Norwood v. Lake Bisteneau Oil Co.

83 So. 25, 145 La. 823, 1918 La. LEXIS 1760

• Court: Supreme Court of Louisiana
• Decided: May 27, 1918
• Docket: No. 22982
• Status: Published

Opinions

On Motion to Dismiss.

LECHE, J.

Plaintiff, alleging that personal injury was inflicted upon himself by the negligence of defendant, sues for damages in the sum of $5,SQ0. He further alleges that the Employers’ Liability Act, adopted by the General Assembly of this state and designated as Act No. 20 of 1914, has no application to his demand for the reasons: (1) That although he was, at the time of his injury, in the employ of defendant, his injury was not received while performing any service incidental to or arising out of his employment. (2) That said act is unconstitutional for various reasons which he proceeds to specify. He then alleges in the alternative, in case said act is decreed constitutional and applicable to his demand, that he is entitled to be paid the sum of $1,125 in accordance with the provisions of said act. He accordingly prays for judgment in the sum of $5,-800, and in the alternative for $1,125.

Defendant pleaded several exceptions, which were overruled, and, after answer filed, the case was tried on its merits. Erom a judgment in favor of plaintiff for $750, defendant took the present appeal.

Plaintiff now moves to dismiss on the grounds: (1) That the amount in dispute is less than $2,000; and (2) that the Employers’ Liability Act, under which he recovered, was upheld by the court and declared constitutional.

Opinion.

[1] Plaintiff, in his motion to dismiss, seems to have abandoned that part of his cause of action upon which he based his demand for damages in the sum of $5,800, for that is the only theory upon which he can assort that the amount in dispute is less than $2,000, and, if we are correct in that assumption, this abandonment and his acquiescence in the judgment rendered is not shown by the record and has only taken place after defendant took the present appeal. The record does show an admission on the part of plaintiff that the particular service which he was rendering at the time he was injured was being performed in the course of his employment, and that admission debars him on appeal from claiming that the Employers’ Liability Act does not apply to his demand for that particular reason; but there is nothing in the record that would debar him from urging on appeal that the Employers’ Liability Act does not apply to his demand for the second reason pleaded- by him, viz. its uneonstitutionality. So that at the time the judgment was rendered the matter still subject to be contested between the parties was whether plaintiff was entitled to damages ex delicto in the sum of $5,800, or whether he was entitled to compensation in the sum of $1,125, and such a matter, being exclusively within the appellate jurisdiction of this court, could be appealed to no other court.

Appellate jurisdiction must be determined by the amount in contest at the time the judgment appealed from was rendered by the lower court. See Wolf v. Thomas, 137 La. 833, 69 South. 269, and authorities therein cited. It would be illogical and contrary to law and equity to hold that, after an appeal has been taken, an appellee may, by abandoning part of his demand, or by acquiescing in that part of the judgment which went against him, either deprive the appellant of his right of appeal or change the forum to which the appeal should be carried. The rights of an appellant to an appeal cannot thus be made to depend upon the will of the appellee. That is the reason why we held in the case of Alexander v. Morgan, 130 La.- 381, 58 South. 13, that a defendant, who has “been sued for an amount within the jurisdiction of this court, cannot be deprived of his appeal by the acquiescence of the plaintiff in a judgment for an amount below that required to confer jurisdiction.”

The motion to dismiss is overruled.