165 So. 453 | La. | 1936
Lead Opinion
Mike Tripani, who resides in New Orleans, brought this suit in the civil district court for the parish of Orleans for damages which he alleges he suffered by being bitten by a vicious dog in the parish of Orleans; the dog being owned by the defendant, Dr. L.A. Meraux, who resides and is domiciled in the parish of St. Bernard. Dr. Meraux excepted to the jurisdiction of the court, ratione personæ. The exception was sustained and the suit dismissed. On appeal to the Court of Appeal, the judgment was reversed and the case was remanded to the civil district court for further proceedings. 159 So. 762.
The only question is whether the original jurisdiction or venue was only in the parish where the defendant had his domicile or was, at the option of the plaintiff, in the parish where the dog did the damage.
The allegations in the plaintiff's petition, which disclose his cause of action, and the allegations on which depends the question of jurisdiction, are as follows: That Tripani was suddenly attacked and bitten *69 by a large and vicious dog owned by Dr. Meraux; that the dog was of a bad and vicious temperament, which fact was known by Dr. Meraux; that the dog was harbored on Dr. Meraux's premises and used as a watchdog; that during the daytime the dog was permitted by Dr. Meraux to roam at large about the neighborhood; that at the time when the dog attacked and bit Tripani the dog was roaming at large on the premises known as Jackson Barracks, which is in the lower end of the parish of Orleans, and adjacent to the parish of St. Bernard; and that Dr. Meraux's home is in the upper end of the parish of St. Bernard and adjacent to the parish of Orleans and to the premises called Jackson Barracks.
Article 162 of the Code of Practice declares:
"It is a general rule in civil matters that one must be sued before his own judge, that is to say, before the judge having jurisdiction over the place [meaning parish] where he has his domicile or residence."
Article 165 of the Code of Practice enumerates ten exceptions to the rule that a civil suit must be brought at the domicile of the defendant, and, as amended by Act No.
"In all cases where any person, firm or corporation shall commit trespass, or do anything for which an action for damage lies or where any corporation shall fail to do anything for 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 *70 or at the domicile of such person, firm or corporation."
When this exception to the rule — that civil suits must be brought at the domicile of the defendant — was originally adopted, in article 165 of the Code of Practice, the exception was applicable only to a suit against a corporation, and only where the fault which was alleged to have caused the damage was one of commission — not where the alleged fault or negligence was merely an omission or failure to do something which the corporation should have done. The ninth paragraph of the article then was:
"9. In all cases where any corporation shall commit trespass, or 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."
By Act No.
"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."
Before the article was amended by the act of 1908, it was recognized, consistently, that a corporation could be sued only at its domicile for damages caused by negligence consisting merely of a failure to do something which should have been done; and that it was only in cases where *71
the damage was done by an act of commission that a corporation could be sued in the parish where the damage was done. It was so decided in the following cases, which arose before the article of the Code of Practice was amended by the act of 1908, viz.: Montgomery v. Louisiana Levee Co., 30 La.Ann. 607; State ex rel. Morgan's La. L.R. S.S. Co. v. Judge, 33 La.Ann. 954, 955; Heirs of Gossin v. Williams and Morgan's La. Texas R. S. Co., 36 La.Ann. 186; Houston v. Vicksburg, S. P.R. Co., 39 L.Ann. 796, 2 So. 562; St. Julien v. Morgan's La. Texas R. S.S. Co., 39 La.Ann. 1063, 1065, 3 So. 280; Caldwell v. Vicksburg, S.
P.R. Co., 40 La.Ann. 753, 754, 5 So. 17; Dave v. Morgan's La.
Texas R. S. Co., 46 La.Ann. 273, 14 So. 911; Castille v. Caffery Central Refinery Railroad Co., 48 La.Ann. 322, 19 So. 332; Culpepper v. Arkansas Southern R. Co.,
It must be observed that, even as amended by the act of 1908, the ninth paragraph of article 165 of the Code of Practice was applicable only to suits against corporations — not to suits against individuals. It was only by Act No.
The Court of Appeal, after reviewing the jurisprudence on this subject, concluded that, inasmuch as the defendant was a person, and not a corporation, the question of jurisdiction depended upon whether the fault that was charged against the defendant, in the plaintiff's petition, was one of commission or of omission. That is the plain meaning of the ninth paragraph of article 165 of the Code of Practice, as amended by the act of 1926, and as explained by the jurisprudence on the subject previous to the amendment by *73 the act of 1908. The Court of Appeal held also — and we concur in the holding — that a dog could not be considered as an agent of its owner, and hence that the act committed by the dog in this instance, in the parish of Orleans, could not be considered as an act committed by an agent of the defendant. But the Court of Appeal held that the allegation that the dog was harbored on the defendant's premises as a watchdog, and was permitted by the defendant to roam at large about the neighborhood in the daytime, was, in effect, an allegation that the defendant kept the dog confined on his premises at night and, either personally or through an agent or servant, released the dog in the mornings. Conceding, for the sake of argument, that the plaintiff does charge that the defendant, either personally or through an agent or a servant, committed the act of releasing the dog from confinement, the act was committed on the premises of the defendant, in the parish of St. Bernard. It is not alleged, or even suggested, that the defendant, or an agent or a servant of the defendant, placed or led or drove the dog upon the premises, in the parish of Orleans, where the dog did the damage. It is not even alleged or contended that the dog crossed the line between the defendant's premises and the premises on which he did the damage in the parish of Orleans. On the contrary, the allegation in that respect is merely that the dog was permitted by the defendant "to roam at large about the neighborhood," and that, at the time when the dog attacked and bit the plaintiff, "said dog was roaming *74 around the yard of the Jackson Barracks," which is in the parish of Orleans.
Although article
But the article of the Civil Code which we have referred to, and the decisions cited, have reference only to the cause of action, which the plaintiff claims, and not to the question of jurisdiction. We are not called upon now to say whether the plaintiff has a cause of action; and we express no opinion on that question. The plaintiff may have a cause of action without having the right to bring his action in any other parish than that in which the defendant has his domicile.
Among the cases cited by the attorneys in this case, the one that we regard as most appropriate is Devons v. Lee Logging Co.,
The word "trespass," as used in the ninth paragraph of article 165 of the Code of Practice, is used in its broad sense of committing any wrongful act that injures another, and not in the technical sense of committing a trespass upon the property of another. State ex rel. Morgan's La. L.R. S.S. Co. v. Judge, 33 La.Ann. 954, 955; Heirs of Gossin v. C.C. Williams et al., 36 La.Ann. 186, 187; St. Julien v. Morgan's La. T.R. S.S. Co., 39 La.Ann. 1063, 1064, 3 So. 280; Caldwell v. Vicksburg, S. P.R. Co., *77 40 La.Ann. 753, 754, 5 So. 17. In fact, the exception with regard to an action for damages for "trespass," in its technical sense, is provided for in the eighth paragraph of article 165 of the Code of Practice. This suit was not brought — or claimed to be brought — under the eighth paragraph of article 165 of the Code of Practice.
As the provisions of article 165 of the Code of Practice are exceptions to the general rule, established by article 162, the provisions of article 165 must be construed strictly and as applicable only to cases which come plainly within those provisions. In the case of Montgomery v. Louisiana Levee Co., 30 La.Ann. 607, 608, and again in Castille v. Caffery Central Refinery Railroad Co., 48 La.Ann. 322, 19 So. 332, 333, this court, referring to the ninth paragraph of article 165 of the Code of Practice, said:
"It is a familiar rule that statutes in derogation of a common right must be construed strictly. The entire article 165 is an exception to the general rule established by article 162."
Our conclusion, therefore, is that the civil district court for the parish of Orleans has not jurisdiction over this suit.
The judgment of the Court of Appeal is set aside, and the judgment of the civil district court is reinstated and affirmed, and, accordingly, the suit is dismissed at plaintiff's cost. *78
Dissenting Opinion
The majority opinion points out that article 162 of the Code of Practice provides: "It is a general rule in civil matters that one must be sued before his own judge, that is to say, before the judge having jurisdiction over the place where he has his domicile or residence." But the article also contains the clause,"but this rule is subject to those exceptions expressly providedfor by law." (Italics mine.)
Following article 162 of the Code of Practice, part 2, tit. 1, c. 2, "Of Ordinary Proceedings," section 2, "Before What Tribunals Actions are to Be Brought," exceptions to the rule are declared in articles 163 and 164 and followed by article 165, which provides:
"There are other exceptions to this rule which require that the defendant be sued before the judge having jurisdiction over the place of domicile or residence; they are here enumerated:
"1. * * *
"2. * * *
"3. * * *
"4. * * *
"5. * * *
"6. * * *
"7. * * *
"8. * * *
"9. Trespass. In all cases where any person, firm or corporation shall commit trespass, or do anything for which anaction for damage lies or where any corporation shall fail to do anything for which an action for damage lies, such person, firm *79 or corporation may be sued in the parish where such damage isdone or trespass committed or at the domicile of such person, firm or corporation.
"10. * * *" (Italics ours.)
Thus it may be seen that article 165, as amended, clearly states that "in all cases where any person * * * shall commit trespass, or do anything for which an action for damage lies * * * such person * * * may be sued in the parish where such damage is done * * * or at the domicile of such person."
The provisions of the article are very explicit and unambiguous, and the strictest construction thereof possible cannot change the meaning of the most clear provisions of the article.
In the instant case, according to the allegations of plaintiff's petition, which must be accepted as true for the purpose of passing on the exception, the alleged act on the part of relator (defendant) in having turned loose a large dog, known by him to be of a vicious temperament, which, while roaming at large in the parish of Orleans, bit respondent (plaintiff),is an act for which an action for damage lies, and under the express provisions of article 165 of the Code of Practice, as amended, relator (defendant) "may be sued in the parish wheresuch damage is done," or at his (defendant's) domicile, at plaintiff's option.
*80I therefore respectfully dissent from the majority opinion.