Maryland Cas. Co. v. Gulf Refining Co.

• Decision Date: 04 June 1957
• Docket Number: No. 4430,4430
• Citation: 95 So.2d 734
• Parties: MARYLAND CASUALTY COMPANY, Plaintiff-Appellant, v. GULF REFINING COMPANY et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 734

95 So.2d 734

MARYLAND CASUALTY COMPANY, Plaintiff-Appellant, v. GULF REFINING COMPANY et al., Defendants-Appellees.

No. 4430.

Court of Appeal of Louisiana, First Circuit.

June 4, 1957.

Rehearing Denied June 28, 1957.

Writ of Certiorari Denied Oct. 8, 1957.

Mouton Champagne & Colomb, Lafayette, for appellant.

Lawes, Cavanaugh, Hickman & Brame, Lake Charles, for appellee.

TATE, Judge.

This case was previously transferred by us to the Supreme Court, 77 So.2d 752, but was retransferred by the high court to us. 231 La. 714, 92 So.2d 697.

Plaintiff, as compensation insurer of J. W. Stewart, sues for recovery of benefits paid by it to W. H. Langton, an employee of Stewart disabled allegedly through the negligence of defendant Gulf Refining Company (and also one Laurent who is not a party to this appeal); making co-defendant Gulf's liability insurer. The Louisiana compensation act specifically provides that the employer may bring suit against third person tortfeasors causing the compensable injuries to the employee, LSA-R.S. 23:1101, and that the employer's compensation insurer is subrogated to all rights of the employer under the compensation act, LSA-R.S. 23:1162.

Defendants filed exceptions of no right and of no cause of action.

Over objection of counsel for the plaintiff, the District Court permitted certain evidence to be received in disposing of the alleged exception of no right of action; and then sustained same, dismissing plaintiff's suit; hence this appeal.

Having alleged that under the compensation act 'petitioner is subrogated to the rights of William Herbert Langton against the defendants herein to the extent of the payments made to him', the crux of the tort action is stated in the petition to be as follows:

'On or about May 21, 1952, William Herbert Langton, employee of J. W. Stewart, Distributor of Gulf Refining Company products, was unloading gasoline from a tank truck at the J. L Laurent Gulf Station, DeRidder, Louisiana, and was standing between the said truck, and the gas pump when suddenly' * * * through the negligence of defendants he was severely burned. (Article 6; Italics ours.)

The question presented by the exception of no right of action is whether or not J. W. Stewart as distributor of Gulf Refining Company products was an independent contractor performing part of the trade business, business or occupation of the Gulf Refining Company under LSA-R.S. 23:1061, so that Stewart's employee (Langton) had a cause of action for workmen's compensation against Gulf which consequently excluded any cause of action in tort against said firm. Thibodaux v. Sun Oil Co., 218 La. 453, 49 So.2d 852, Sisk v. L. W. Eaton Co., La.App. 1 Cir., 89 So.2d 425.

Stated otherwise, defendants seek to explain by extraneous evidence that J. W. Stewart, 'distributor of Gulf Refining Company products' was an Independent contractor of Gulf rather than merely a Buyer of its products.

If the defense raised by this exception relates to plaintiff's 'right of action' rather than to (as plaintiff argues) his 'cause of action', the District Court correctly admitted evidence over plaintiff's objection in reaching judgment thereupon; for while extraneous evidence may be introduced in the determination of an exception of no Right of action, it is equally well settled that the exception of no Cause of action is triable on the face of the papers alone, admitting for purposes of the exception all well-pleaded allegations of the petition. Roy O. Martin Lbr. Co. v. St. Denis Securities Co., 225 La. 51, 72 So.2d 257.

The learned District Judge held that the exception in question was levelled at plaintiff's Right to exercise the remedy, as distinguished from the remedy itself, and was therefore properly speaking an 'exception of no right of action', in the decision of which evidence might be taken. It is admitted that if this is an 'exception of no cause of action', that the pleadings taken as true requires its overruling, and the remand for trial on the merits.

Since the time of the opinion below, three decision have been rendered by the Supreme Court and ourselves which have clarified what was admittedly a clouded question at the time; Wischer v. Madison Realty Company, 231 La. 704, 92 So.2d 589; Rapides Grocery Co. v. Vann, 230 La. 829, 89 So.2d 359, and Leteff v. Maryland Casualty Co., La.App. 1 Cir., 82 So.2d 80, certiorari denied.

As these cases all emphasize, the exception of no Right of action is the exception of want of interest or capacity and relates 'specifically to the person of the plaintiff' and its function 'is to raise the question of whether a remedy afforded by the law can be invoked by a particular plaintiff'; whereas the exception of no Cause of action 'relates generally to the action', and its function 'is to raise the general issue as to whether any remedy is afforded by the law' to the plaintiff or by anyone similarly situated, summarizing and quoting from the Wischer case, 92 So.2d 589, at page 591. These cases indicate that a right of action is remedial, the right to pursue a judicial remedy, that is, the right to institute and maintain a suit for a certain object; a cause of action is substantive, the entire state of facts that give rise to an enforceable claim, or in other words, the actual right or obligation which is sought to be enforced.

These cases all cite and rely on the studies of a leading authority upon Louisiana procedure, Dean Henry G. McMahon, and upon the famous leading decision of Duplain v. Wiltz, La.App.Orleans, 174 So. 652, which at page 655 states: 'The right to sue is conferred either by statute or the jurisprudence, whereas the cause to sue is legally determined after investigation of the facts presented.'

In the Duplain case, an occupant of a building sought recovery of damages for personal injuries caused by defects therein. Made defendant was the alleged owner of the building. Under an exception of no right of action the defendant introduced evidence, over plaintiff's objection, successfully proving that defendant was not the owner of the building and therefore not the proper defendant. The appeal was from dismissal of the suit. Observing that such a 'question is purely one of fact and does not militate against plaintiff's legal right to maintain the action', the appellate court concluded that if after trial defendant was found not to be the owner, 'such finding will not be destructive of plaintiff's inherent right to sue the defendant, but will serve to show that the plaintiff was without justification or cause to enforce her right against the defendant.' Therefore the evidence had been improperly admitted, as the exception was levelled at the general cause of action rather than plaintiff's individual right to enforce same, and was therefore an exception of no cause (rather than of no right) of action.

Likewise, in the Wischer case above-cited the exception was based upon the defense that the plaintiffs were without interest or right to maintain the petitory action because of a quitclaim and judicial admission by them relinquishing interest in the property sought to be recovered. Reversing the lower courts, our Supreme Court held that this defense was to the cause of action, presenting factors which tend to defeat the action itself, rather than relating specifically to the persons of the plaintiffs or their right to bring the action.

And in the Rapides Grocery Company v. Vann case,...