alleged.
Plaintiffs' rights to recover for the deaths of their sons are statutory, and spring from the provisions of article
The jurisprudence of this state uniformly holds that for the mother and father to recover for the death of a child under the above-mentioned article, they must allege and prove that such decedent was not survived by a spouse or child. In other words, a petition must negative the existence of a surviving wife and children, and there must be proof in substantiation thereof, for the more distant relatives to recover. Blackburn v. Louisiana R. N. Co.,
This well-established principle of law is fully recognized and appreciated by plaintiffs' counsel, as is evidenced by the filing of the motion to remand. The failure to make the necessary negative averments was, according to the language of such motion, the result of counsel's oversight or inadvertency. It is reasonable to presume that had the exceptions of no cause or right of action particularized regarding the objections to the petitions, or had they even been urged and argued in the trial court, plaintiffs' counsel would have then become cognizant of their oversight and supplied the necessary allegations and proof. Although our laws do not prevent the filing of a blanket exception of no cause or right of action, the courts of this state have on several occasions frowned on such practice. The Supreme Court, in Davis v. Arkansas Southern Ry. Co.,
"The exception of no cause of action in which no specific objections to the petition are set up, and which remits the plaintiff to an ascertainment of what they may be to the trial of the exception, is calculated to work injury, and in many jurisdictions the defendant is required by express statutes to specify in detail what the objections are so as to enable plaintiff an opportunity to recove the same."
Unless defendants' second objection, regarding the peremption of the claims, is meritorious, we are of the opinion that plaintiffs should be permitted, in the interest of justice and by reason of the circumstances of these cases, to supply the omitted allegations and proof. The courts are liberal in allowing amendments to prevent a miscarriage of justice. Wheeler v. Rodriguez,
In the case of Stearns v. Love Drilling Co. Inc.,
The Orleans Circuit of this court, in Petty v. Jones,
The Supreme Court remanded the case of Scruggs v. Endom,
Under defendants' second objection to the remanding of the cases, they state:
"Whatever rights or causes of action that plaintiffs may have had for the deaths of their sons are now perempted. Plaintiffs had a conditional right to bring suit for the deaths of their sons for a period of one year from the date of the deaths of their said sons, to-wit, August 30, 1935, and this is now November 4, 1936, more than one year having elapsed."
This objection is founded on the provisions of Civil Code, art.
This court had occasion, in the case of Myers v. Gulf Public Service Corporation,
In the Lanis Case, plaintiff's husband was killed while working for defendant company, and she brought suit for compensation, in her individual capacity, under the Federal Employers' Liability Act,
In the opinion of the Myers Case, supra, we said, while referring to the Lanis Case:
"If the plea of prescription was overruled in that case, it certainly should be overruled in the present case, for there has been no change of the status or capacity of Mrs. Myers, the plaintiff herein. The amendment simply alleges what was already true, that is, that the decedent left no surviving spouse or children, whereas in the Lanis v. Illinois Central Ry. Co. Case the plaintiff was permitted to change her status or capacity and then to amend her petition accordingly after the prescriptive period."
The opinion written by Mr. Justice Higgins, now of the Supreme Court, in the case of Wheeler v. Rodriguez, supra, is enlightening. Therein it is stated:
"The federal courts have been liberal in permitting the plaintiff to amend a petition to state a cause of action in order to prevent a miscarriage of justice. In the case of Quaker City Cab Co. v. Fixter (C.C. A.)
"`The cause was removed to the United States District Court for the Eastern District of Pennsylvania. It was not discovered by any one — at least, attention was not called to it — that she had wrongly entitled her cause of action until May, 1924, when a motion for a new trial was argued. It was then raised for the first time by counsel for defendant. More than one year had elapsed since the deceased died, and the statute of limitations prevented a new action from being instituted.
"`The trial judge permitted plaintiff to amend by striking out, etc. Defendant contends that this in substance constituted a new action, and was error. * * * We think that the amendment was one of form, and not of substance, and in such case an amendment may be made under sections 948 and 954 of the Revised Statutes of the United States (Comp.St. §§ 1580, 1591 [28 U.S.C.A. §§ 767, 777]). Federal Courts are very liberal in allowing amendments to prevent a miscarriage of justice. McDonald v. State of Nebraska, 101 F. 171, 41 C.C.A. 278; Murphy v. Stewart, 43 U. S.(2 How.) 263, 281,
"`The facts in the case of Van Doren v. Pennsylvania Railroad Company, 93 F. 260, 35 C.C.A. 282, were practically identical with those in the case at bar. Suit was here brought as administratrix, and not as widow. Plaintiff sought to amend by substituting "widow" for "administratrix." This court, with reference to the allowance of the amendment, said: "Substantial justice requires that such an amendment should be allowed, as a second suit for damages for the death of Henry Van Doren would be barred by the one year limitation in the Pennsylvania statute.'""
In our opinion, the amending of the petitions in these cases will not be equivalent to the bringing of new actions so as to render applicable the one-year peremptive period stipulated in Civil Code, art.
Other than enunciating the well-settled doctrine that the delay provided in said article 2315 is one of peremption, and not subject to interruption as in the case of prescription, properly speaking, the cases cited and relied on by defendants have no bearing on the question presently before us. The cases at bar are presented under *172 different circumstances, as we have here-inabove shown.
As neither the petitions nor the evidence in these cases discloses rights of action in plaintiffs, the judgments must be set aside. However, for the reasons above given, it is our opinion that the cases should be remanded for the purpose of allowing the remedying of such defects.
It is therefore ordered, adjudged, and decreed that the judgments be set aside, and that the cases be remanded to the trial court for further proceedings not inconsistent with this opinion, leave being granted to plaintiffs to amend their pleadings and to adduce evidence thereunder.
The costs of these appeals shall be paid by plaintiffs. All other costs shall abide the final determination of the causes.