Myers v. Gulf Public Service Corp. , 15 La. App. 589 ( 1931 )

MeGREGOR, j.

C.B. Myers and his wife, Mrs. Lola Myers, together with their children, Gordon, Hubert, Gladys and Arliue Myers, filed suit against the defendant on June 7, 1929, for the death of Lawrence Myers on January 22, 1929, by electrocution in the ice plant of the defendant in the town of Jena, LaSalle parish, state of Louisiana. The petition alleges that the decedent, Lawrence Myers, was the son of the plaintiffs, C. B. Myers and his wife, Mrs. Lola Myers, and the brother of the other plaintiffs.

It is alleged that, upon the invitation of the defendant through its agents and employees, the senior class of the Jena High School, of which the decedent, Lawrence Myers, was a member, on the 22nd day of January, 1929, visited the ice plant of the defendant for the purpose of studying the processes used in the manufacture of artificial ice.

As' the immediate cause of the death of the decedent, it is alleged that the children of the said senior class of the Jena High School, including decedent, were led and directed across and over a large tank or a collection of several small tanks filled with water, out of which blocks of ice were manufactured. That whenever the tanks of water had been frozen into ice the blocks of ice were raised or lifted by a mechanical device overhead and conveyed to other parts of the premises. This device was operated by electricity and was conveyed along a copper wire overhead about six feet and three inches, exposed and charged with electricity. That in walking across the top of these water tanks which, it is alleged, were wet and slippery, the decedent fell, and in trying to save himself from falling, reached up and caught the live copper wire and was electrocuted.

It is further alleged that there was no sort of contributory negligence cn thei part of. the decedent, but that his death was due to the “gross carelessness and; negligence” of the defendant. That the proximate cause of the said death was the failure of the defendant, its agents and employees, to warn the decedent of the danger from the exposed or live wire. It is further alleged that the current of electricity should have been turned off while the children were in the room, particularly since the plant was not in operation during the visit of the children.

Plaintiffs sued for damages .in the sum of $50,000, based on the “anguish and mental suffering caused them by the loss of” decedent. A trial by jury was asked for and granted.

On June 24, 1929, an. exception of: (1) misjoinder, (2) vagueness, and (3) no cause or right of action, was filed. This exception was taken up and tried and sustained as to all parties except Mr. and Mrs. C. B. Myers, and as to them it was overruled.

On December 23, 1929, C. B. Myers, one of the plaintiffs left in the suit, appeared through counsel and dismissed the suit insofar as his interests were concerned.

On February 24, 1930, the defendant filed another exception setting up:

“1. That C. B. Meyers, father of the deceased Lawrence Meyers, and husband of the plaintiff, Mrs. Lola Myers or Mrs. C. B. Meyers, having voluntarily dismissed and abandoned the suit and as the damages, if any could be recovered, would belong to the community of acquets and gains existing between plaintiff and her said husband and as her husband is head and master of said community .and alone can maintain this action, the petition of the wife discloses neither right nor cause of action.

“2. Plaintiff’s petition being too vague 'and indefinite to admit of proof or to advise the defendant of her demands, discloses no cause of action.

“3. The statute of limitation having already run and all rights of action growing out of or connected with the death of the said Lawrence Meyers being barred by the prescription of one year, from the 22nd day of January, 1929, no testimony could be received or amendment allowed so as to make new parties or set up new c'auses of action and defendant specially pleads the prescription of one year in bar of all demands.”

This exception was immediately tried and overruled.

On March 17 and 18, 1930, the case was, tried by jury and verdict rendered. On March 18, 1930, after about one-third of the testimony had been taken, a supplement or amendment to the plaintiff's petition was filed and allowed. This amendment or supplement alleged that the decedent left no widow or children. The amendment was allowed over the protest of counsel for defendant.

The jury’s verdict was against the defendant and assessed the damages at $1000 and judgment in favor of the plaintiff, Mrs. C. B. Myers, for this amount and the costs of the suit was accordingly signed on March 19, 1930. The defendant has’ perfected its suspensive appeal and the plaintiff has answered the appeal and asks that the judgment be amended by raising the amount of damages to the sum of $10,000.

EXCEPTIONS FILED BY DEFENDANT

The exception filed by the defendant on June 24, 1929, was properly sustained as to Gordon, Hubert, Gladys, and Arline Myers, and should have been sustained as to Mr. and Mrs. C. B. Myers, the father and mother of the decedent for the reason that the petition did not allege that the decedent left no widow or children. But since the exception was overruled as to Mr. and Mrs. Myers, this defect was subsequently remedied on March 18, 1930, by the filing and allowance of the amendment contain-' ing the necessary allegations, even though the date of the filing of the said amendment was more than one year after the date of the death of the decedent. The allowing of this amendment was wholly within the discretion of the trial judge. To sustain their exception of no right or cause of action, counsel for defendant cite us to Blackburn v. La. Railway & Navigation Co., 128 La. 319, 327, 54 So. 865. This case sustains their position, but it also sustains the trial judge in allowing the plaintiff to amend his petition so as to include the necessary allegation that'decedent left no widow or children.

Register et ux v. Harrell, 131 La. 983, 60 So. 638, holds the same thing and upholds the trial judge in the exercise of his discretion in REFUSING to allow the plaintiff to amend the petition. In Stearns v. Love Drilling Co., Inc., 5 La. App. 174, it was held that the plaintiff must allege the fact that no widow or minor children survive, but plaintiff was allowed to amend the petition accordingly.

We think it will be conceded that, pending the consideration of an exception of no cause or right of action by a trial judge, the plaintiff may always be allowed to file the necessary amendment to the petition to meet the objection of the ex-ceptor, provided the trial judge exercised his discretion in so allowing the amendment. And by the same course of reason we hold that if the trial judge has WRONGFULLY overruled an exception of no cause or right of action, the plaintiff may be allowed in the discretion of the trial judge to amend his petition to meet the objection of the exceptor, and this may even be done after the prescriptive period, provided, however, that in this event the amendment does not change the issue and does not allege a NEW cause of action.

The exception of no cause or right of action filed on February 24, 1930, should have been sustained as to. Mrs. C. B. Myers, the only plaintiff left in the case, for the reason< that up to that time the petition contained no allegation that the decedent left no widow or minor children, but since it was overruled, the filing of the amendment to the petition setting forth the necessary allegations remedied the defect and caused the petition as amended to set forth a complete right and cause of action.

In this exception of February 24, 1980, counsel for defendant contend" that, since plaintiff C. B. Myers had dismissed and abandoned the suit for himself, the damages, if any could be recovered, would belong to the community of acquets and gains existing between plaintiff and her said husband, that plaintiff, mother of decedent, had no right to prosecute this suit and stand in judgment. We do not agree with this contention. Article 2315 of the Revised Civil Code gives this right of action to “the surviving father and mother or either of them.” (Boldface type ours.) Under the plain wording of the Code either C. B. Myers or his wife could have brought this suit alone in the first instance. This being true, after the two of them had brought it jointly the dimissal of his interest by the father does not prevent the mother remaining and prosecuting her suit in her own name and in her own right. In Robertson et ux v. Town of Jennings, 128 La. 795, p. 803, 55 So. 375-378, Justice Monroe said:

“Beyond that they each had the right of action which they are asserting, and which is conferred upon them directly by the statute, and the husband had, moreover, the right of action which as master of the community he possessed before the statute in question (or Act No. 71, of 1884, which, preceded it) was adopted, for the recovery of the expense to which the community was subjected by reason of the injury inflicted upon, and death of, the child.”

And, to make the opinion stronger and to leave no doubt as to the right of the mother to sue for the death of her child the court in writing its own syllabus of this case, in paragraph 3 said:

“The right of action conferred upon a married woman by Act No. 68 of 1902, p. 95, for the recovery of damages resulting from personal injuries, includes the right to recover for injuries to feelings as well as physical injuries. Hence a married woman, whose child loses its life through the fault of another, may recover by herself alone for mental suffering caused by such death, and the amount which she may recover becomes her separate property.”

In the case of Vincent et ux v. Morgan’s La. & Tex. R. R. & S. S. Co., 140 La. 1027, 74 So. 541, the matter of the right of the surviving mother to obtain judgment for damages in addition to what the father may obtain in the same suit is thoroughly discussed. In the closing paragraph of this case on page 1051 of 140 La., 74 So. 514, 549, Chief Justice Monroe said:

“In the case of Parker v. Crowell & Spencer Lumber Co., 115 La. 463, 39 South. 445, a father was allowed $5,000 for the loss of a minor son. In Johnson v. Industrial Lumber Co., 131 La. 897, 60 South. 608, an award of $2,326.50 in favor of a mother for the death of a minor son, of whom she had been given the custody by a judgment of separation a mensa et thoro, was increased by this court to $5000.

“In this case the father and mother have united in the suit, and the judgment of $10,000 in their favor follows the precedents established in the two cases thus mentioned.”

This clearly indicates to our minds that the father and mother each had a right of action for the death of their son. When that case was tried the mother could not have prosecuted her suit separately for her interest, but under Act No. 283 of 1928 the wife has full power to prosecute any aBd all suits that relate to her rights, of action.

Counsel for defendant contend that any damages if recovered in this case would fall into the community and that therefore the husband and father must prosecute the suit in any event. They cite us to and rely upon article 2402 of the Revised Civil Code. This does not bear up their contention. It must be remembered that Civil Code art. 2402 as it now reads was passed in 1902 and that C. C. art. 2315 as it now reads was passed in 1908 and in 1918. This being true, we take it that this article is authority for holding that the direct action of the surviving mother for the death of her son who died without leaving a widow or children is her separate property and, under Act No. 283 of 1928, she has a right to prosecute this action without the intervention or assistance of her husband. This article 2315 of the Revised Civil Code primarily says that the father and mother or either of them may recover damages sustained by them by the death cf the child. The irresistible conclusion which must be reached, therefore, is that the mother has a separate right of action if she chooses to exercise it and under Act No. 283 of 1928, she has a perfect right to do so without the intervention or assistance of her husband.

Counsel for defendant contend in their brief that this suit was brought “under Article 2315 of the Civil Code as amended by Act 159 of 1918, which provides that the right of action ‘shall survive in case of death in favor of the children or surviving spouse of the deceased, or either of them, and in default of these in favor of the surviving father and mother or either of them.’ ” In this they are in error, for we hold just as was held in the case of Robertson v. Town of Jennings, 128 La. on page 803, 55 So. 375-378:

"In the instant case the right of action of plaintiff’s child survived in their favor as a common inheritance, but they are not here asserting that right. Beyond that they each had the right of action which they are asserting and which is conferred upon them directly by the statute, and the husband had, moreover, the right of action which as master of the community he possessed before the statute in question (or Act No. 71, of 1884, which, preceded it) was adopted, for the recovery of the expense to which the community was subjected by reason of the injury inflicted upon, and death of, the child.”

Counsel for defendant urge that the amendment to plaintiff’s petition filed on March 18, 1930, should not have been allowed for the reason that it alleged a new cause of action. The amendment did not change, add to or modify in any way the “Cause of Action” as set forth in the original petition. It merely set forth the fact that gave the plaintiff her “Right of Action.” The allowance of this amendment was wholly within the discretion of the trial judge and we would not be justified in disturbing his ruling in this instance. The amendment simply set forth the status of the plaintiff more clearly. It did not change- it in any way.

PLEA OF PRESCRIPTION

In their exception filed on February 24, 1930, counsel for defendant included a plea of prescription contending that since the withdrawal of C. B. Myers as one of the plaintiffs removed from the suit the only plaintiff who would be authorized to prosecute the suit, and since more than twelve months had then elapsed since the injuries on account of which this suit was brought, all right of action on the part of anyone had prescribed and that the suit should, therefore, be dismissed at once. This plea of prescription was properly overruled for the reason that we have already held that the wife had the right to prosecute the suit in her own name and therefore no prescription will apply to her right to remain in the suit.

On March 18, 1930, after the trial had been, going on for one day, the plaintiff filed her amendment setting forth the fact that the decedent left no surviving spouse or minor children. Counsel for defendant objected to the filing of said amendment for the reason that it came too late and that it changed the issue, and for the further reason that it was barred by the prescription of one year and requiring service on the defendant. We think the amendment was properly allowed and that the objection and plea of prescription was properly overruled.

In Winsor v. Taylor, 167 La. 169, and on page 181, 118 So. 876-881, Chief Justice O’Niell said:

“Lanis v. Illinois Central Railroad Co., 140 La. 1, 72 So. 788, is authority for the corrollary, or converse of the proposition applicable to this case. In that case, the plaintiff, in her individual capacity, brought suit under the Federal Employers’ Liability Act (Act of April 22, 1908, c. 149, 35 Stat. 65; U. S. Comp. St. sections 8657-8-665 [45 USCA sections 51-59]), for compensation for the death of her husband. The statute gives such a right of action only to the personal representative of the deceased employee; and the sixth section declares that no action shall be maintained under the statute unless it is commenced within two years from the day the cause of action accrued. The suit of the widow individually was commenced within the two years, but was met with an exception of no right of action, which was sustained; but, under authority of the decision in Missouri, Kansas & Texas Railroad Co. v. Wulf, 226 U. S. 570, 33 S. Ct. 135, 57 L. Ed. 355, Ann. Cas. 1914B, 134, the plaintiff was allowed to qualify as administratrix of the succession of her husband, and to amend her petition by apipearing as personal representative of the deceased. She qualified as administratrix and filed the amended petition, appearing for the first time as personal representative of the deceased, after the two years had elapsed. The defendant pleaded the prescription of two years, but the court overruled the plea, maintaining under authority of M., K. & T. R. Co. v. Wulf, that the bringing of the suit by the widow in her individual capacity prevented the application of the statute of limitations, because the amending of the petition so as to bring the suit in the name of the administratrix and personal representative of the deceased was not the bringing of a new suit. And so we maintain in this case that the amending of he plaintiff’s petition so as to make the Third District Land Company a party deendant was not the bringing of a new suit.”

In the case of Lanis v. Illinois Central Railroad Co., which Chief Justice O’Niell cites in the above case, the plaintiff wrongfully brought the suit in her own name. On exception of the defendant it was held that she had no right to appear, but she was allowed to change her status and capacity by qualifying as administratrix. After this she amended her petition and set forth her new status and capacity after the prescriptive period and it was allowed over the protest of the defendant and in face of the plea of prescription which was overruled. If the plea of prescription was overruled in that case, it certainly should be overruled in the present case, for there has been no change of the status or capacity of Mrs. Myers, the plaintiff herein. The amendment simply alleges what was already true, that is. that the decedent left no surviving spouse or children, whereas in the Lanis v. I. C. Ry. case the plaintiff was permitted to change her status or capacity and then to amend her petition accordingly after the prescriptive period. The plea of prescription was properly overruled, therefore, by the trial judge, and we likewise overrule it as filed and as renewed in this court.