Davis v. Lewis & Lewis

• Decision Date: 30 June 1952
• Docket Number: No. 3558,3558
• Citation: 60 So.2d 230
• Parties: DAVIS v. LEWIS & LEWIS et al.
• Court: Court of Appeal of Louisiana — District of US

Page 230

60 So.2d 230

DAVIS v. LEWIS & LEWIS et al.

No. 3558.

Court of Appeal of Louisiana, First Circuit.

June 30, 1952.

Rehearing Denied Sept. 3, 1952.

Writ of Certiorari Denied Oct. 7, 1952.

Anders & Anders, Winnsboro, for appellant.

Theus, Grisham, Davis & Leigh, Monroe, for appellee.

ELLIS, Judge.

This suit was filed in the Parish of West Feliciana as the result of an accident which allegedly occurred on January 1, 1948 between plaintiff's automobile and a truck driven by Willie Wright and being used at that time in the business of Lewis & Lewis, a partnership domiciled in the City of West Monroe, Ouachita Parish, Louisiana, and composed of the individual members of John L. Lewis, who resided at 610 Mill St., West Monroe, Louisiana, and Howard E. Lewis, who resides at 115 Bon Air Street, West Monroe, Louisiana.

After the allegations which described the accident, the negligent acts of the driver of the truck and the injuries suffered by the plaintiff, it was then alleged.

'15. Petitioner shows and avers that he is informed and so believing so alleges that the said Lewis & Lewis, defendants herein, carried Public Liability Insurance on the said large 8-wheel truck involved in said collision, and at the time of said collision; and further shows that under the Law of Louisiana, he is entitled to proceed herein against said liability insurer, as well as the said Lewis & Lewis, but shows that he has been unable to obtain the name and identity of the insurance company carrying said liability insurance on said truck, but avers that said company is also liable herein.

'16. Petitioner shows that said Liability Insurance Company carrying said liability insurance policy on said truck of Lewis & Lewis, and which was involved in said collision, is represented by H. P. Durrett, Insurance Adjuster of Monroe, Ouachita Parish, Louisiana, with offices in the Chase-Amman Building; and petitioner makes said liability insurer, through H. P. Durrett, Agent and Adjuster, a party defendant herein.'

The prayer of plaintiff's petition was as follows:

'Wherefore, your petitioner prays that the said John T. Lewis, and the said Howard E. Lewis, both residents of the City of West Monroe, Ouachita Parish, Louisiana, be duly served with a copy of this petition, and cited herein to answer thereto; and the said H. P. Durrett, Agent and Adjuster, residing in the City of Monroe, Ouachita Parish, Louisiana, be also served with a copy of this petition, and cited to appear and to answer thereto; and that, after due proceedings had, your petitioner herein have and recover judgment against the said defendants, individually, collectively, and in solido, in the full sum of $12,500.00, together with legal interest thereon from judicial demand until paid * * *

'Prays for service and for general and equitable relief in the premises.'

The above referred to original petition was filed on December 29, 1948. On January 19, 1949 H. P. Durrett, one of the defendants, 'appearing solely, only and specially for the purpose of this exception,' excepted to the citation, and on the same date the same defendant, 'reserving all rights under exceptions hereto filed,' filed an exception of no right or cause of action.

On January 29, 1949 with the leave of the court first obtained, the plaintiff filed an amended petition in which it was alleged that the firm of Lewis & Lewis was composed of John G. Lewis and Pearl Lewis, both nonresidents of the State of Louisiana, and that the liability insurer of the said Lewis & Lewis on the date of the accident was the Globe Indemnity Company of New York, 'and which said company has been represented by H. P. Durrett of Monroe, Louisiana, as agent and adjuster in connection with the adjustment of the damages growing out of said accident.' The amended prayer was as follows:

'Wherefore, petitioner prays that an Attorney at Law, practicing at the local bar, be appointed to represent the said absentee individual partnership of the said Lewis & Lewis, defendants herein, and that said absentee defendants be duly cited and served through said attorney appointed to represent said absentees; that the said H. P. Durrett, agent and Adjuster residing in the City of Monroe, be served with a copy of this petition and cited herein, according to law to answer thereto; that the said Globe Indemnity Company of New York, be duly cited herein, and served with a copy of the petition, through the Honorable Wade O. Martin, Jr., Secretary of State of the State of Louisiana, and that, after due proceedings had, your petitioner herein have and recover judgment against the said defendants, individually, collectively and in solido in the full sum of $12,500.00, together with legal interest thereon from judicial demand, until paid.

'Prays for all necessary orders, and for service herein, and for general and equitable relief in the premises.'

Attached to this amended petition is an order apparently written by counsel for plaintiff with the day of the month filled in by the District Judge at the time of signing. This order was in the following language:

'Considering the above and foregoing application, and the law in such cases made and provided,

'It is ordered that Richard H. Kilbourne, an Attorney at Law practicing at the local bar be, and he is hereby appointed to represent the absent defendants, John G. Lewis and Pearl Lewis,

'It is further ordered that the amended petition be allowed filed and served according to law, and that a copy of the original petition, as well as the amended petition, be served upon the parties named in said petition, all according to law, and as the law requires.

'Thus done and signed on this, the 26th day of January, A.D. 1949.

H. H. Kilbourne, Judge 20th Judicial District Court'

On February 18, 1949 John G. and Pearl Lewis filed exceptions to the jurisdiction ratione personae, and H. P. Durrett filed another exception of no right or cause of action and one to the citation insofar as the supplemental petition was concerned. The Globe Indemnity Company plead prescription of one year.

Apparently acting under the order of the court quoted above wherein Richard H. Kilbourne was appointed to represent the absent defendants John G. Lewis and Pearl Lewis, citation was issued to 'Lewis & Lewis, John G. Lewis, Natchez, Miss., through Richard H. Kilbourne, Attorney-ad-hoc,' and 'Lewis & Lewis, Pearl Lewis, Orange, Texas, through Richard H. Kilbourne, Attorney-ad-hoc.' As a result of these citations, the curator-ad-hoc excepted to the citation on the ground that he was appointed to act only for the absent defendants, John G. Lewis and Pearl Lewis, and therefore no order of court had been signed appointing him as curator-ad-hoc for Lewis & Lewis, and on the second ground that said Lewis & Lewis and alleged to be domiciled in the City of West Monroe, Louisiana, and there was no authority under the law for an appointment of a curator-ad-hoc in such a case.

The Lower Court overruled the exception to the jurisdiction stating testimony should be taken to determine whether the Globe Indemnity Company and the firm of Lewis & Lewis had such notice as would interrupt prescription prior to the filing of the amended petition, and as authority for such relied upon the case of Lunkin v. Triangle Farms, inc., 208 La. 538, 23 So.2d 209. Ruling on the exceptions was withheld pending the taking of further testimony.

On August 7, 1951 the testimony was taken and on February 13, 1952 the trial court with written reasons sustained all the exceptions except the one to the citations, filed by H. P. Durrett, and recalled his original ruling in which he had overruled the plea to the jurisdiction, sustained the same and sustained the plea of prescription of one year filed on the part of Globe Indemnity Company.

From this judgment the plaintiff has appealed.

Plaintiff strenuously contends under the original as well as the supplemental petitions that the suit was against Lewis & Lewis. This question is to be settled by the prayer of the petition. Louisiana Digest, 'Pleading', k49; Roney v. Peyton, La.App., 159 So. 469, 470; Streat v. United Industrial Life Insurance Company, Inc., La.App., 143 So. 106; Lagay v. Chieusse, 5 Rob. 132; Spillman v. Texas & Pacific Railway Company, 17 La.App. 473, 135 So. 66; State ex rel. Brown v. United Gas Public Service Co., 197 La. 616, 2 So.2d 41; Rudd v. Land Company, Inc., 188 La. 490, 177 So. 583; South Louisiana Land Co. v. Riggs Cypress Co., Ltd., 119 La. 193, 43 So. 1003; Myers v. Dawson, 158 La. 753, 104 So. 704; Bauer v. Gilmore, La.App., 165 So. 739.

The prayer of the original petition as quoted herein clearly shows that the plaintiff prayed for service & citation of John L. & Howard E. Lewis, and H. P. Durrett, agent and adjuster, and that 'after due proceedings had, your petitioner herein have and recover judgment against the said defendants individually, collectively and in solido * * *.' It is true that in the body of his petition he alleged that Lewis & Lewis is a partnership firm domiciled in the City of West Monroe, composed of John T. Lewis and Howard E. Lewis, giving their street addresses, and that the truck involved in the collision was being driven and operated by Willie Wright, 'who was at the time in the employ of the said Lewis & Lewis, the owners and operators of said large eight wheel truck * * * and used in the business of said Lewis & Lewis,' and 'That the said Lewis & Lewis, defendants herein, carried public liability insurance,' * * * and that 'he is entitled to proceed herein against said liability insurer, and against the said Lewis & Lewis', but when we read the prayer of his petition it is clear that he did not proceed against Lewis & Lewis but prayed only for a judgment against the individual partners, and nowhere in the prayer is the partnership of Lewis & Lewis mentioned and, therefore, the original suit cannot be considered as having brought into Court the firm of Lewis &...