D'Allesandro v. Edgar Murray Supply Co.

• Decision Date: 04 April 1966
• Docket Number: No. 2131,2131
• Citation: 185 So.2d 34
• Parties: Mrs. Azaline D'ALLESANDRO v. EDGAR MURRAY SUPPLY COMPANY, Inc., et al.
• Court: Court of Appeal of Louisiana — District of US

Page 34

185 So.2d 34

Mrs. Azaline D'ALLESANDRO v. EDGAR MURRAY SUPPLY COMPANY, Inc., et al.

No. 2131.

Court of Appeal of Louisiana, Fourth Circuit.

April 4, 1966.

Sam Monk Zelden, New Orleans, for Mrs. Azaline D'Allesandro, plaintiff-appellant.

Denechaud & Denechaud, Thomas A. Rayer, New Orleans, for Edgar Murray Supply Co., Inc., defendant-appellee.

Lemle & Kelleher, H. Martin Hunley, Jr., New Orleans, for Illinois Central Railroad Co., defendant-appellee.

Before McBRIDE, CHASEZ and BARNETTE, JJ.

CHASEZ, Judge.

This is an action for wrongful death caused by the disintegration of a grinding wheel. Suit was filed by Mrs. Azaline Farrere D'Allesandro, widow of Pasqual D'Allesandro, on her own behalf and as natural tutrix of her three minor children, Antoine, Raymond and Marianne Elaine, issue of her marriage with the deceased, in the Civil District Court for the Parish of Orleans. Named defendants were the manufacturer of the stone, Nicholl Stone Company of Lorain, Ohio; the vendor of the stone, Edgar Murray Supply Company, Inc., of New Orleans; and the transporter of the stone, the Illinois Central Railroad.

The deceased, Pasqual D'Allesandro, had been a self-employed knife sharpener for many years prior to his death. He conducted business from the rear of an enclosed truck in which he had mounted a sandstone grinding wheel. The wheel was powered through a series of belts and pulleys by a 9 horsepower gasoline motor. On September 24, 1962, while engaged in sharpening knives in his truck, the grinding stone disintegrated and some fragment or fragments thereof struck him in the head, causing serious injuries which resulted in his death some twenty to thirty minutes later.

An exception to the jurisdiction of the Court and to the sufficiency of service of process was filed on behalf of the Nicholl Stone Co., and sustained by a judgment rendered and signed on November 15, 1963. This was a final judgment and subject to appeal. LSA-C.C.P. Article 1915. However, no appeal was taken and the delays within which an appeal could be taken have long since expired. LSA-C.C.P. Articles 2087, 2123.

At the close of plaintiff's case an exception of no right and no cause of action on behalf of the Illinois Central Railroad was submitted to the Court.

On September 3, 1965, a judgment sustaining the exceptions of the Illinois Central Railroad Company, and, on the merits, in favor of the remaining defendant, Edgar Murray Supply Co., Inc., was rendered, from which judgment plaintiff prosecuted this appeal.

Though this judgment with respect to the Illinois Central Railroad is purportedly on the exception, our review of the record indicates that the judgment dismissing the Illinois Central is absolutely correct on the merits, for the transcript is completely devoid of any testimony concerning the Illinois Central Railroad, and contains absolutely no evidence indicating that the Illinois Central Railroad was in fact the common carrier on which the stone was shipped, let alone any evidence of mishandling the stone.

Plaintiffs assert that the present appeal is from the rulings as to all three defendants. The motion for appeal, however, refers only to the judgments of September 3, 1965, sustaining Illinois Central's exception, and dismissing Edgar Murray Supply Company. As noted above, we are of the opinion that as to the decision of the Court sustaining the exception filed by Nicholl Stone Company, the appeal is not effective by reason of not having been filed timely. Plaintiffs argument in brief is in its entirety directed at Nicholl Stone Company as the Manufacturer of the stone. As that party is not before the Court, neither is the question of its liability.

The liability of Edgar Murray Supply Company is not argued in brief; however, as the appeal is allegedly...