Bartholomew v. Impastato

• Decision Date: 29 March 1943
• Docket Number: 17786.
• Citation: Bartholomew v. Impastato, 12 So.2d 700 (La. App. 1943)
• Court: Court of Appeal of Louisiana
• Parties: BARTHOLOMEW v. IMPASTATO ET AL.

12 So.2d 700

BARTHOLOMEW v. IMPASTATO ET AL.

No. 17786.

Court of Appeal of Louisiana, Orleans.

March 29, 1943

Rehearing Denied April 26, 1943.

See 13 So.2d 124.

Borris Burk, of New Orleans, for appellant.

Clay & Kohlman and James J. Kohlman, all of New Orleans, for appellees.

McCALEB Judge.

The plaintiff, Eddie Bartholomew, appearing individually and on behalf of his minor son, Calvin Bartholomew, brought this suit against Jake, Ignatius and Pecobio Impastato, Mrs. Mamie Impastato, wife of Anthony Cassisa, Mrs. Lena Impastato, wife of James Serio, Mrs. Mary Impastato, wife of Burns Garic, and Mrs. Cecile Lo Cicero, widow of Francesco Impastato individually and as natural tutrix of the minors Rosalie Leon and Frank Impastato, seeking a judgment for damages against them, in solido, for the personal injuries sustained by his minor child, when it fell from the second story balcony of the premises which had been leased by the defendants to the plaintiff.

In his petition, plaintiff alleges in substance as follows: That, on August 13th, 1940, and prior thereto, he was a tenant occupying two rooms on the second floor of the premises No. 2707 Chartres Street, which is a tenement or apartment house owned by the defendants; that, on that date at between 5 and 5:30 p.m., his three year old child, Calvin, fell from the gallery of the second floor of the premises to the paved ground below (a distance of about 14 feet); that the fall was occasioned by the defective condition of the balustrade and banisters protecting the gallery; that said balustrade and posts were rotten, loose and defective and that some of the banisters of the balustrade were missing. He avers that, as a result of the accident, his child was seriously injured, sustaining a fracture of the skull (more particularly a fracture of the left parietal bone) which rendered him unconscious for 1 1/2 hours; that he also suffered contusions and bruises about the body generally; that he endured great pain and was confined to the hospital for seven days and, thereafter, for many weeks in his home; that it is believed that the child's nerves and general health are seriously impaired; that his mind is affected and that his injuries are permanent. It is further alleged that the accident was due solely to the fault of the defendants, the lessors and owners of the property, in that they knew or should have known of the defective and dangerous condition of the balustrade, banisters and posts protecting the gallery; that these defects had existed for a long period of time and that, notwithstanding this, the defendants neglected to have them repaired. Plaintiff prayed for judgment in his own right for the sum of $100 for the medical bills incurred by him for the treatment of his child and, on behalf of the minor for the latter's use and benefit, the sum of $5,000.

In due course, defendants appeared and filed an exception of vagueness and an exception of no right or cause of action. The exception of vagueness was sustained and plaintiff's petition was amended in accordance with the court's order. The exception of no cause of action was referred to the merits of the case and, thereafter, defendants filed their answer admitting the ownership of the property; that the plaintiff and his family were occupying the second floor thereof as tenants and that the child fell from the balcony and sustained injuries. They, however, denied that the accident was attributable to their neglect and, alleging affirmatively that the balcony and the banisters thereof were free from defects and in sound condition, they prayed that the suit be hence dismissed with costs.

The Charity Hospital of Louisiana at New Orleans intervened in the case, seeking a judgment against the defendants for the sum of $54, representing the value of the treatment which it administered to the child as a result of the accident.

The case proceeded to trial on the foregoing issues. After the plaintiff had introduced the testimony of some eight or nine witnesses in support of the allegations contained in his petition and had rested his case, counsel for the defendants renewed their exception of no right or cause of action. The judge, being of the opinion that the plea was well founded because the plaintiff had not proved the allegations of the petition to his satisfaction, sustained the exception and dismissed the suit. Plaintiff has appealed from the adverse decision. The intervenor, Charity Hospital, did not appeal and, hence is not before us.

When the case was called for argument in this court, counsel for plaintiff contended that the judge of the lower court was in error in maintaining the exception of no cause of action on the theory that plaintiff had not sustained the allegations of his petition by adequate proof. Counsel asserted that the procedure adopted by counsel for defendants, in urging an exception at the conclusion of plaintiff's evidence, was tantamount to a motion by defendants for a judgment on plaintiff's evidence, or a demurrer to the evidence; that such procedure is unknown in Louisiana practice and that, while the defendants unquestionably had the right to submit the case for decision on the evidence produced by plaintiff, they could not use the exception of no cause of action to accomplish this purpose and that, therefore, the exception should be overruled and the case remanded for further proceedings. In support of his position, counsel directed our attention to the recent case of Williams et al. v. Missouri Pac. R. Co., La.App., 6 So.2d 79, decided by the Court of Appeal for the Second Circuit, in which a writ of review was refused by the Supreme Court.

Counsel's appreciation of the procedure applicable to civil trials in Louisiana is correct. An exception of no cause of action addresses itself to the sufficiency in law of the petition and exhibits attached thereto. It is triable on the face of the papers. See Trumbaturi v. Katz & Besthoff, 180 La. 915, 158 So. 16, Rome v. London & Lancashire Indemnity Co., 181 La. 630, 160 So. 121 and other cases, too numerous to mention. In determining whether the exception is well founded, the court does not consider the evidence submitted in support of the petition, except in cases where the exception is filed after evidence has been taken and the allegations of the petition have been enlarged by such evidence which has been received without objection. See Bell v. Globe Lumber Co. Ltd., 107 La. 725, 31 So. 994; McQueen v. Tremont Lumber Co., La.App., 151 So. 683 and Anderson v. Harvey & Jones, La.App., 154 So. 495. The rule may be different, with respect to an exception of no right of action, in certain cases where the plaintiff alleges that he is suing in one capacity and the proof shows that his right to sue in that capacity does not exist. But the trial on an exception of no right of action is vastly different from that on an exception of no cause of action because, where an exception of no right of action is interposed, the exceptor has the right to offer in evidence, in limine, for the purpose of showing that the plaintiff does not possess the right he claims or that the right does not exist. See Soniat v. White, 153 La. 424, 96 So. 19; Schmidt v. Conservative Homestead Association, 181 La. 369, 159 So. 587; Duplain v. Wiltz, La.App., 174 So. 652 and La Casse v. N. O., T. & M. R. Co., 135 La. 129, 64 So. 1012.

In the instant case, the defendants filed an exception of no right and no cause of action. An examination of the petition discloses that the exception is barren of any merit, either as to plaintiff's right or his cause of action, because plaintiff obviously has the legal right to sue defendants for the injuries sustained by his minor child and the facts set forth in the petition, taken as true, exhibit that plaintiff is entitled to recover, if he can sustain his allegations by proof. Therefore, there was no valid reason in this case for the maintenance of the exception. However, it seems to be the opinion of counsel for defendants that, in cases where the plaintiff is unable to prove the allegations of his petition, the exception of no right or cause of action may be used as a weapon to perform the same function as a demurrer to the evidence or a motion for a judgment on plaintiff's proof. This is error. Motions for judgment, directed verdicts and demurrers to evidence are procedural pleadings of the common law which are unknown in our system. See Williams v. Missouri Pac. R. Co., supra. And, they may not be invoked in Louisiana by disguising them with the label of exception of no right or cause of action. If the defendant doubts the sufficiency of the evidence submitted by plaintiff to sustain his demand and does not see fit to contradict the evidence which has been submitted, he unquestionably has the right to have the court determine the sufficiency of plaintiff's evidence by resting his case. In such instances, a judgment should be rendered on the merits in favor of one side or the other--but not on an exception of no cause of action--for that exception challenges the legality of the cause alleged and does not pertain to the trial on the merits.

For the foregoing reasons, we hold that the defendant's exception was improperly maintained. However, the discussion we have undertaken on this question has been to some extent of an academic nature in this case for the reason that, when the matter was being argued in this court, counsel for defendants stated to us that the case should not be remanded to the lower court in any event because their clients did not desire to offer evidence to refute plaintiff's proof and that they were willing to submit the case for final decision on the evidence produced by the plaintiff. And, at our suggestion, counsel...