Overhultz v. Row

• Decision Date: 05 June 1922
• Docket Number: 23674
• Citation: 152 La. 9,92 So. 716
• Court: Louisiana Supreme Court
• Parties: OVERHULTZ v. ROW

92 So. 716

152 La. 9

OVERHULTZ v. ROW

No. 23674

Supreme Court of Louisiana

June 5, 1922

Rehearing Denied by Division B July 1, 1922

Appeal from Twenty-First Judicial District Court, Parish of Iberville; C. K. Schwing, Judge.

Action by Miss Cora Overhultz against Charles Row. From a judgment for defendant, plaintiff appeals.

Affirmed.

J Howell Pugh, of Plaquemine, and Walter Lemann, of Donaldsonville, for appellant.

Albin Provosty, of New Roads, and P. G. Borron, of Baton Rouge, for appellee.

OVERTON J., O'NIELL, LAND, and BAKER, Justices.

OPINION

OVERTON, J.

This case comes before us on an exception of no cause of action. The allegations of the petition, which must be accepted as true, in deciding the exception urged, show the following facts:

Wallie Row, a minor, who resides with his father, Charles Row, the defendant herein, and a man of means, formed the acquaintance of plaintiff some time in the year 1914, and from that time until April, 1918, frequently called on her at her father's home. After paying her considerable attention the two became engaged. During the existence of the engagement Wallie Row importuned plaintiff to yield to him her person. Due to the love she bore for him, and his influence over her, and the promise of marriage made, she yielded. During the engagement the two went several times to Port Allen, in the parish of West Baton Rouge, to have the marriage ceremony performed. They returned each time, however, unmarried, for the reason that the person to whom application was made to perform the ceremony informed them that he could not do so, as his books were under lock and key in the courthouse. The last trip to Port Allen for that purpose was made as late as March, 1918.

On April 6, 1918, plaintiff gave birth to a child, young Row being the father. On the day of the birth, or soon thereafter, plaintiff received a letter from young Row in which he declared his love and devotion for her, and in which he requested her to make preparations to go with him to be married. Thereafter she called upon young Row repeatedly to comply with his promise, but he declined to do so. The reason for this change towards her, plaintiff alleges, is due to the action of the young man's father, the defendant herein, who is preventing his son from marrying her.

Plaintiff then alleges, as Wallie Row is a minor, residing with his father, the defendant herein, that the father is liable to her for the damages she has sustained by the tortious act of his minor son. She fixes these at $ 25,000, though she does not itemize them, and prays for judgment accordingly.

If defendant is liable at all for the damages alleged for the seduction, that liability arises under article 2318 of the Civil Code, which reads:

"The father, or after his decease, the mother are responsible for the damages 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."

The question whether plaintiff's demand is one for damages arising ex delicto, or whether it is one for damages arising ex contractu from the breach of promise of defendant's son to marry her, has been thoroughly discussed both in the briefs and in the oral arguments made. However, we find it unnecessary to decide the question, for the reason that it is immaterial whether the demand is for one or the other, for, in our view, in neither event is plaintiff entitled to recover.

Considering the demand as one for damages arising ex contractu, plaintiff cannot recover against the father for the breach of promise by the son, for the reason that the only law that can be advanced to justify...