O'Rourke v. O'Rourke

• Decision Date: 30 November 1953
• Docket Number: No. 20128,20128
• Citation: 69 So.2d 567
• Parties: O'ROURKE v. O'ROURKE et al.
• Court: Court of Appeal of Louisiana — District of US

Page 567

69 So.2d 567

O'ROURKE v. O'ROURKE et al.

No. 20128.

Court of Appeal of Louisiana, Orleans.

Nov. 30, 1953.

Rehearing Denied Feb. 1, 1954.

Writ of Certiorari Granted (Anna L. O'Rourke) March 22, 1954.

Writ of Certiorari Denied (Edward J. O'Rourke) March 22, 1954.

Kullman & Lang and Seme S. Klegar, New Orleans, for plaintiff-appellee.

Clarence E. Strauch, New Orleans, for Edward J. O'Rourke, defendant-appellant.

Prowell, Viosca & Reuter, New Orleans, for Dr. C. Grenes Cole, defendant-appellant.

JANVIER, Judge.

Plaintiff, Anna L. O'Rourke, seeks to recover solidary judgment against her brother, Edward J. O'Rourke, and Dr. C. Grenes Cole, former coroner of the Parish of Orleans, for damages alleged to have been sustained by her as the result of the issuance by the coroner at the instigation of O'Rourke of a 'recommendation' for her commitment to the City Hospital for Mental Diseases. She prays for $25,000 which she itemizes as follows:

For false arrest and confinement, $ 5,000

For mental anguish and suffering, 5,000

For embarrassment, humiliation and injury to her reputation, 5,000

For exemplary damages for malicious false arrest and confinement, 10,000

From a solidary judgment in favor of plaintiff and against the two defendants for $7,500, which judgment was based on a jury verdict, both defendants have appealed, Dr. Cole devolutively and suspensively, and O'Rourke devolutively only.

When the matter was first submitted to us, La.App., 50 So.2d 832, 52 So.2d 606, we entertained, and still entertain, some slight doubt as to our jurisdiction ratione materiae. Among the items of damage set forth we find none which necessarily indicates that physical injuries were sustained.

While there has been no motion or suggestion by counsel that we dismiss the appeal or transfer it to the Supreme Court for lack of jurisdiction, we cannot overlook the fact that if we have no jurisdiction ratione materiae, jurisdiction cannot be conferred on us by consent or by failure of one of the parties to raise the question. Code of Practice, Art. 92; Reeves v. Barbe, 200 La. 1073, 1074, 9 So.2d 426; Farrell v. Orleans Parish Democratic Executive Committee, La.App., 15 So.2d 524. We therefore conclude that it must be first determined that we have jurisdiction ratione materiae before we can pass to the merit of the controversy.

In Eumont v. Railway Express Agency, Inc., La.App., 28 So.2d 526, 527, there was presented a claim of $23,000 based on the following items of alleged damage: Injury to reputation, loss of liberty, embarrassment and humiliation, mental suffering and strain, legal expenses and fees incurred. We called attention to section 10 of Article 7 of the Constitution of Louisiana under which it is provided that the Supreme Court shall have jurisdiction in all civil matters in which the amount in dispute exceeds $2,000, 'except in suits for damages for physical injuries to, or for the death of a person, or for other damages sustained by such person or his heirs or legal representatives, arising out of the same circumstances * * *.' We directed attention to the fact that, by Section 29 of the same article of the Constitution, the excepted cases are appealable to this Court. Referring to the items of damages claimed, we said '* * * In none of the itemized claims are physical injuries involved, and it has been held many times that where damages in excess of $2,000.00 are sought for malicious prosecution, humiliation, mental anguish or the like, an appeal therein lies only to the Supreme Court. Clarke v. Bandelin, 6 La.App. 564; Liner v. Authement, La.App., 150 So. 72; Duplantis v. Chauvin, La.App., 158 So. 653; Spearman v. Toye Bros. Auto & Taxicab Co., 164 La. 677, 114 So. 591. * * *'

We transferred the matter to the Supreme Court and that Court did not disagree with us, but decided the matter on its merits. Eumont v. Railway Express Agency, Inc., 213 La. 1040, 36 So.2d 30.

We think it quite unnecessary to say that the inclusion in the claim of an item of $10,000 for exemplary damages is in no sense a claim for physical injuries.

However, we do notice in the petition a statement that the damages, which are itemized and are set forth above, were sustained 'in addition to suffering physically.' We also notice in the petition an allegation that, since the occurrence complained of, plaintiff has been 'mentally and physically upset,' and that 'she has suffered a setback in her recovery.' We note also from her testimony that plaintiff claims that while she was in the City Hospital for Mental Diseases she was subjected to much discomfort, and we conclude from these allegations and from this testimony that the suit to some extent is based on physical suffering and consequently conclude, though not without some doubt, that we should allow the matter to remain here rather than transfer it to the Supreme Court.

If the claim is based to any extent on physical injuries, we have jurisdiction even though the major items included in the tort claim are for mental anguish, embarrassment, etc.

We have not overlooked the decision of our Supreme Court in Newsom v. Starns, 174 La. 955, 142 So. 138, in which it was held that the Court of Appeal for the First Circuit had no jurisdiction over that part of a claim which was based on alleged damages resulting from the publication of libelous matters, although the alleged libel had resulted from the publication of statements concerning the occurrences on which the suits for damages for physical injuries were based. Concerning the claims based on libel, the Supreme Court said that they 'are not suits for damages for personal injuries, but are separate and distinct causes of action, over which the Court of Appeal has no jurisdiction, since the amount in dispute exceeds the sum of $2,000. Const.1921, art. 7, § 10 and section 29.'

The same cannot be said concerning claims for mental anguish, embarrassment, etc., resulting from acts which caused the physical injuries if there were physical injuries.

Our conclusion is that we have jurisdiction of the matter.

The record shows that on July 8, 1946, Edward J. O'Rourke, accompanied by his brother Frank, called on Dr. C. Grenes Cole, then the coroner of the Parish of Orleans and reported to Dr. Cole that 'he thought she (his sister Anna) was a mental case'; that the 'whole family thought that something ought to be done; that she should have an examination,' and requested the coroner 'to issue the necessary papers for that examination.'

It also appears that O'Rourke, in the presence of his brother Frank, who has since died, told Dr. Cole many other things about his sister on which he based his belief that her mental condition should be examined into. Most of the information which Dr. Cole says he obtained from O'Rourke is also shown on the history taken at the City Hospital for Mental Diseases which is based on information given by Edward J. O'Rourke. We quote from the report of the City Hospital for Mental Diseases as to the information which it obtained from Edward O'Rourke:

'Mental disorder began two years ago. Lives with sister-in-law, beats up the children unnecessarily. Goes around the neighborhood telling people her sister is married to a Negro mason, even wrote this to her sister. Tells everybody informant is a drunkard and owes grocery bill and grocer stopped giving him groceries. Went to District Attorney's office and made false charges against informant and other members of the family. Subpoenaed 3 brothers for July 17 at 2nd Recorders Court. Swindled brother John of $200.00. George, $400.00. Cashed six checks belonging to nephew which he signed and gave to patient supposedly to give to her brother. Stands in front of brother's (informant) and Sister's home and abuses them. Goes to neighbors and talks about brothers and sisters. No homicidal or suicidal threats or attempts.

'Personal History: Catholic, Born in N.O., here for life. Single, no children. 8th grade. No smoke, drinks once or twice a week and gets drunk, no dope. Works one day a week at Handelman's Store. Never in jail. Never in Mental Hospital. S.S. No.

'Family History: Father born in N. O., dead. (In C.H.M.D.) Mother born in N.O., dead. Seven brothers living, none dead. Two sisters living, none dead. Father, two brothers and one nephew were patients here.'

As a result Dr. Cole issued and delivered to O'Rourke a document referred to as a commitment, which document was on a printed form, the blanks being filled in in ink. The pertinent parts of it read as follows:

'Office of the Coroner

'No. 6338/14919 New Orleans, La., July 8, 1946

'I Certify, that I have examined into the mental condition of Anna L. O'Rourke Collor W age 53 sex F married S occupation None residing 1017-4th St. and believing her to be insane, I would recommend her for observation Commitment to City Hospital

'Request of Edward J. O'Rourke Brother.

'C. Grenes Cole D.M. Coroner, Ex-Officio City Physician Per Jos. S. Hogan.'

The words 'for observation' were encircled in ink. The words 'examination not insane' in ink were stricken out, as were the words 'released from parish prison'. O'Rourke delivered this document to the Police Department of New Orleans, and, at about midnight on July 10th, the plaintiff, Anna L. O'Rourke, was taken from her residence by two police officers, accompanied by Edward J. O'Rourke, who took her to the City Hospital for Mental Diseases where she was kept until about noon on the following day when she was released to her sister-in-law, Mary Jane O'Rourke, who, in writing, agreed 'to exercise proper care, protection and supervision over her.' The release states that it was requested by Mary Jane O'Rourke and was granted 'against advice of doctors.' This suit has resulted.

Plaintiff bases her claim against her brother on the allegations that he acted with malice and without probable cause, and she bases her claim against Dr. Cole on the allegations that he violated the law...