Flores v. Steeg Printing & Pub Co. ( 1921 )

OPIHIQH.

By his

Honor John St. Paul.

In December 1915 plaintiff's minor son was killed whilst in defendant's employ and in discharge of his duties. Thereupon plaintiffs brought their action as if for damages arising ex delicto. The "Smployers1 laibility Act” (Ho £0 of 1914) was ignored fcu bbth sides, as well as by the court, and the case was tried and disposed of as an action based on a tort. The trial judge gave judgment for defendant, and •n appeal this was affirmed. (142 La 1068)

Thereafter plaintiffs, moaning to bring this suit under the Employers Liability Aot, aforesaid, attempted to do so by a so-called "supplemental" petition filed in the same proceedings. Whereupon defendant moved to "strike from the record" the alleged supplemental petition on the ground "Causa eat finita".

How it is quite immaterial what names the parties give to their pleadings; these are, and alwayB will be, Just what their nature shows them to be, and that may be determined only by observing the purpose intended by the pleader»

Hence it is olear that the so-called "supplemental" petition is in fact and in law an original '.on, since plaintiffs are now asking a new and different relief and upon a different oauae of action; towlt, compensation of damages, arising ex contracta and not ex delioto.

December 12th, 1921.

In like manner the motion to "Strike out* was simply an exception to the manner and place of proceeding; which exception the trial judge properly sustained "without prejudice to any of the rights of defendants in rule (plaintiffs in suit) tonproooed in another action in accordance with law."

The judgment appealed from is therefore affirmed.

Hew Orleans La,