Brunet v. Deshotels , 160 La. 285 ( 1926 )

The defendants, who are father and son, were sued for damages by plaintiff in behalf of her minor daughter. It is alleged that the younger Deshotels, under a promise of marriage, which he violated, seduced the girl. He is also charged with being the father of her illegitimate child. The senior Deshotels is sought to be held under Civ. Code, art. 2318, providing that parents are responsible for the damage caused by their minor children.

Defendants filed an exception of no cause or right of action and a motion to elect. The exception was overruled, and the motion was denied on the same day. Defendants then filed their answer, and the case was regularly fixed for trial and taken up. As the beginning of her proof, plaintiff placed her daughter on the stand, whereupon counsel for defendants objected to her testimony and to all further testimony in the case, unless and until plaintiff proved that she had qualified as the natural tutrix of her daughter by taking the oath prescribed by law. The objection was sustained, and plaintiff's suit was dismissed as in case of nonsuit. She has appealed from the judgment, and defendants have answered the appeal, asking that, under and by virtue of their exception of no cause of action, plaintiff's suit be dismissed.

We think the judge of the district court erred in rendering a judgment of nonsuit, based upon the defendants' objection that plaintiff had not taken the oath required of her as natural tutrix of her minor daughter. That objection, which only questions the authority of the plaintiff to bring the suit and to stand in judgment, was not urged in limine litis, but only by way of argument on the exception of no right of action. The objection therefore was not sound, and should have been overruled, and the trial of the case allowed to be proceeded with according to law.

The exception of no cause of action, which has been brought before us for review under defendants' answer to the appeal, was leveled at the failure of plaintiff to allege that her minor daughter was mentally defective, or that she was lacking in discretion. Defendants argue that they cannot be held, because the girl alleged to have been seduced had reached the age of discretion, and was a voluntary party to the act. In support of their contention, they cite Overhultz v. Row, 152 La. 9, 92 So. 716, and that case, in turn, refers to Carson v. Slattery,123 La. 825, 49 So. 586, as authority for the proposition. Neither of these cases is appropriate here. In the Carson Case the plaintiff was a mature woman of 30 years of age, and the facts showed that she was not seduced, but was a willing participant in the act. In the Overhultz Case, the court found that plaintiff had reached the age of discretion, and was voluntarily a party to the wrong by which she was seeking to profit. The inference to be drawn from the opinion is that she was the leading spirit in the affair. Plaintiff there was actually older than the defendant's son. She had passed her majority, and he was still a minor.

In the instant case, the petition affirmatively shows that at the time of the alleged seduction the injured female was under 18 years of age. She was therefore powerless of her own free will to engage in the sexual act, because, by virtue of the provisions of Act No. 192 of 1912, an unmarried female under the age of 18 years is incapable, legally, of consenting to coition. It is true, the statute is penal in its nature, but it is nevertheless declaratory of the public policy of this state that a female under the conditions set forth therein cannot be regarded as having reached the age of discretion, in so far as acts of sexual intercourse are concerned.

Our conclusion is therefore that the exception of no cause of action was correctly overruled.

For the reasons assigned, the judgment appealed from is set aside, and it is now ordered that this case be remanded to the district court to be further proceeded with in accordance with the views herein expressed; costs of this appeal to be paid by the defendants, all other costs to await the final disposition of the cause.

ST. PAUL, J., concurs in the decree.