Marvin v. Toye Bros. Yellow Cab. Co.

• Decision Date: 15 July 1968
• Docket Number: No. 3127,3127
• Citation: 214 So.2d 196
• Parties: Sherwood MARVIN, Lydia Rope and Rev. Herbert B. Rope v. TOYE BROTHERS YELLOW CAB COMPANY.
• Court: Court of Appeal of Louisiana — District of US

Page 196

214 So.2d 196

Sherwood MARVIN, Lydia Rope and Rev. Herbert B. Rope v. TOYE BROTHERS YELLOW CAB COMPANY.

No. 3127.

Court of Appeal of Louisiana, Fourth Circuit.

July 15, 1968.

Rehearing Denied Oct. 7, 1968.

Deutsch, Kerrigan & Stiles, Charles F. Seeman, Jr., and John F. Tooley, Jr., New Orleans, for Toye Brothers Yellow Cab Company, defendant-appellant.

Simon & Simon, Warren M. Simon, Jr., New Orleans, for Employers' Liability Assurance Corp., Ltd., third-party defendant-appellee.

Liska, Exnicios & Nungesser, Samuel Richard Exnicios, New Orleans, for Sherwood Marvin, Lydia Rope and Rev. Herbert B. Rope, plaintiffs-appellants.

Before SAMUEL, CHASEZ and HALL, JJ.

CHASEZ, Judge.

This is an appeal from the dismissal of the petition to be made parties plaintiff filed herein by Herbert Rope, Jr., and June Rose Rope for the purpose of prosecuting the cause of action filed by their parents, Rev. Herbert B. Rope, Sr., and Mrs. Lydia Rope.

The record in this matter discloses the following uncontroverted facts:

On January 25, 1964, an automobile accident occurred in which Mrs. Lydia Rope was injured. The owner and operator of the car in which she was a passenger was Sherwood Marvin. On January 25, 1965, Rev. Herbert B. Rope, Sr., Mrs. Lydia Rope, his wife, and Sherwood Marvin filed suit against Toye Brothers Yellow Cab Company demanding the sum of $5,000.00 for injuries sustained by Mrs. Rope and $574.00 for medical expenses and X-rays claimed by Rev. Herbert B. Rope, Sr., as head and master of the community; Sherwood Marvin demanded $181.00 for damages to his automobile. On April 27, 1967, answers were filed by Toye Brothers Yellow Cab Company to the suit of plaintiffs denying liability, and in addition thereto the defendant, Toye Brothers Yellow Cab Company sued the Employers' Liability Assurance Corp., Ltd., by third-party proceedings as the insurer of Sherwood Marvin.

On January 4, 1966, approximately two years after the occurrence of the accident sued on, the Rev. Herbert B. Rope and his wife, Mrs. Lydia Rope, were killed in an automobile accident entirely unrelated to the accident sued on. On September 22, 1967, approximately one year and seven months after the death of Rev. Herbert B. Rope and his wife, Herbert B. Rope, Jr., and June Rose Rope, alleging that they are the only legal heirs of Herbert B. Rope, Sr., and Lydia Rope, their parents, filed a proceeding to be substituted as parties plaintiff herein in lieu of their parents and asked for judgment in their favor as originally prayed for by their parents.

On September 22, 1967, the Toye Brothers Yellow Cab Company and third-party defendant, the Employers' Liability Assurance Corp., Ltd ., filed a peremptory exception asking for the dismissal of the suit filed by Rev. Herbert B. Rope and Lydia Rope, his wife, alleging that no legal successor or proper parties were substituted for the deceased plaintiffs within one year from the date of their deaths and, therefore, the rights of anyone to recover for the alleged damages caused by the accident is...