McInnis v. Terry

• Decision Date: 31 May 1960
• Docket Number: No. 5034,5034
• Citation: 121 So.2d 329
• Parties: B. N. McINNIS et al. v. J. W. TERRY et al.
• Court: Court of Appeal of Louisiana — District of US

Page 329

121 So.2d 329

B. N. McINNIS et al. v. J. W. TERRY et al.

No. 5034.

Court of Appeal of Louisiana, First Circuit.

May 31, 1960.

Rehearing Denied June 29, 1960.

Wood & Jackson, Leesville, for appellant.

Pickett & Pickett, Many, for appellee.

Before TATE, FRUGE and SAVOY, JJ.

SAVOY, Judge and Hoc.

This is a tort action instituted by the Reverend B. N. McInnis, individually, and on behalf of his minor son, William Joseph McInnis, against J. W. Terry and Hubert Westmorland, resulting from an altercation which occurred on the night of October 24, 1958, at the Marion High School Stadium in Calcasieu Parish, Louisiana, between the minor son of B. N. McInnis, William Joseph McInnis, and John Wesley Terry and Jerry Westmorland, minor sons of defendants.

For a cause of action, plaintiff alleged that on the night mentioned above that a football game was played at the Marion High School Stadium between Leesville High School and Marion High School. Petitioner's son was a member of the Leesville High School band. During the half time intermission of said game, his minor son left his seat in the stadium and went to retrieve a horn and bell, and that as he returned to his seat that he was met by John Wesley Terry and Jerry Westmorland; that his passageway was blocked by both minors named above, at which time he was brutally assaulted by John Wesley Terry who struck petitioner's son in the mouth causing certain physical injuries, as will be discussed later.

Petitioner alleged further that the assault and battery were wholly unprovoked and without cause, and asked for an in solido judgment against the fathers of the two minors named herein.

To this suit Hubert Westmorland, father of Jerry Westmorland, filed a general denial. The attorney for J. W. Terry, father of John Wesley Terry, stated that William Joseph McInnis, without any cause or provocation, struck John Wesley Terry a hard blow on the back of the head with a cowhorn, which blow caused considerable pain and discomfort to Terry for several minutes thereafter; that immediately after striking John Wesley Terry, William Joseph McInnis left his seat in the stadium, went to the bottom of the stand, and then immediately returned; that upon the return of William Joseph McInnis to his former seat, John Wesley Terry told him that he had better not strike him again. Upon being told this, William Joseph McInnis attempted to strike Terry again with the horn, and that Terry, being in fear of being struck again and still smarting from the first blow, struck William Joseph McInnis on the face with his fist; that Terry struck McInnis one time only and only for the purpose of defending himself against being struck the second time by the said McInnis; that McInnis was the aggressor in the difficulty all along, having provoked said difficulty, and that since Terry was not the aggressor that the demands of plaintiff should be dismissed.

On these issues the case was tried, and at the termination thereof, the attorney for Jerry Westmorland filed an exception of no cause of action and no right of action. Counsel for John Wesley Terry filed an exception of no cause of action. The lower court overruled all of the exceptions filed by defendants and rendered judgment in favor of plaintiff individually and on behalf of his minor son, and against defendants in solido in the sum of $2,724, $324 being for medical expenses incurred by the said plaintiff herein, and $2,400 for loss of teeth, damage to the minor son's lips, pain and suffering, embarrassment and humiliation.

From this judgment both defendants have appealed.

Plaintiff, through his attorney, answered the appeal asking that the award be increased.

On the Exceptions

The Court will first discuss the exceptions filed by defendants for the reason that if these are good, it would settle the issue without having to go into the merits of said case.

The evidence discloses that on the night in question young McInnis had gone to Lake Charles as a member of the Leesville band. He played the trombone in said band. Leesville High School was playing Marion High School a football game. At half time young McInnis went to retrieve a so called cowhorn which had fallen to the ground from the stands above, and that as he walked back, he was stopped by young Terry and asked by Terry if McInnis had hit him with said horn. McInnis stated that he had not. Then Terry asked young Westmorland if McInnis was the one that had struck him and Westmorland said 'Yes'. Immediately thereafter, Terry struck McInnis in the face with his fist, and as a result thereof, McInnis lost three front teeth and received a cut on the upper and lower lip.

The writer of this opinion has been at the Marion High School Stadium on several occasions. It is of wooden construction. The seats are flat without any support, thereby leaving space on each row wherein objects may fall to the ground.

The lower court concluded that Terry and Westmorland were not telling the truth and that the attack by Terry was unwarranted, and he also held that Jerry Westmorland had encouraged Terry in his unlawful act and held the father of both minors liable in solido.

The exceptions filed by counsel for defendant on behalf of Hubert Westmorland are on the basis that the plaintiff's petition does not state that Jerry Westmorland was living with his father at the time of the incident in the case at bar. The exceptions filed by counsel for J. W. Terry are in part similarly based. In support of their proposition, they cite Article 2318 of the LSA-Civil Code. This article provides the following language:

'The father, or after his decease, the mother, are responsible for the damage occasioned by their minor or unemancipated children, residing with them, or placed by them under the care of other persons, reserving to them recourse against those persons.

'The same responsibility attaches to the tutors of minors.'

Although it is the better practice to do so, the trial court held that, since as a matter of law the residence of an unemancipated minor is that of his father unless changed in some manner provided by law, it was not necessary for the plaintiff to allege and prove that the defendants' minor sons were residing with them at the time of the tort, since this is a matter to be urged as a defense to the action. Toca v. Rojas, 152 La. 317, 93 So. 108. We think that under the cited decision by our Supreme Court the ruling is correct. Simmons v. Sorenson, 71 So.2d 377, relied upon by the defendants-appellants, simply concerns an instance where the defendant successfully urged and proved by way of defense that parental authority over the minor in question and, consequently, parental responsibility for his torts had been suspended since the minor had been inducted into the national military service.

In addition, evidence admitted without objection at the trial proves explicitly in the case of young Westmorland and strongly indicates in the case of young Terry that these teenagers were living with their parents.

As an additional ground for the exception of no cause and right of action leveled on behalf of J. W. Terry, his counsel stated that plaintiff did not allege a cause of action for the reason that John Wesley Terry was the adopted son of J. W. Terry, and that under the specific provisions of Article 214 of the LSA-Civil Code, as amended by Section 1 of Act 514 of 1958, the adoptive parent cannot be held responsible for the torts of his minor son, John Wesley Terry.

Article 214 of the LSA-Civil Code of Louisiana, as amended by Section 1 of Act 454 of 1948 provides as follows:

'The adopted and his lawful issue and the adopter shall have the same rights and shall be subject to the same duties and legal incidents towards each other as if the adopted were the legitimate child of the adopter. The adopted and his lawful issue have the same rights as legal and forced heirs to the succession of the adopter as his legitimate children. Also, except as provided in Article 214.7, the adopter has the same rights to the succession of the adopted and his lawful issue as if the adopted were his legitimate child.'

This article was amended in 1958 by Section 1 of Act 514 of 1958, which provides as follows:

'Married persons must concur in the adoption of another person. One of them cannot adopt without the consent of the other.

'The adopted person is considered for all purposes as the legitimate child and forced heir of the adoptive parent or parents, including the right of the adopted person or his lawful descendants to inherit from the adoptive parent or parents or the relatives of the latter by blood or by adoption, and the right of the adoptive parent or parents or the relatives of the latter by blood or by adoption to inherit from the person adopted or his lawful descendants, in the same manner and to the same extent as if the person adopted were in fact the legitimate child of the adoptive parent or parents.

'If the adoptive parent is married to a blood parent of the adopted person, the relationship of that blood parent and his blood relatives to the adopted person shall remain unaltered and unaffected by the adoption. Otherwise, upon adoption: the blood parent or parents and all other blood relatives of the adopted person are relieved of all of their legal duties and divested of all of their legal rights with regard to the adopted person, including the right of inheritance from the adopted person and his lawful descendants; and the adopted person and his lawful descendants are relieved of all of their legal duties and divested of all of their legal rights with regard to the blood parent or parents and other blood relatives, except the right of inheritance from them.'

It is the contention of counsel for Terry, and he has submitted an elaborate brief in support of his proposition that since the adoption of the 1958 amendment of Article 214, that the father can no longer be held responsible for...