Babineaux v. Pernie-Bailey Drilling Co.

• Decision Date: 01 May 1972
• Docket Number: PERNIE-BAILEY,No. 51569,51569
• Citation: 261 La. 1080,262 So.2d 328
• Parties: Arlene King BABINEAUX v.DRILLING CO. et al.
• Court: Louisiana Supreme Court

Page 328

262 So.2d 328

261 La. 1080

Arlene King BABINEAUX v. PERNIE-BAILEY DRILLING CO. et al.

No. 51569.

Supreme Court of Louisiana.

May 1, 1972.

Rehearing Denied June 5, 1972.

J. Minos Simon, Ronald E. Dauterive, Lafayette, for plaintiff-appellant-applicant.

Taylor, Porter, Brooks & Phillips, William A. Norfolk and John R. Tharp, Baton Rouge, for defendants-appellees-respondents.

BARHAM, Justice.

Arlene King Babineaux instituted this suit alleging that she, as surviving wife and in her capacity as representative of four minor children, was entitled under Civil Code Article 2315 to damages sustained through the wrongful death of Cecyl Paul Babineaux, alleged to be the husband of petitioner and the father of the children. The defendants are Pernie-Bailey Drilling Co., the deceased's employer; its liability insurer, Travelers Insurance Company; D. J. Doucet, sheriff; and two employees of the defendant employer who are also insured under the Travelers' policy. It is alleged that these two employees had been deputized by the sheriff of St. Landry Parish on or before February 9, 1967, and that on that date, while acting within the scope of their employment with Pernie-Bailey and while attempting to act as deputy sheriffs, they wrongfully shot and killed Cecyl Babineaux.

There are two issues presented for our consideration: (1) The question of the correctness of the courts below in their determination that Arlene King Babineaux had no individual right of action for the wrongful death of Cecyl Babineaux; and (2) the correctness of the courts below in holding that the minor Drake Paul Babineaux had no right of action for the wrongful death of Cecyl Paul Babineaux.

Defendants answered the original petition. On May 26, 1969, all defendants except Doucet filed a peremptory exception of no right of action in the plaintiff individually or in her representative capacity, alleging that plaintiff's marriage to Babineaux was a complete nullity. ¹ After a hearing the district court sustained the exception with leave for plaintiff to amend. On June 17, 1969, plaintiff filed her 'second supplemental and amended petition', alleging that although she was married December 3, 1957, to Roland Cleveland Arnold, suit had been filed by Arnold against her for divorce in 1958, that since their separation she had not cohabited with him, and that she was informed by Arnold before her marriage to Babineaux on April 25, 1960, that the divorce had been obtained; that therefore if not the legal wife of Babineaux, she was his putative wife. She further alleged that Drake Paul Babineaux was in truth and in fact the child of Cecyl Paul Babineaux.

On June 20, 1969, defendants' second peremptory exception of no right of action, addressed to plaintiff's petition and her first and second supplemental petitions, was filed on the same grounds previously urged.

On June 30, Judge Fred A. Blanche, Jr., then a trial judge, after considering certain oral testimony as well as exhibits and record evidence, overruled the exception of no right of action. A pre-trial order was entered on October 7, 1969, signed by Judge Donovan W. Parker, who thereafter was the presiding judge in this case. On November 12, 1969, the pre-trial order was amended to read in part as follows: '1. The question of whether or not Arlene Babineaux was the actual or putative wife of Cecyl Babineaux and the question of whether or not the children mentioned in the original petition are the legal or putative children of the union between Cecyl Babineaux and Arlene Babineaux are matters which already have been adjudicated by this court after an evidentiary hearing. The ruling of the court as to these questions is now the law of the case. These questions are not to be urged before the jury and no evidence as to these questions will be presented or attempted to be presented to the jury. There is reserved to the defendants the right to reurge these questions to the court on the condition that defendants meet all of the requirements of the law in such instances.'

On that same day, November 12, a supplemental and amended answer to the original answer was filed by the defendants with the consent of the court. No answer has been filed to the allegations of the second supplemental and amending petition of June 17, 1969.

On January 5, 1970, a third exception of no right of action was filed, alleging the nullity of plaintiff's marriage to Babineaux and alleging bad faith of plaintiff on the date of her marriage to Babineaux which would deny her the status of a putative wife. Although the first trial judge overruled the earlier exceptions of no right of action which had raised the issue of the nullity of plaintiff's marriage to Babineaux, he did so, according to oral reasons reduced to writing, on the ground that plaintiff could proceed under the presumption of a good-faith--putative--marriage. This last exception is the only one challenging her good faith. Hearings commenced on January 12, 1970, by Judge Parker, with additional evidence adduced including the testimony of plaintiff's prior husband Arnold. For written reasons assigned the exception of no right of action was maintained. The court found that when plaintiff married Cecyl Babineaux on April 25, 1960, she was married to and not divorced from Roland Cleveland Arnold, and that she knew she was still the legal wife of Arnold, who had not secured a divorce until March 2, 1962. The court also found that one of the children, Drake Paul Babineaux, who was born August 7, 1960, less than four months after the Babineaux marriage, could not be presumed to be the child of Babineaux. For these reasons plaintiff's suit on her own behalf and as representative of the minor Drake Paul Babineaux was dismissed with prejudice. The court further dismissed as of non-suit plaintiff's suit as representative for the other three minor children because she had not qualified to represent these minors.

From the judgment dismissing the suit in its entirety upon the trial of the exception of no right of action, the plaintiff appealed to the First Circuit Court of Appeal. That court amended the trial court judgment to overrule the exception of no right of action as to the claim filed for and on behalf of the minor children Dixie Anna Babineaux, Tracy Ann Babineaux, and Odie Dean Babineaux. Writs were not taken from this amendment of the trial court judgment, and it is therefore not before us. Writs were applied for by the plaintiff in her own behalf and in her representative capacity for the minor child Drake Paul Babineaux from the Court of Appeal judgment which affirmed the trial court's sustaining of the exception of no right of action in these regards. 250 So.2d 224.

Plaintiff-relator makes a two-pronged attack upon the determination of the courts below that she had no individual right of action for the wrongful death of Babineaux. It is first urged that the ruling upon the exception of no right of action by the first judge became the law of the case, and that no contrary subsequent ruling could be had on that issue. The Court of Appeal correctly held that the overruling of a peremptory exception is an interlocutory order, and that the second judge was permitted to enter a final decree of dismissal based on that exception. Code of Civil Procedure Article 927 lists the peremptory exceptions. It further provides that the objection of no right of action, among others, need not be specially pleaded by exception or answer, but 'may be noticed by either the trial or appellate court of its own motion'. It is apparent that interlocutory orders overruling this and similar peremptory exceptions cannot be binding upon the trial court when it timely--but later--determines error of judgment based upon the matter as submitted or upon subsequent disclosures in the record which require a contrary holding. Art. 928, C.C.P., Comment (c).

Moreover, the 'law of the case' rule is merely a court practice usually applied at the appellate court level in regard to parties who have had the identical issue presented and decided previously by that appellate court in an earlier appellate proceeding in the same case. When the law of the case is applied to certain trial court rulings, it is for that court a discretionary guide. See Labourdette v. Doullut & Williams Shipbuilding Co., 156 La. 412, 100 So. 547 (1924). The law of the case rule cannot supplant the Code of Civil Procedure provision which clearly permits a reconsideration of the overruling of peremptory exceptions. The case of Miller v. Dupuy, 19 La.Ann. 166 (1867), cited by plaintiff-relator, is inapposite and not dispositive of the issue before us. ² Moreover, as noted in our description of the present proceedings, the second judgment on the exception of no right of action actually addressed itself to the third exception of no right of action, where for the first time an allegation that the plaintiff's bad faith denied her the right of a remedy was presented. The first and amended exceptions had presented only the question of the nullity of the marriage. The second trial judge had the discretion and, under the circumstances here presented, the obligation to rule upon the exception.

The second attack upon the trial court's ruling which maintained the exception of no right of action against Arlene King Babineaux suggests, first, that the exception would not admit of an evidentiary hearing, and, second, that the issue was one which should properly be left for a determination by the jury.

Our wrongful death statute, Civil Code Article 2315, reads in pertinent part: 'The Right to recover all other damages caused by an offense or quasi offense, if the injured person dies, shall survive * * * in favor of: (1) the surviving spouse and child or children of the deceased * * *. The survivors in whose favor this Right of action survives may also recover the damages which they sustained through the wrongful death of the...