Lopez v. Bertel

• Decision Date: 21 October 1940
• Docket Number: 17389.
• Citation: 198 So. 185
• Court: Court of Appeal of Louisiana — District of US
• Parties: LOPEZ v. BERTEL ET AL.

198 So. 185

LOPEZ v. BERTEL ET AL.

No. 17389.

Court of Appeal of Louisiana, Orleans.

October 21, 1940

Appeal from First City Court of New Orleans; Val J. Stentz, Judge.

Suit by Lawrence Lopez, Sr., for himself and his minor son, Lawrence Lopez, Jr., against Numa V. Bertel, Sr., and another, for damages resulting from an automobile collision, in which the American Mutual Liability Insurance Company intervened to recover the amount it paid plaintiff under a collision insurance policy and named defendant filed a petition in reconvention for damage to his automobile. From a judgment for plaintiff and intervener and dismissing the reconventional demand, defendants appeal.

Affirmed.

Gordon Boswell and Stanley E. Loeb, both of New Orleans, for appellants.

Harry R. Cabral and Harry Herman, both of New Orleans, for appellee.

JANVIER, Judge.

This litigation results from an automobile collision which occurred at about 2:00 o'clock in the morning on May 7 1939, at the corner of Canal Street and Carrollton Avenue in New Orleans.

The cars involved were a Ford owned by Lawrence Lopez, Sr., and operated by his son, Lawrence, Jr., aged 17, two companions being seated on the front seat with him, and another car owned by Numa V. Bertel, Sr., which car, he alleges, was also a Ford, but which his son, Numa, Jr., who was driving it states was a De Soto.

Lopez initiated this proceeding by filing suit in the First City Court against Bertel, Sr., and his liability insurance carrier, New York Casualty Company, both on his own behalf and for the use and benefit of his minor son, alleging various acts of negligence of young Bertel as the cause of the accident. In behalf of his son he claimed $50, and in his own behalf he prayed that he be awarded $90 for loss of earnings caused by the inability to use his car for a period of eighteen days, $10 " for doctor's bills growing out of said accident" and $50 for that part of the automobile repair bill which he himself was required to pay.

While he does not allege it, it appears, from other facts to which we shall refer, and also by inference from other allegations that, of the total repair bill amounting to $169, Lopez, Sr., paid $50, the balance having been paid by his insurer under a policy of " collision" insurance, by the terms of which his insurer agreed that, should his car, as a result of collision, sustain damage necessitating repairs costing more than $50, the first $50 should be paid by him (Lopez) and the balance would be paid by it (the insurer).

The said insurer, American Mutual Liability Insurance Company, then intervened, alleging that it had issued the said policy of collision insurance; that it had paid $119 of the cost of repairing the damage to the Lopez car and that it had taken from Lopez a subrogation and an assignment of his rights against the tort-feasor. It prayed for judgment for $119 against Bertel, Sr., and his insurer, the New York Casualty Company.

Both defendants--Bertel, Sr., and the New York Casualty Company--in answer to the petitions of plaintiff and of intervenor, denied that the accident resulted from any negligence of young Bertel and averred that the true cause was the negligence of young Lopez. Bertel, Sr., then assuming the position of plaintiff in reconvention, charged that the damage to his car had been caused solely by the alleged negligence of young Lopez and he prayed in reconvention for judgment against Lopez, Sr., and his liability insurance carrier for the amount of said damage, to-wit, $276, the loss admittedly sustained by him as the result of the damage to his car.

To the petition of intervention of the American Liability Insurance Company, both Bertel and the New York Casualty Company filed an exception of no right or cause of action.

When the matter came up for trial below, the judge a quo referred the exceptions to the merits. After a trial there was judgment for Lopez, Sr., in his own behalf for $60 and, in behalf of his minor son, Lopez, Jr., for $50, and in favor of American Mutual Liability Insurance Company, intervenor, for $119, and dismissing the reconventional demand of Bertel. Both defendants have appealed and Lopez, Sr., has answered the appeal praying for an increase in the award to him in his own behalf to $150, as originally prayed for.

When the matter was argued before us, counsel for defendants suggested that, though there had not been filed in the trial court, nor in this court, any challenge to the jurisdiction of the court below--to-wit, the First City Court of New Orleans--we should, nevertheless, take notice of that lack of jurisdiction and, on our own motion, dismiss the suit since the lack of jurisdiction is said to result from the fact that the amount claimed exceeds the maximum jurisdictional limit of the First City Court. We shall first consider this suggestion.

Wherever the court below was without jurisdiction ratione materiae, we not only are authorized, but are required, to dismiss a suit even though there has been filed no pleading challenging the jurisdiction. Among the annotations appearing under Article 606 of Dart's Code of Practice appears the following: " When jurisdiction is wanting ratione materiae, the court is bound ex officio to notice it; and the judgment of a court wanting such jurisdiction will be null. Dupey v. Greffin ['s Ex'r], 1 Mart. (N.S.) 198; Lafon['s Ex'rs] v. Lafon, 1 Mart. (N.S.) 703; Waters v. Wilson, 3 Mart. (N.S.) 135; Kerr v. Kerr, 14 La. 177; Greiner v. Thielen, 6 Rob. 365; Fleming v. Hiligsberg, 11 Rob. 77; Tague v. Royal Ins. Co., 38 La.Ann. 456; Riggs v. Bell, 39 La.Ann. 1030, 3 So. 183; Gee['s Heirs] v. Thompson, 39 La.Ann. 310, 1 So. 537; Weis v. New Orleans Board of Trade, 125 La. 1010, 52 So. 130."

See, also, State ex rel. Fourroux v. Board of Directors, Public Schools, Jefferson Parish, 3 La.App. 2; Heard v. Monroe Sand & Gravel Company, Inc., 6 La.App. 362.

The argument that the lower court is without jurisdiction is founded on the contention that we should consider the amount in dispute as $319 and should hold that, since this exceeds $300, the maximum jurisdictional limit of the First City Court, that court was without jurisdiction.

The items of damage which are involved and which, according to defendants, should be considered as parts of the same claim, are as follows:

(1) Claimed by Lopez, Sr., on behalf of Lopez, Jr., for personal injuries to the latter $ 50.00

(2) Claimed by Lopez, Sr., as medical bills made necessary by the injuries sustained by Lopez, Jr. 10.00

(3) Claimed by Lopez, Sr., as his own loss resulting from damage to his car 50.00

(4) Claimed by Lopez, Sr., as the value of the loss of the use of his car for eighteen days 90.00

(5) Claimed by American Mutual Liability Insurance Company, subrogee of Lopez, as the amount paid by it on account of the damage to the Lopez car 119.00

____________________

$319.00

The argument of defendants is that these items of damage form part of only one claim arising out of only one tort founded on only one cause of action; that the subrogation of a part of his claim by Lopez, Sr., to an assignee did not have the effect of permitting two separate parts of the same claim to be tried in the First City Court since, if there had been no subrogation and had Lopez filed suit for the entire amount, he could not then have presented that claim for $319 in that court, and that the claim of Lopez, Sr., for himself and the claim on behalf of his son are also parts of only one claim.

As apparent authority for the view that the subrogation did not make two claims where only one existed before, we find interesting Hanton v. New Orleans & Carrollton R. R. Light & Power Company, 124 La. 562, 50 So. 544.Kearney v. Fenerty, 185 La. 862, 171 So. 57, also tends to throw light on this question.

But it is not necessary that we consider further whether the subrogation had the effect of making two claims where only one existed originally for the reason that, even if it be conceded that the claim of Lopez, Sr., and the claim of his subrogated insurer should be treated as one, we would still be confronted with the fact that these two claims together do not exceed $300, and that it is only if the claims asserted in behalf of Lopez, Jr., be added to all the other claims that that result is accomplished. And we do not think that that part of the claim of Lopez, Sr., which represents repairs to his car and that part which represents loss of the use of the car should, when the question of jurisdiction is considered, be added to the claim on behalf of Lopez, Jr.

Though the matter is not entirely free from doubt, the prevailing view in Louisiana at this time seems to favor the treating of the two claims--that of the father and that on behalf of the son--as separate and distinct. They are not to be likened to the claims of a husband and of a wife where the wife sues for damages for personal injuries and the husband joins in the same suit to recover the expense to which, as head of the community, he has been put for medical and similar costs made necessary by the wife's injuries. It is settled by our Supreme Court that in such latter case jurisdiction is determined by adding the two claims.

In La Groue et ux. v. City of New Orleans, 114 La. 253 38 So. 160, 161, this question was presented and, in answering it, the Supreme Court said that " the amount in dispute is the total amount sued for" . The reason for such a result is obvious. The claim of the husband for expense is dependent upon the right of the wife to recover for her injuries. The two are so closely related and the husband's claim is so dependent upon the success of the wife's that it is...