Potter v. Brein

• Decision Date: 17 December 1973
• Docket Number: No. 9614,9614
• Citation: Potter v. Brein, 289 So.2d 309 (La. App. 1973)
• Parties: Mrs. Joyce Bourg POTTER, Indiv., etc., et al. v. Gordon J. BREIN et al.
• Court: Court of Appeal of Louisiana

Page 309

289 So.2d 309

Mrs. Joyce Bourg POTTER, Indiv., etc., et al. v. Gordon J. BREIN et al.

No. 9614.

Court of Appeal of Louisiana, First Circuit.

Dec. 17, 1973.

Ralph E. Orpys, New Orleans, for appellants.

John J. Hainkel, Jr., New Orleans, for appellees.

Before LOTTINGER, BLANCHE and CRAIN, JJ.

BLANCHE, Judge.

Plaintiff, Mrs. Joyce Bourg Potter, instituted this suit to recover damages for personal injuries sustained by her minor daughter, Jury Renee Burson, resulting from burns suffered by the child when her clothing ignited as she stood near a gas heater. Cited as defendants are Gordon J. Brien (erroneously referred to as 'Gordon J. Brein'), owner of the house where the accident occurred; Southern Farm Bureau Casualty Insurance Company (erroneously referred to as 'Farm Bureau Insurance Companies'), liability insurer of the owner; and Albert Griffin, lessee of the house. The accident took place on March 9, 1969, at the rental house located at 402 Wilson Avenue in Houma, Louisiana, when Judy Burson, age six years, was a guest of Mr. and Mrs. Albert Griffin.

The trial court dismissed plaintiff's suit as to defendants, Gordon Brien and Southern Farm, after sustaining an exception of no right or cause of action, leaving defendant, Albert Griffin, as the sole defendant in the suit. The plaintiff has appealed from this judgment. We reverse.

Plaintiff's petition alleges that the defendant, Gordon J. Brien, was the owner of the house where the accident occurred and that Brien was insured by the defendant, Southern Farm. It further alleges that the accident was caused by the negligence of the defendant Brien in that he furnished the leased premises with dangerous and improper heating equipment. The foregoing allegations state a cause of action against both of these defendants.

A review of the record reveals that the evidence taken on the exception related solely to whether the right or remedy sought by plaintiff could be exercised against defendant Brien and his insurer . The introduction of such evidence for that purpose was inadmissible. ¹ There was no evidence challenging the plaintiff's capacity to bring the suit. The general policy in Louisiana is against the piecemeal trial of suits on their merit issues. The case of Babineaux v. Pernie-Bailey Drilling Company, 261 La. 1080, 262 So.2d 328 (1972), contains an excellent discussion of the purposes of the exception of no cause and of no right of action and states the law applicable to the instant case:

'There has been much discussion about the purpose of the exception of no right of action, and many attempts to differentiate that exception from the exception of no cause of action. One of the best statements of the definition of no right of action and of the basis of the distinction between it and no cause of action was given by the late Henry George McMahon: 'The former (no cause of action) is used to raise the issue as to whether the law affords a remedy to anyone for the particular grievance alleged by plaintiff; the latter (no right of action) is employed (in cases where the law affords a remedy) to raise the question as to whether plaintiff belongs to the particular class in whose exclusive favor the law extends the remedy, or to raise the issue as to whether plaintiff has the right to invoke a remedy which the law extends only conditionally.' McMahon, The Exception of No Cause of Action in Louisiana, 9 TulL.Rev. 17, 29--30. See also McMahon, Parties...