Smith v. Monroe Grocery Co.

• Decision Date: 11 December 1936
• Docket Number: 5315,5314
• Citation: 171 So. 167
• Court: Court of Appeal of Louisiana — District of US
• Parties: SMITH et ux. v. MONROE GROCERY CO. et al. JAMES et ux. v. SAME

171 So. 167

SMITH et ux. v. MONROE GROCERY CO. et al.

JAMES et ux. v. SAME

Nos. 5314, 5315

Court of Appeal of Louisiana, Second Circuit.

December 11, 1936

Rehearing denied Feb. 5, 1937.Rehearing denied Feb. 5, 1937.

Theus Grisham, Davis & Leigh, of Monroe, for appellants.

Charles B. Emery and Harry V. Booth, both of Shreveport, for appellees.

OPINION

HAMITER Judge.

A school bus transporting some 25 CCC enrollees was proceeding on the Dixie-Overland Highway between Monroe and Ruston in this state, about 9:30 on the night of August 30, 1935, and collided with a truck belonging to defendant Monroe Grocery Company, Limited. In this collision, Melvin Lee Smith and Oscar James were killed. Both of them were occupants of the bus and enjoyed the ages of 18 years.

As a result of said deaths, these suits were brought by the respective mothers and fathers of the deceased young men against the Monroe Grocery Company, Limited, and its insurer, the Trinity Universal Insurance Company. The petitioners alleged numerous acts of negligence on the part of the truck owner and its employee.

According to the court minutes, defendants filed exceptions to the jurisdiction ratione personae in both suits. Amended petitions were thereafter tendered and allowed, and such exceptions were overruled. Exceptions of no cause or right of action were then directed to the petitions. These pleadings were general in nature and did not point out or refer to any particular alleged defects of the petitions. They were submitted without argument and overruled.

Defendants in their joint answers, after reserving their rights under the previously filed exceptions, admitted the deaths of Smith and James, but denied responsibility therefor.

By agreement of counsel, the cases were consolidated, and a trial was then had on the merits. At the commencement of the trial the following objection was offered and overruled:

"Defendants object to the introduction of any testimony whatever in either of these consolidated cases on the ground and for the reason that plaintiffs' petitions, nor either of them, disclose a cause or right of action against your defendants."

From judgments in favor of the respective plaintiffs in both cases, defendants prosecuted suspensive and devolutive appeals.

In the brief of defendants' counsel in this court, it is contended that the exceptions of no cause or right of action filed in both cases should have been sustained by the trial court and the suits dismissed, for the reason that the plaintiffs failed to allege and prove that their deceased children were not survived by wives or children.

On learning of that contention, all plaintiffs, through their attorneys, moved that the cases be remanded to the trial court with instructions to permit them to aver that decedents were not survived by wives or children, and to adduce proof in support thereof. These motions allege:

"That the exception of no cause or right of action urged and relied on in this Court by appellants was originally filed in the trial court, without in any manner pointing out at what it was levelled; no argument, either orally or in brief, was made in support of it and the court led to believe that it was filed pro forma and impliedly requested that it be overruled pro forma, as is more fully evidenced by the attached affidavit of the Honorable E. L. Walker, Judge of the Third Judicial District Court, Lincoln Parish, Louisiana, which affidavit is made a part hereof."

The attached certificate of Judge Walker, above referred to, reads:

"Ruston, Louisiana,

"November 3rd, 1936.

"I, E. L. Walker, Judge of the Third Judicial District Court, Lincoln Parish, Louisiana, do hereby certify that the exceptions of no cause or right of action filed by defendants in suits No. 10,340 and 10,341 on the Docket of said Third Judicial District Court, said suits being entitled Andrew R. Smith et ux v. Monroe Grocer Company et al, and William E. James, et ux v. Monroe Grocer Company et al, respectively, were filed by counsel for defendants in Open Court, and the Court given to understand, by implication, that they were filed pro forma and would not be insisted upon.

"Further certify that when said exceptions were called for trial counsel for defendants stated in Open Court they desired to make no argument in support thereof, did not point out at what said exceptions were levelled, filed no brief in support thereof, and the Court by implication invited to overrule said exceptions pro forma.

"Further certify that said exceptions were not relied on or argued by defendants in their brief submitted on the merits of the cases.

"Further certify that if the minute entries in said cases show that said exceptions were tried, argued and submitted, said minute entries contain error to the extent that said exceptions were not tried or argued. That submission of them were for the purpose of overruling them pro forma."

Plaintiffs' motions to remand the cases were opposed by defendants for the following reasons:

1. That the cases are before this court without complaint on the part of plaintiffs of any rulings made by the trial court, and there is therefore no legal ground for remanding them.

2. That whatever rights or causes of action plaintiffs may have had for the deaths of their sons are perempted, more than one year having elapsed from the date of such deaths, and plaintiffs cannot now be permitted to allege and prove causes and rights of action in themselves not heretofore alleged.

Plaintiffs' rights to recover for the deaths of their sons are statutory, and spring from the provisions of article 2315 of the Louisiana Civil Code.

The jurisprudence of this state uniformly holds that for the mother and father to recover for the death of a child under the above-mentioned article, they must allege and prove that such decedent was not survived by a spouse or child. In other words, a petition must negative the existence of a surviving wife and children, and there must be proof in substantiation thereof, for the more distant relatives to recover. Blackburn v. Louisiana R. & N. Co., 128 La. 319, 327, 54 So. 865; Register and Wife v. Harrell, 131 La. 983, 60 So. 638; Horrell v. Gulf & Valley Cotton Oil Co., 15 La.App. 603, 131 So. 709.

This well-established principle of law is fully recognized and appreciated by plaintiffs' counsel, as is evidenced by the filing of the motion to remand. The failure to make the necessary negative averments was, according to the language of such motion, the result of counsel's oversight or inadvertency. It is reasonable to presume that had the exceptions of no cause or right of action particularized regarding the objections to the petitions, or had they even been urged and argued in the trial court, plaintiffs' counsel would have then become cognizant of their oversight and supplied the necessary allegations and proof. Although our laws do not prevent the filing of a blanket exception of no cause or right of action, the courts of this state have on several occasions frowned on such practice. The Supreme Court, in Davis v. Arkansas Southern Ry. Co., 117 La. 320, 41 So. 587, 588, said: "The exception of no cause of action in which no specific objections to the petition are set up, and which remits the plaintiff to an ascertainment of what they may be to the trial of the exception, is calculated to work injury, and in many jurisdictions the defendant is required by express statutes to specify in detail what the objections are so as to enable plaintiff an opportunity to recove the same." Unless defendants' second objection, regarding the peremption of the claims, is meritorious, we are of the opinion that plaintiffs should be permitted, in the interest of justice and by reason of the circumstances of these cases, to supply the omitted allegations and proof. The courts are liberal in allowing amendments to prevent a miscarriage of justice. Wheeler v. Rodriguez, 13 La.App. 97, 126 So. 715 716. In the case of Stearns v. Love Drilling Co. Inc., 5 La.App. 174, decided by this court with Mr. Justice Odom, now of the Supreme Court, writing the opinion, plaintiff alleged that her son was killed while working for the defendant, and that she was partially dependent on him for support. She did not make the required allegation, however, that he left no widow or children. In limine, defendant filed an exception of no cause or right of action. When the trial of the case began, defendant objected to all evidence on the ground that the petition stated no cause or right of action. This objection was overruled. No amendment of the petition was requested in the district court by plaintiff's counsel. There was judgment for defendant. In this court, defendant urged the exception of no right or cause of action. A motion to amend the petition was then filed by counsel for plaintiff. Although we were of the opinion that the exception was well founded and should have been sustained by the district court, we held that plaintiff was entitled to amend the petition. The case was ordered remanded for that purpose. The Orleans Circuit of this court, in Petty v. Jones, 10 La.App. 409, 121 So. 372, 376, remanded that case on its own motion, so that a petition defective for insufficient allegations might be amended. This action was justified on the ground that, "since the modern tendency is to cut through technicalities and to avoid unnecessary delays and expenses, that, rather than sustain an exception of no cause of action in a case of this kind, the ends of justice would be better served by remanding the case, so that, if the facts justify it, new allegations may be made." The...