Dinkins v. Prescott & Mehrhoff Co.

7 P.R. Fed. 271

Opinion

HAMILTON, Judge,

delivered, the following opinion:

There was an amended complaint filed in this cause and to this bas been interposed a demurrer setting up several grounds.

1. Saying that tbe amended complaint does not state facts sufficient to constitute a cause of action is a general demurrer wbicb, under previous decisions of tbis court, will not be considered.

2. Tbe second ground alleges that tbe complaint shows it is barred by tbe provision of § 6 of tbe employers’ liability act, § 921 of tbe [Revised Statutes of Porto Pico.' Tbe contention of tbe demurrant is that tbe complaint does not allege notice of time, place, and cause of injury, signed by tbe person entitled to recover and given to tbe employer witbin thirty days after tbe accident. Tbe law provides that no action shall, be maintained for such damages unless notice is so given, “or unless it is commenced witbin six months from tbe date of the injury.” It seems that tbe accident was in March and tbe complaint filed in October, wbicb would be more than six months after tbe accident. Tbis would present a case where notice is required under tbe statute. It is true that in paragraph 8 of tbe complaint notice is alleged to have been given, but it is not alleged that tbis notice was in writing, nor are all tbe elements of tbe notice set out. Tbis ground of demurrer must be upheld so far as tbe suit is to be considered as brought by Mrs. Dinkins on her own account, and tbe complaint is defective fur- tber in not setting ont fully tbe name of tbis plaintiff. Sbe is merely described by ber husband’s name.

3. Under § 40 of tbe Code of Civil Procedure a minor is allowed six months after be attains majority to commence any action wbieb be is entitled to bring. So far as tbis suit, therefore, is to be considered as on behalf of tbe minors, it is not brought too late, whether notice was properly given or not. Tbe six years would begin to run only from tbe majority of the minors. Perez v. Guanica, Centrale, 17 P. R. R. 927.

4. It is further set up that tbe plaintiff has no legal capacity to sue as mother with patria potestas without judicial authority, and reference is made to law No. 33 of tbe Acts of 1911, amending art. 282 of tbe Civil Code. Section 282 refers to tbe duties of a tutor, and under § 237 “tbe object of tutorship is tbe custody of tbe person and property, or if only tbe property, of such persons who, not subject to patria potestas, are incapable of governing themselves.” It is true that tbe act referred to covers other subjects than tutorship, but none of them define or limit the powers of tbe parent possessing patria potestas so as to affect tbe case at bar. Section 229 of tbe Civil Code is amended by tbis act so as to require tbe parent to obtain authority of court before alienating or encumbering real property of tbe minor, but tbis does not apply in tbe case at bar. Tbe subject of patria potestas is a wide one into which it is not necessary to enter. Under it tbe parent is authorized in general to represent tbe minor, and no law or decision has been pointed out denying such right of representation in suits. Tbe Code of Civil Procedure, adopted by Porto Rico from western states, has been most fully construed in California. It, like tbe other Codes of that state, was to a large extent based upon tbe com mon law, and the right of patria potestas is not known at common law. It comes down, as its name implies, from Soman law, which originally gave complete control, in fact ownership, of the child and his property to the father. Many of the principles of the Roman law on the subject still survive in the Porto Rican Civil Code, in connection with which the Code of Civil Procedure has to be construed. So far as the right to sue is concerned it would seem to be covered by § 223, (1) of the Civil Code, which gives the parent the right to represent the child in all matters which are for the child’s advantage. No authority has been cited for restricting this right to matters in pais, and it is to be held as covering also suits at law. Such a right would be true even at common law, although there the suit would be in the name of the child as suing by next friend.

5. The demurrer further alleges that the complaint is uncertain in that it cannot be ascertained whether plaintiff sues under the employers’ liability act or under some general provision of the Civil Code. Uncertainty in pleading relates only to the facts. Certainty is defined as “such clearness or distinctness of statement of the facts which constitute the cause of action or ground of defense that they may be understood by the party who is to answer them, by the jury who are to ascertain the truth of the allegations, and by the court who are to give the judgment.” Bouvier’s Law Dict. s. v. Certainty. There is no requirement that a complaint shall set out the law under which it is brought, much less that it shall set out which of two laws is applicable. The law is self-executing and is to be considered as read into a complaint. The complaint in question therefore is not affected by uncertainty.

6. As between the employers’ liability act and the general law of negligence, tbis coni't has beld that the former applies to questions growing out of the relation of master and servant, and that the latter applies to all other questions of negligence. In other words, §§ 1803 and 1804 of the Civil Code, when they were adopted, covered all questions of negligence, but the legislature has since that time carved out a special system for negligence growing out of the relation of master and servant. Diaz v. Fajardo Development Co. 2 Porto Rico Fed. Rep. 152; Colon v. Ponce & G. R. Co. 3 Porto Rico Fed. Rep. 367. And to the same effect is Velez v. Flavina, 18 P. R. R. 656. It may be added that the complaint purports in so many words to be brought under the employers’ liability act.

The demurrer therefore is overruled, except as to the second ground.