90 So. 238 | La. | 1921
The defendant, Louisiana Railway & Navigation Company, appeals from a judgment taken by default, for $10,-000. The suit was for damages for the killing of plaintiff’s daughter, who, it is alleged, was run over by a freight train operated by the New Orleans Public Belt Railroad Commission over the tracks of the Louisiana Railway & Navigation Company. The New Orleans Public Belt Railroad Commission was cited as codefendant, and judgment was prayed for against the two railroads in solido; but, on an exception that the commission was not authorized by law to stand in judgment, the suit against the commission was dismissed. It is said that the Louisiana Railway & Navigation Company’s failure to answer or plead to the citation was due to a reliance upon the Public Belt Railroad Commission to defend the suit. ■ ■
“Received the within citation and petition on the 25th day of May, 1917, and on the 25th of May, 19J7, served the same on the within name, Louisiana Navigation & Railway Company, by handing a certified copy hereof together with a certified copy of Plaintiff and petition to J. J. Tippin, See’y- in person. I first inquired for President and Vice. Pres, finding them absent I made service on J. J. Tippin, who was in charge of the Company’s office at time of said service.
The officer who served the papers and signed the return was a deputy sheriff of the parish in which the railroad company had its domicile and main office. The statement that the secretary was in charge of the company’s office when the papers were handed to him suffices to show that the service was made at the company’s office. The expression in the return, “served the same on within name Louisiana Navigation & Railway Company,” means, of course, “within named Louisiana Railioay & Navigation Company,” for that was the within named company. The writing of the name “Louisiana Navigation & Railway Company,” in- • stead of “Louisiana Railway & Navigation Company,” was such a palpable error that it could not possibly have misled the defendant railway and navigation company, and it cannot be regarded as serious or harmful. The same may be said of the expression, “copy of Plaintiff and petition,” which, we assume, means “copy of plaintiff’s petition.” If it does not mean that, the words “plaintiff and” may be regarded as superfluous.
In other respects the return shows that service of the citation and copy of the petition was made in the manner provided in section 25 of Act 267 of 1914 (page 532), the statute then in effect. Paragraph (a) of the section provides that, in a suit which may be brought either at the domicile of the defendant corporation or at the place where the cause of action arose, as in this case, the citation may be served 'upon an agent of the corporation in charge of its affairs, or upon an officer or director, wherever found. Paragraph (b) of the section provides that, if an officer, director, or agent in charge of the corporation’s affairs cannot be found, service may be made upon any other regularly employed officer, agent, or employee of the corporation over 18 years of age, found in the office at the domicile of the corporation. The requirement that the return must show that the employee on whom a service was made was over 18 years of age
Our conclusion, therefore, is that the return on the citation shows that it was served legally.
As a general rule defendant who neglects to be preseht or represented in court when his case is tried may not be entitled to have the judge protect him against the introduction of evidence that is not in accord with the allegations of the plaintiff’s petition. But it is settled, by at least three decisions of this court, that such rule does not prevail against a defendant who has not answered or pleaded to the suit, and against whom judgment may be taken by default. Louisiana State Bank v. Senecal, 9 La. 225, Michel v. Dolliole, 1 La. Ann. 459, and Medley v. Wetzlar, 5 La. Ann. 217, all of which decisions were referred to with approval in Lockett v. Toby, 10 La. Ann. 713, and were distinguished from the case of Kohn v. Wagner, 1 Rob. 275, where the defendant had answered the suit.
The rule established by the decisions cited, that a defendant who has not answered or pleaded to the suit, and against whom a judgment may therefore be taken by default, should have the judge’s protection against the introduction of evidence that is not admissible under the allegations of plaintiff’s petition, is founded upon reason and justice. A defendant who has not seen fit to answer a suit upon one cause of action, particularly 'set forth in the plaintiff’s petition, should have no fear that judgment will be rendered against him on another cause of action. The reason for the rule is especially applicable to a suit for damages for an alleged tort. A defendant who declines to answer a particular charge of fault or negligence should not, in his absence, be condemned for some other fault or negligence. A citation to answer a lawsuit calls
Our conclusion is that the judgment in this case, being founded upon a cause of action different from that which was set forth in plaintiff’s petition, should be annulled; and that the case should be remanded for trial of the issues presented in the petition.
Appellant urges two other reasons for asking for the annulment of the judgment, viz.: (1) That, even if the employees of the public belt railroad were guilty of negligence, appellant is not responsible for their negligence; and (2) if there was negligence for which appellant might otherwise be responsible, appellant is relieved from responsibility by the Contributory negligence of plaintiff’s daughter, in attempting to pass through such a narrow space between the box cars. These defenses, as far as the record shows, were not considered by the district court. It will be time enough for us to consider them if the case comes before us on an appeal from a judgment rendered on the cause of action set forth in the petition.
The judgment appealed from is annulled, and it is ordered that this case be remanded to the district court for further proceedings not inconsistent with the foregoing opinion, reserving to plaintiff the benefit of the entry of the preliminary default. The costs of this appeal and of the trial already had in the district court are to be borne by plaintiff; all other costs are to depend upon the final judgment.