Myers v. Gulf Public Service Corp

• Decision Date: 27 January 1931
• Docket Number: 3836
• Citation: 15 La.App. 589,132 So. 416
• Court: Court of Appeal of Louisiana — District of US
• Parties: MYERS v. GULF PUBLIC SERVICE CORP

132 So. 416

15 La.App. 589

MYERS v. GULF PUBLIC SERVICE CORP

No. 3836

Court of Appeals of Louisiana, Second Circuit

January 27, 1931

Appeal from the Eighth Judicial District Court, Parish of LaSalle. Hon. Wiley R. Jones, Judge.

Action by Mrs. C. B. Myers against Gulf Public Service Corporation.

There was judgment for plaintiff and defendant appealed. Plaintiff answered appeal.

Judgment reversed, and plaintiff's demands refused and suit dismissed.

Judgment reversed, and plaintiff's demands refused and suit dismissed.

S. R Holstein, of Jena, J. W. Cassidy, of Brookhaven, Miss., and Weber Wilson, of Laurel, Miss., attorneys for plaintiff appellee.

Theus Grisham & Davis, of Monroe, attorneys for defendant, appellant.

OPINION

McGREGOR, J. C.

C. B. Myers and his wife, Mrs. Lola Myers, together with their children, Gordon, Hubert, Gladys and Arline Myers, filed suit against the defendant on June 7, 1929, for the death of Lawrence Myers on January 22, 1929, by electrocution in the ice plant of the defendant in the town of Jena, LaSalle parish, state of Louisiana. The petition alleges that the decedent, Lawrence Myers, was the son of the plaintiffs, C. B. Myers and his wife, Mrs. Lola Myers, and the brother of the other plaintiffs.

It is alleged that, upon the invitation of the defendant through its agents and employees, the senior class of the Jena High School, of which the decedent, Lawrence Myers, was a member, on the 22nd day of January, 1929, visited the ice plant of the defendant for the purpose of studying the processes used in the manufacture of artificial ice.

As the immediate cause of the death of the decedent, it is alleged that the children of the said senior class of the Jena High School, including decedent, were led and directed across and over a large tank or a collection of several small tanks filled with water, out of which blocks of ice were manufactured. That whenever the tanks of water had been frozen into ice the blocks of ice were raised or lifted by a mechanical device overhead and conveyed to other parts of the premises. This device was operated by electricity and was conveyed along a copper wire overhead about six feet and three inches, exposed and charged with electricity. That in walking across the top of these water tanks which, it is alleged, were wet and slippery, the decedent fell, and in trying to save himself from falling, reached up and caught the live copper wire and was electrocuted.

It is further alleged that there was no sort of contributory negligence on the part of the decedent, but that his death was due to the "gross carelessness and negligence" of the defendant. That the proximate cause of the said death was the failure of the defendant, its agents and employees, to warn the decedent of the danger from the exposed or live wire. It is further alleged that the current of electricity should have been turned off while the children were in the room, particularly since the plant was not in operation during the visit of the children.

Plaintiffs sued for damages in the sum of $ 50,000, based on the "anguish and mental suffering caused them by the loss of" decedent. A trial by jury was asked for and granted.

On June 24, 1929, an exception of: (1) misjoinder, (2) vagueness, and (3) no cause or right of action, was filed. This exception was taken up and tried and sustained as to all parties except Mr. and Mrs. C. B. Myers, and as to them it was overruled.

On December 23, 1929, C. B. Myers, one of the plaintiffs left in the suit, appeared through counsel and dismissed the suit insofar as his interests were concerned.

On February 24, 1930, the defendant filed another exception setting up:

"1. That C. B. Meyers, father of the deceased Lawrence Meyers, and husband of the plaintiff, Mrs. Lola Myers or Mrs. C. B. Meyers, having voluntarily dismissed and abandoned the suit and as the damages, if any could be recovered, would belong to the community of acquets and gains existing between plaintiff and her said husband and as her husband is head and master of said community and alone can maintain this action, the petition of the wife discloses neither right nor cause of action.

"2. Plaintiff's petition being too vague and indefinite to admit of proof or to advise the defendant of her demands, discloses no cause of action.

"3. The statute of limitation having already run and all rights of action growing out of or connected with the death of the said Lawrence Meyers being barred by the prescription of one year from the 22nd day of January, 1929, no testimony could be received or amendment allowed so as to make new parties or set up new causes of action and defendant specially pleads the prescription of one year in bar of all demands."

This exception was immediately tried and overruled.

On March 17 and 18, 1930, the case was tried by jury and verdict rendered. On March 18, 1930, after about one-third of the testimony had been taken, a supplement or amendment to the plaintiff's petition was filed and allowed. This amendment or supplement alleged that the decedent left no widow or children. The amendment was allowed over the protest of counsel for defendant.

The jury's verdict was against the defendant and assessed the damages at $ 1000 and judgment in favor of the plaintiff, Mrs. C. B. Myers, for this amount and the costs of the suit was accordingly signed on March 19, 1930. The defendant has perfected its suspensive appeal and the plaintiff has answered the appeal and asks that the judgment be amended by raising the amount of damages to the sum of $ 10,000.

EXCEPTIONS FILED BY DEFENDANT

The exception filed by the defendant on June 24, 1929, was properly sustained as to Gordon, Hubert, Gladys, and Arline Myers, and should have been sustained as to Mr. and Mrs. C B. Myers, the father and mother of the decedent for the reason that the petition did not allege that the decedent left no widow or children. But since the exception was overruled as to Mr. and Mrs. Myers, this defect was subsequently remedied on March 18, 1930, by the filing and allowance of the amendment containing the necessary allegations, even though the date of the filing of the said amendment was more than one year after the date of the death of the decedent. The allowing of this amendment was wholly within the discretion of the trial judge. To sustain their exception of no right or cause of action, counsel for defendant cite us to Blackburn v. La. Railway & Navigation Co., 128 La. 319, 327, 54 So. 865. This case sustains their position, but it also sustains the trial judge in allowing the plaintiff to amend his petition so as to include the necessary allegation that decedent left no widow or children.

Register et ux v. Harrell, 131 La. 983, 60 So. 638, holds the same thing and upholds the trial judge in the exercise of his discretion in REFUSING to allow the plaintiff to amend the petition. In Stearns v. Love Drilling Co., Inc., 5 La.App. 174, it was held that the plaintiff must allege the fact that no widow or minor children survive, but plaintiff was allowed to amend the petition accordingly.

We think it will be conceded that, pending the consideration of an exception of no cause or right of action by a trial judge, the plaintiff may always be allowed to file the necessary amendment to the petition to meet the objection of the exceptor, provided the trial judge exercised his discretion in so allowing the amendment. And by the same course of reason we hold that if the trial judge has WRONGFULLY overruled an exception of no cause or right of action, the plaintiff may be allowed in the discretion of the trial judge to amend his petition to meet the objection of the exceptor, and this may even be done after the prescriptive period, provided, however, that in this event the amendment does not change the issue and does not allege a NEW cause of action.

The exception of no cause or right of action filed on February 24, 1930, should have been sustained as to Mrs. C. B. Myers, the only plaintiff left in the case, for the reason that up to that time the petition contained no allegation that the decedent left no widow or minor children, but since it was overruled, the filing of the amendment to the petition setting forth the necessary allegations remedied the defect and caused the petition as amended to set forth a complete right and cause of action.

In this exception of February 24, 1930, counsel for defendant contend that, since plaintiff C. B. Myers had dismissed and abandoned the suit for himself, the damages, if any could be recovered, would belong to the community of acquets and gains existing between plaintiff and her said husband, that plaintiff, mother of decedent, had no right to prosecute this suit and stand in judgment. We do not agree with this contention. Article 2315 of the Revised Civil Code gives this right of action to "the surviving father and mother or either of them." (Boldface type ours.) Under the plain wording of the Code either C. B. Myers or his wife could have brought this suit alone in the first instance. This being true, after the two of them had brought it jointly the dismissal of his interest by the father does not prevent the mother remaining and prosecuting her suit in her own name and in her own right. In Robertson et ux v. Town of Jennings, 128 La. 795, 803, 55 So. 375, 378, Justice Monroe said:

"Beyond that they each had the right of action which they are asserting, and which is conferred upon them directly by the statute, and the husband had, moreover, the right of action which as master of the community he possessed before the statute in question (or Act No. 71, of 1884, which, preceded it) was adopted, for the recovery of the expense to which the community was subjected...