Caramonta v. De Salvo

7 Pelt. 406, 1923 La. App. LEXIS 129

• Court: Louisiana Court of Appeal
• Decided: February 19, 1923
• Docket: No.8968
• Status: Published

Opinion

Sam Caramonta vs Prank De Salvo

No.8968

Charles F.Claiborne,Judge.

On motion to dismiss for want of jurisdiction.

The allegations of plaintiff's-petition are that- the defendant,Frank De Salvo,is indebted unto him in the sum of $10,000 for this: that on June 28th 1922 the said De Salvo,in defendant's barver shop,and in the hearing of a large number of persons made the following statement:to petitioner:Vou robbed me of $2.75 six months ago^and you have been robbing me all along:" that said statement is slanderous and false,and uttered with a view of damaging plaintiff's reputation and good name.

The defendant admitted having spoken the words but pleaded provocation.

There was judgment in favor of defendant dismissing plaintiff's demand.

Plaintiff has appealed.

In this Court the defendant and appellee has moved to dismiss the appeal on several grounds:

1st Because this Honorable Court is without jurisdiction, rations materias,as under the Articles of the Constitution of 1921,the claim of the plaintiff and appellant,not being one for personal injuries and being one for damages in excess of two thousand dollars•"

There are other grounds urged for the dismissal of the appeal which our conclusions upon this point render us incompetent to oonsider.

The Constitution of 1921 in fixing the jurisdiction of the Court of Appeal for the Parish of Orleans,provides: Article VII- Section 77,P.59 : " The jurisdiction of the Court of Appeal for the Parish of Orleans shall be the same as that-of the Courts of Appeal for the First and Second Circuits,exoept as otherwise provided herein for appeals from the City Courts for. the Parish of Orleans''.

Article VII,section 29,P.46 : " The Courts of Appeal,except as otherwise provided in this Constitution, shall have appellate Jurisdiction only which jurisdiction shall extend to all cases, Oivil and probate,of which the Civil District Court for the Parish of Orleans,or the Dlstriot Courts throughout the State, have exclusive original jurisdiction,regardless of the amount involved,or concurrent jurisdiction exceeding one hundred dollars exclusive of interest,and of which the Supreme Court is not given jurisdiction,except as otherwise provided in this Constitution,and all appeals shall be both upon the law and the facts." Article VII- S 3 of Section 10 P.39 :

" It ( the Supreme Court ) shall have Appellate jurisdiction in Civil• Bésti'ée'b suits where the amount in dispute,or the fund to’ be distributed,irrespective of - the amount therein .claimed,shall exceed two thousand dollars exclusive of interest ^ 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 heir's or legal representatives,arising out of the same circumstances ; nor shall such appellate jurisdiction extend to any suit for compensation under any State or Federal Workmen's Compensation law,or employer's liability act ;provided,that appeals properly granted to the Supreme Court,in such excepted caseB,prior to the adoption of this Constitution shall be finally disposed of by said Court."

We are of opinion that this Court has afjellate jurisdiction of suits for damages in excess of $2000 only when the damages claimed result from " physical injuries inflicted upon the person"and that the remaining words of the clause embrace only such other damages to thé^property of the plaintiff as may arise out of the aamá circumstances that oaused the physical Injury to the person.

The object was to confer jurisdiction upon the Court of Appeal for all the damages,to the person and to the property which arose frok the circumstances that brought about the phy-sioal injuries,so that the damage to tha^ropertv^ij; any,slguld ' be determined by the same Court that passed upoiíwhj^ja^ége to the person,so as to create no conflict of opinion. Je are therefore of opinion that' unless the' damages in excess of two thousand dollars result /from physical injuries to the serson,or from injuries to the^property,arising out of the same cirsumstances,th&s Court has no jurisdiction.

Damages resulting from Blander cannot be said to be physical.They affect the fame,credit and reputation of the i-l plaintiff,and may cause moral anguish,but do no physical injury A to the person.

Courts must notice ex proprio motu of the want of jurisdiction.

a La.Dig.P.539 S 520-24 A 94-33 A 339-35 A 346-36 A 418 37 A 41-39 A 113-45A 1316-48 A 1433.

The Court of Appeal properly dismissed an appeal in a j^oase involving more than §2,000 - 51 A 1311 .

The plaintiff religa upon 40 4 424 and 45 A 833 holding pfí * si P ' T 1 r ' .I that aotions for slander -are^basad upon a isle 0.C.2315 - That tx ,ay bejbut those decisions do not hold that slander is a physical // injury.

He also relies upon the case of the Times Democrat vs Nozee 138 Fed 761 where it was held that damages from libel d slander are "personal injuries " .The same may be said of ■t case.

Having arrived at the conclusion,that this Court has jurisdiction of this appeal,we cannot pass upon the other lestions involved in'the motion to dismiss.

But.we are not obliged to dismiss the appeal.Under Act f 1912 P.25 we have the right to transfer the case to the

It is, therefore ordered that this case he transferred to the Supreme Court^and that the record herein he filed in said Court within fifteen days from the time the decree herein shall heoome final;the costs of appeal to this Court to-he paid hy the appellant.

Case transferred to Supreme Court.

February 19th 19S3.