Broussard v. Rosenblum

5 La. App. 245

• Court: Louisiana Court of Appeal
• Decided: July 15, 1926
• Docket: No. 10,062
• Status: Published

Opinions

JOHN MAY, judge ad hoc.

On March 12, 1924, plaintiff, Miss Louise Broussard, filed suit against Leo Rosenblum for Nine Thousand ($9000.00) Dollars damages for personal injuries alleged to have been suffered in an automobile accident, which occurred September 23, 1923, such suit being No. 151,552 of the docket of the Civil District Court for this parish.

. In Paragraph 1 of plaintiff’s petition it is alleged:

“That Leo Rosenblum, of lawful age and a resident of this city and state, is justly and truly indebted unto your petitioner in the full sum of Nine Thousand ($9000.00) Dollars, etc.”

Domiciliary service was made upon Leo Rosenblum on March 13, 1924, by leaving the petition and citation at his residence in the hands of his mother.

On March 25, 1924, Leo Rosenblum, appearing through counsel, filed an answer admitting or denying, paragraph by paragraph, the allegations of the petition.

The answer to Paragraph 1 of plaintiff’s petition is as follows:

“That defendant denies specifically each and every allegation of fact contained in Article 1 of plaintiff’s petition, just as if he had' separated each' individual allegation >and denied the same categorically.”

This case came on for hearing on February 12, 1925, at which time defendant presented proof of his minority.

Plaintiff's counsel then asked permission to file a supplemental petition, making defendant’s father, Hile Rosenblum, defendant, which motion was denied, and the court thereupon rendered judgment “dismissing and rejecting plaintiff’s demand as in case of non-suit”.

No appeal was taken from such judgment, but on February 19, 1925, plaintiff filed suit No. 156,575 of the docket of the Civil District Court, upon the same alleged cause of action, but against Hile Rosenblum, who thereafter, on February 27, 1925, appeared through counsel and plead: First, “No Cause of Action”, and second, the prescription of one year.

Such exceptions came on for hearing on March 11, 1925, and on March 17, 1925, the District Court rendered judgment, maintaining the Plea of Prescription, and dismissing plaintiff’s suit. •

In this second suit, namely, that brought against Hile Rosenblum, the father of the minor, plaintiff’s petition, in Articles 9, 10, 11 and 12 thereof, recites the filing of the first suit and makes the record in that suit a part of the petition. Also reviews the service of such first petition and the testimony taken in the first case, showing that such petition and citation therein were sent by Leo Rosenblum to an insurance company in this city.

The remaining portions of such articles of plaintiff’s petition are devoted to allegations of which there is no proof in the record and to the conclusions of the pleader, that under the facts alleged, prescription of the cause of action sued upon was interrupted as against the father of Leo Rosenblum.

From the judgment in the second suit, maintaining defendant’s Plea of Prescription, plaintiff has appealed and the matter thus comes before us. '

Some time after taking and perfecting her appeal, or, to be exact, on January 16, 1926, plaintiff filed in this court a plea entitled “A Plea of Estoppel as Against the Plea of Prescription Filed by the Defendant in this Cause”, to which plea are annexed a number of original and carbon copies of letters which purport to have, been written by plaintiff’s attorneys to Leo Rosenblum; by the Aetna Casualty and Surety Company to plaintiff’s counsel; by plaintiff’s counsel to said insurance company; by plaintiff’s counsel to counsel for the defendant, .and also certain inter-office correspondence between local counsel for plaintiff and plaintiff’s counsel in Opelousas, Louisiana.

Upon the day of hearing by this court, counsel for the defendant filed a motion asking that the court, for the reasons therein given, order the Plea of Estoppel' stricken from the record and returned to plaintiff.

OPINION

Plaintiff has taken no appeal from the judgment for defendant in her suit against Leo Rosenblum, a minor, and we are therefore in no way concerned with the issues therein presented, except insofar as it be plaintiff’s contention that the answer filed for or by Leo Rosenblum in that suit was in such form as to mislead plaintiff and keep her in ignorance of the proper party defendant, until prescription had run against her claim, and except further1 as to plaintiff’s contention that such suit against Leo Rosenblum and the citation to and _ domiciliary service upoij him, serve to interrupt prescription of an action against his father.

The following issues are therefore presented for our determination:

' 1st. May we consider a “Plea of Estoppel” filed for the first time in this court, and based largely upon documents attached thereto, which were not in evidence in the court of original jurisdiction?

2nd. Is the defense of minority a matter of special plea, or is it a matter of defense on the merits, or a plea which may be made at any stage of the proceeding, or a question which may be raised by way of injunction against the execution of or suit to set aside a judgment?

3rd. When suit was brought against this minor, and domiciliary service made upon him by leaving a copy of the petition, and the citation addressed to him, at his residence in the hands of his mother, did he or did his father owe any legal duty to plaintiff to appraise plaintiff of his, defendant’s minority?

4th. Does the record disclose any action by defendant, Leo Rosenblum, a minor, or by his father, Hile Rosenblum, or by counsel appearing for Leo Rosenblum, which could be deemed to interrupt prescription or to create an “Estoppel”?

5th. Did suit against Leo Rosenblum, a minor, and citation addressed to him, with domiciliary service upon him, interrupt the running of prescription of an alleged cause of action against his father?

Taking up these issues in the order named, we will first consider the Plea of Estoppel, with exhibits annexed, filed in this court.

Section 27 of Article 7 of the Louisiana Constitution of 1921 provides that “all cases on appeal to the Courts of Appeal, shall be tried on the original record and pleadings, and evidence”, and further provides that the rules of practice regulating appeals to and proceedings in the Supreme Court shall apply in the Courts of Appeal, so far as they may be applicable, unless otherwise provided.

Article 902 of the Code of Practice of Louisiana provides that although in general parties before the Supreme Court are not allowed to plead other matters than those which were before the inferior court, nevertheless, there may be a departure from this rule when the exception taken is one of those which may be pleaded at any period of a cause, and the proof of it appears by the mere examination of the record.

In Wilkin-Hale State Bank vs. Tucket, et al., 148 La. 980, 80 South. 239, the Supreme Court said that:

“The general rule applying to this case is that an appellate court reviewing a judgment of a court of original jurisdiction should not consider as evidence in the case any document that does not form a part of the pleadings and" was not offered in evidence on the trial of the case”, and again

In Wunderlick, et al., vs. N. O. Ry. & Lt. Co., et al., 143 La. 626, 79 South. 80, it is stated that:

“Ex parte allegations contained in pleadings filed in this court as to facts aliunde the transcript, cannot be considered by this court.”

See also Dailey vs. Continental Supply Co., 155 La. 113, 98 South. 859; Succession of Henry J. Forstall, 35 La. Ann. 97.

In the case of Jacobs Bros. Walkover Boot Shop vs. Prances Bel, 1 La. App. 14, this court said:

“The appellate court cannot consider documentary evidence which has not been offered in the trial court, whether the same be annexed, to a petition as part thereof, or otherwise.”

And again in O. K. Realty Co., Inc., vs. John A. Juliani, Inc., 1 La. App., p. 1, we find that:

“Afi appellate court cannot consider any document which was not offered in evidence on the trial of the case.”

It is our opinion, therefore, that while a Plea of Estoppel may be filed in and considered by this court, we cannot give any consideration whatever to letters or exhibits of any character attached to and filed with such plea, when such exhibits were not in evidence in the court below.

The Plea of Estoppel filed in the instant case is based partly upon matters appearing in the record, but primarily upon the letters attached, and while we might be able to consider so much of the plea as is based upon matters appearing in the record, such consideration would necessarily go no further than as to the matters already before us by the plaintiff’s appeal from the judgment of the District Court, maintaining defendant’s Plea of Prescription.

The next question for consideration is whether a defense of minority is a matter for special plea, or is it a matter of defense on the merits, or a plea which may be made at any stage of the proceeding, or an issue to be raised even after judgment.

Counsel for plaintiff contend that the minority of Leo Rosenblum should have been plead specially and sufficient time allowed to plaintiff to bring her evidence, and in support of this contention refer us to Article 346 of the Louisiana Code of Practice.

Turning to such article we find that the peremptory exceptions founded on law may be pleaded in every stage of the action, previous to the definitive judgment, but they must be pleaded specially, etc.

Under Article 345 of the Code of Practice, however, we find that peremptory exceptions founded on law are those which, without going into the merits of the cause, show that the plaintiff cannot maintain his action, either because, it is prescribed, or because the cause of action has been destroyed or extinguished.

We find, therefore, that the defense of “Minority” is not a peremptory exception founded on law, but even if it were, that it may be pleaded at any stage of the proceeding, or even after definitive judgment.

This brings us to a consideration of the question raised by plaintiff as to whether or not the minor or his father or his counsel were under any legal obligation to plaintiff to appraise plaintiff of defendant’s minority, and the further question whether the record discloses any action by defendant, Leo Rosenblum, a minor, or by his father, Hile Rosenblum, or by counsel appearing for Leo Rosenblum, which could be held to interrupt prescription.

An action against a minor must' be brought directly against his tutor, or against a curator ad hoc, named to defend the suit. (Code of Practice, Articles 115-116.)

It is the duty of a prospective party plaintiff to ascertain the status of the proposed defendant, and if such defendant be a minor, to proceed against such minor through his tutor or curator ad hoc.

It is true that the laws governing pleading in this state do not specifically require that the petitioner set forth the majority of the defendant, but it is of course elementary that no valid judgment can be secured against a minor personally sued and cited and we know'of no presumption of majority, nor can the status of majority be created by estoppel.

Be this .as it may, however, plaintiff, in the instant case, saw fit to allege that dedefendant, Leo Rosenblum, was of lawful age, and Leo Rosenblum, through counsel, saw fit to deny such allegation of majority by way of’answer.

Plaintiff’s counsel say that a minor is .under the supervision and control of his parents, until his majority or emancipation, and that the law charges those parents with duties and obligations most onerous in character, and even holds them liable for the minor’s torts and compels the father, or mother if the father be deceased, to appear on behalf of the minor child in every kind of civil suit in which he may be interested.

Article 235 of the Civil Code does not say that the father or mother must appear on behalf of the minor child, but that they may, as long as their children are under their authority, so appear in every kind of civil suit in which the minor may be interested.

As a matter of fact, however, the minor Leo Rosenblum was never in any danger from the suit brought against him, .and while it may be the parents’ duty to their minor child to appear and protect him in every suit that may be brought against him, it would seem to us that their failure to do so would be more a matter, between the parents and child than a proper cause of complaint on the part of the plaintiff in an unauthorized suit against such minor.

We are, however, saved the necessity of any detailed consideration of the various contentions made by plaintiff and the various authorities referred to as supporting . such contentions for the reason that this matter has already been fully considered and passed upon in the case of Jung vs. N. O. Ry. & Lt. Co., et al., 145 La. 527, 82 South. 870, in which an almost identical condition was presented.

In that case, plaintiff received certain injuries resulting from being run into by an automobile owned and driven by one H. P. Arceneaux.

.Plaintiff made demand upon and brought suit against the Pox River Butter Company, believing Arceneaux to be its agent and employee, as the name Pox River Butter Company appeared upon the automobile and upon the building where Arceneaux was employed.

The Butter Company did not, in response to plaintiff’s demand, advise her of her error, and in response to the suit, filed the equivalent of a general denial.

Upon the trial of the case, defendant disclosed and proved the fact that Arceneaux was not in its employ, and plaintiff thereupon contended that it- was defendant’s duty to advise her. of the true facts and that it should not be allowed, after prescription had run, to deny Arceneaux’s agency.

And here we quote from the opinion of Justice Dawkins upon this contention of plaintiff:

“While it would have been more courteous and it seems the natural thing to have done, for the defendant to have properly notified plaintiff that Arceneaux was not in its employ, yet, in a controversy of this kind, where the plaintiff demands a large sum of money for injuries, for which she claims the defendant was responsible, and a law suit ensues, we know of no legal obligation resting upon either side to give to the other any information or assistance, save such as is exacted under the processes provided by law. A law suit is a contest in which either side is entitled to' avail himself of all the lawful weapons at his command, and neither owes any duty to the other to disclose any part of his case.”

Plaintiff further contends, however, that the minor, Leo Rosenblum, in the instant case, was without any legal right to defend the suit against him, or to urge his minority, except by appearance in court through his father.

Under the authority of the just quoted from ease, the father was not undfcr any legal obligation to advise plaintiff of his son’s minority in order to defend his minor son in a suit in which no valid judgment could be rendered against him, and whether or not any right exists in the minor to appear through counsel and make a defense, is not, under the circumstances, an issue in this cause, for he did appear and admitted or denied every allegation of plaintiff’s, petition, including his denial of plaintiff's allegation that he, the defendant, was of lawful age.

As to plaintiff’s contention that defendant’s counsel did, by way of various and sundry delays and continuances, put off the disclosure of defendant’s minority until prescription had run .against defendant’s father, we find no substantiation thereof in the record.

In the first place, defendant did positively deny the allegation of the petition that he was of lawful age, and in the second place, according to the certificate of the minute clerk of the trial court, it ¿ppears that the case of plaintiff against Leo Rosenblum was not posted for hearing uhtil May 30, 1924, at which time it was continued to June 13, 1924, and then continued to the foot of the docket, its next posting, being, on January 15, 1925. ■ .

There is nothing in the record to show for what reasons the case was continued on May 13 and June 13, 1924, nor, at whose request such continuances were granted, although it is suggested by way of brief and in oral argument that counsel for defendant was actively engaged in the trial of a case in the Supreme Court on those days. And so far as any further continuances are concerned, we are not interested in such as the prescriptive period would have run, in any event, in September.

The last question for consideration is, did suit against Leo Rosenblum, a minor, with citation addressed to him and domiciliary service upon him, through his mother, interrupt prescription of an action against his father?

Civil Code, Article 3518, provides that a legal interruption takes place when the possessor has been cited to appear before a court of justice, etc., and in White vs. McGuillan, 12 La. 534, the Supreme Court held that the same rule applies to the prescription liberandi causa. Counsel for complainant say that citation to a defendant, no matter how informal, or insufficient to serve as the basis of a suit and judgment, nevertheless suffices to interrupt prescription. (Vernon vs. Ill. Central R. R. Co., 154 La., p. 372, 97 South. 493, and that

The law considers the fact rather than the form of judicial notice in the matter of interruption of prescription. (King vs. Guines, 118 La. 344, 42 South. 959.)

We are also referred to a number of other decisions holding that, while various forms of defective citations and services render judgment thereunder impossible, they are nevertheless sufficient to interrupt prescription. But in none of these decisions has there been a failure of “judicial notice”. ■ ■ '

This entire question is considered and discussed in the recent case of Anding vs. Texas & P. Ry. Co., et al., 158 La. 412, 104 South. 190, and in which the authorities are fully reviewed and analyzed.

In this case plaintiff first brought suit against the Texas & Pacific Railway 'Co. Seven days after the filing of suit plaintiff filed a supplemental petition, in which she alleged that she had learned that the Texas & P. Ry. Co. was in the hands of receivers, naming them, and she prayed that the company be cited through said receivers to appear and answer the original and supplemental petitions, and that there be judgment against the company and against its receivers, as such. After the filing of the supplemental petition, the clerk issued a citation directed to the company, through its receivers, summoning the company, through them, to comply with plaintiff’s demand, to answer the petitions filed by plaintiff.

Thereafter the company filed an exception of no cause of action, for the reason that at the time .of the accident, the company was in the hands of receivers, and at about the same time the receivers excepted to the suit on the ground that they had not been properly cited.

At a later date, and more than a year after the happening of the accident, plaintiff filed a second supplemental petition, in which she alleged for the first time that the accident complained of occurred while the Tailway was being operated by receivers, and that the negligence alleged was that of the receivership, and in this second supplemental petition, she prayed for judgment against the receivers and had them cited. Thereafter the receivers appeared and filed a Plea of Prescription of one year.

There were various other exceptions taken and considered but none of any interest to us in the instant case. And the court, in its opinion, considers Article 3518 of the Civil Code, providing for the legal interruption of prescription, and holds that under this article it is not necessary, in order to interrupt prescription, that the citation be technically correct, or even sufficiently correct to form the basis of a judgment, nor is it necessary that the petition state a technically complete cause of action (referring to and quoting from Guebel vs. Town of Lafayette, 118 La. 494, 43 South. 63; McCubbin vs. Hastings, 27 La. Ann. 713; King vs. Guines, 118 La. 344, 42 South. 959; Vernon vs. Ill. Cent. R. R. Co., and Boutrie vs. Director General of Railroads, 154 La. 370, 97 South. 493; and now we quote directly from the opinion of the court;

“We are also of the opinion that the original and first supplemental petitions conveyed to the receivers sufficient knowledge of plaintiff’s claim against them to interrupt prescription. The original petition stated a complete cause of action against the railway company. The first supplemental petition contained a prayer for judgment against the receivers. All that may be said to be lacking in the latter, when read in connection with the original petition, to show a complete cause of action against the receivers, was the allegation that at the time of the accident the railway company was in the hands of receivers and that the alleged accident was due to the fault of receivers instead of to the fault of the railway company. However, the original petition alleged the date of the accident, and as on that day the railway company was in the hands of receivers, and had been for four years prior thereto, the absence of that allegation did nof have the effect of preventing the interruption of prescription, for the allegation setting forth the date of the accident and the service of the petition, containing that allegation, conveyed to the receivers, knowledge, judicially, that the accident occurred under the regime of the receivership, and the demand for judgment against them conveyed to them knowledge that they were being held by plaintiff responsible for the alleged negligence and accident that occurred under tbeir regime.”

This decision goes further than any of those preceding it and comes nearest to the support of plaintiff’s contention, but even here we find that the first supplemental petition filed and served before the lapse of the prescriptive period contained a prayer for judgment against the receivers, and therefore when read in conjunction with the first petition, contained the required “Judicial Notice” to the receivers of the claim and that such claim was being made upon them.

In the instant case, the suit against, and the citation directed to, and the domiciliary service upon the minor, Leo Rosenblum, did not, in any way, constitute “judicial notice” to the minor’s father that there was any claim being made against him. In fact, no claim whatever was made against the father, Hile Rosenblum, and no matter how intimate his knowledge may have been that a suit had been brought against his son, he can in no way be deemed to have received judicial notice of a claim against himself, when such a claim was never, in fact, made. To hold otherwise would be tantamount to dispensing altogether with the necessity of “judicial notice” and demand.

For the reasons assigned, the judgment appealed from is affirmed.