Register v. Harrell
| Decision Date | 16 December 1912 |
| Docket Number | 19,050 |
| Citation | 131 La. 983,60 So. 638 |
| Court | Louisiana Supreme Court |
| Parties | REGISTER et ux. v. HARRELL |
Rehearing Denied January 20, 1913
(Syllabus by the Court.)
Where a statute gives the parents a right of action for the death of their son only in case he has left no wife and children, the parents in bringing their action must allege the nonexistence of the wife or children, or both, and, where this allegation does not appear, an exception of no cause of action will lie.
The fact that a trial judge has erroneously overruled an exception of no cause of action previously does not keep him from ruling out the evidence when offered at the trial and objected to on the ground that there is no cause of action. It is always in the power of the trial judge to recall a prior ruling which is erroneous.
It is within the discretion of the trial judge to refuse to permit the filing of an amendment on the ground that it is too late after the jury has been chosen.
Under Act No. 120 of 1908, plaintiffs have a right of action for rights inherited directly by them other than the suffering of their son and his other personal rights had he lived, the extent of plaintiffs' rights to be considered on the merits.
J Howell Pugh, of Plaquemine, and Walter Lemann, of Donaldsonville, for appellants.
Borron & Wilbert, of Plaquemine, and Albin Provosty, of New Roads, for appellee.
Plaintiff and his wife brought this suit for judgment in the sum of $ 20,050, against the defendant, alleged slayer of their son William Le Roy Register, on the 10th day of October, 1908. To this action defendant pleaded an exception of no cause of action. This was pleaded on the 15th day of May, 1909. The exception was overruled. The defendant filed his answer, a general denial. Afterward the cause was called for trial before the court and jury on the 11th of April, 1911. The trial was proceeded with and resulted in a verdict of nonsuit. Just at the beginning of the trial plaintiff offered testimony, to the introduction of which the defendant objected on the ground previously urged in the exception, which had been overruled, that it was not alleged in plaintiffs' petition that plaintiffs' son was not married, and had no children. The statute under which the action was brought provides that the father and mother may sue in default of a widow and children of the deceased. That conditional provision of law was interpreted in Blackburn v. La. Ry. & Nav. Co., 128 La. 319, 54 So. 865, in which it was...
To continue reading
Request your trial