Curry v. Iberville Parish Sheriff's Office

• Citation: 378 So.2d 159
• Decision Date: 12 November 1979
• Docket Number: No. 12880,12880
• Parties: Dudley CURRY and Shirley Curry, Plaintiffs-Appellants, v. IBERVILLE PARISH SHERIFF'S OFFICE et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana (US)

Page 159

378 So.2d 159

Dudley CURRY and Shirley Curry, Plaintiffs-Appellants, v. IBERVILLE PARISH SHERIFF'S OFFICE et al., Defendants-Appellees.

No. 12880.

Court of Appeal of Louisiana, First Circuit.

Nov. 12, 1979.

William C. Dupont, Plaquemine, for plaintiffs-appellants Dudley Curry and Shirley Curry.

Emile C. Rolfs, III, Baton Rouge, for defendant-appellee North River Ins. Co.

James F. Abadie, Baton Rouge, for defendant-appellee Allstate Ins. Co.

John I. Moore, Baton Rouge, F. Barry Marionneaux, Plaquemine, for defendants-appellees Iberville Parish Sheriff's Office, Donald J. Daigle and National Fire and Marine Ins. Co.

Thomas S. Halligan, Baton Rouge, for defendant-appellant State of Louisiana.

Before EDWARDS, LEAR and SARTAIN, JJ.

SARTAIN, Judge.

This is a personal injury suit which is presently before this court on appeal from exceptions of no right of action which were sustained by the trial judge. For reasons hereinafter stated, we reverse.

On July 17, 1977, the plaintiffs were involved in a collision on Louisiana Highway 1 within the Parish of Iberville with an Iberville Parish Sheriff's vehicle operated by Donald J. Daigle, who was an auxiliary deputy on duty at that time. Shortly thereafter, another automobile driven by one Edward G. Robinson also struck the plaintiff's automobile.

Named as defendants in the original filing of this suit were the Sheriff's Office, Deputy Daigle, and National Fire and Marine Insurance Company, which insured the Sheriff's vehicle fleet.

By subsequent amendments, the State of Louisiana, North River Insurance Company as the comprehensive general liability insurer of the sheriff, and Allstate Insurance Company, which had issued a policy of public liability insurance to Daigle, were added as defendants. The state thereafter filed third party demands against several parties including North River and Allstate.

Those two insurers then filed peremptory exceptions of no cause and no right of action and motions for summary judgment against the plaintiffs and the third party demands of the state. These were heard on February 23, 1979, and the exceptions of no right of action only were sustained. The plaintiffs and the state have appealed that judgment.

The rules pertaining to the use of the exception of no right of action are well settled. When this exception is raised, the inquiry is whether the plaintiff has a legal interest in the subject matter of the litigation. In Bielkiewicz v. Rudisill, 201 So.2d 136 (La.App.3d Cir. 1967), the court stated:

"The essential function of this exception is to provide a threshold device for terminating a suit brought by one without legal interest to assert it. Reporter's Comment (b) 5, LSA-CCP art. 927; Waterhouse v. Star Land Co., 139 La. 177, 71 So. 358; McMahon, Parties Litigant in Louisiana, 11 Tul.L.Rev. 527, 528-32 (1937); McMahon, The Exception of No Cause of Action in Louisiana, 9 Tul.L.Rev. 17, 29-31 (1934). As these authorities note, evidence is admissible on the in limine trial of this exception in order to support or controvert any of the objections pleaded by it. See also LSA-CCP Art. 931.

"However, the exception of no right of action is not available to urge a defense to the effect that the plaintiff is without interest simply because the defendants have a defense to the plaintiff's action. Wischer v. Madison Realty Co., 231 La. 704, 92 So.2d 589; Termini v. McCormick, 208 La. 221, 23 So.2d 52. For instance, in Wischer the Supreme Court reversed the lower courts and held that the defendants could not by this exception introduce a compromise and quitclaim agreement executed by the plaintiff in favor of the defendants, in order to prove that he lacked interest or right to file the suit in question.

"The want of interest raised by the exception relates primarily to whether the particular plaintiff falls as a matter of law within the general class in whose favor the law grants the cause of action sought to be asserted by the suit, with the factual evidence admissible being restricted as to whether this particular plaintiff does or does not fall within the general class having legal interest to sue upon the cause of action asserted. Wischer v. Madison Realty Co., 231 La. 704, 92 So.2d 589; Maryland Casualty Co. v. Gulf Refining Co., La.App. 1 Cir., 95 So.2d 734.

"In short, the objection of no right of action raises the question of whether the plaintiff has a legal interest in the subject matter of the litigation, assuming (for purposes of deciding the exception) that a valid cause of action is pleaded by the petition. LeSage v. Union Producing Co., 249 La. 42, 184 So.2d 727.

"Applying these principles, the plaintiffs, upon their allegations of injury through negligence for which the defendants are responsible, have alleged an interest, a right of action in their favor. The defendants have sought to introduce no admissible evidence to show that the plaintiffs do not as a matter of law possess the legal interest to file suit in tort against the defendants. In this regard, it is immaterial that, as a...