Alleman v. Sentry Insurance Co. , 1972 La. App. LEXIS 6903 ( 1972 )

CULPEPPER, Judge.

This is a suit for damages for personal injuries sustained by a minor who was accidentally shot with a rifle. The plaintiff is Ivan J. Alleman, father of Patrick Alleman, the 16 year old minor who was shot. Plaintiff sues individually for past and future medical expenses. As administrator of the estate of his minor son, he seeks damages for the personal injuries suffered by the minor. Defendants are Clemille Dou-cet, father of the 17 year old minor, Michael Doucet, who was holding the rifle which accidentally discharged, and Sentry Insurance Company, liability insurer for Doucet.

A jury awarded plaintiff individually $5,000 but rejected the demands of plaintiff as administrator of the estate of his minor son. Plaintiff appealed only in his capacity as administrator of the estate of his minor son. Defendants answered the appeal, seeking reversal of the judgment in favor of the plaintiff individually.

PLAINTIFF’S MOTION TO DISMISS DEFENDANTS’ ANSWER TO THE APPEAL

Plaintiff filed a motion to dismiss defendants’ answer to the appeal insofar as it seeks reversal or modification of the judgment in favor of the plaintiff individually. Under LSA-C.C.P. Article 2133, an answer to the appeal is effective only as to an appellant and not as to an appellee. As between appellees, a judgment cannot be modified, revised or reversed except by means of an appeal, Barrois v. Noto, 215 So.2d 676 (La.App., 4th Cir. 1968).

In the present case, the plaintiff appealed only in his capacity as administrator of the estate of the minor. Plaintiff individually is an appellee. Hence, defendant’s cannot by a mere answer to the appeal seek reversal or modification of the judgment in favor of plaintiff individually.

Defendants argue that the plaintiff, Ivan J. Alleman, is one person and hence his appeal as administrator of the estate of the minor also constitutes an appeal in his capacity individually. This argument has no merit. Ivan J. Alleman filed this civil action, LSA-C.C.P. Article 421, to enforce two separate legal rights. The first is his own right to recover medical expenses, a right in which he has a real and actual interest, LSA-C.C.P. Article 681. The other right is asserted in a representative capacity as administrator of the minor, for the minor’s damages, LSA-C.C.P. Article 683. Plaintiff individually is not the same party as plaintiff in his representative capacity.

The motion to dismiss defendants’ answer to the appeal must be granted. This means that the judgment in favor of plaintiff individually in the sum of $5,000 is now final.