Smith v. City of Alexandria , 178 So. 737 ( 1938 )

TALIAFERRO, Judge.

This is a tort action by Mrs. Florentine Smith, wife of Ralph Smith, individually and as natural tutrix of her minor son, Hil-ray Dupuis, issue of her first marriage, against the city of Alexandria, La., and the United States Fidelity &'Guaranty Company of Maryland, the carrier of the city’s public liability insurance, to cover damages to the son resulting from injuries suffered by him when accidentally run over by an automobile driven by Tom Barron, electrician of the city,, while discharging the duties of his employment.

The accident occurred on Monroe'street at or about the eastern side of its intersection with Eighth street. The time was 10 a. m., January 17, 1936. Both streets are paved. Monroe street carries more traffic. It runs easterly and westerly, and is 33.20 feet between curbs. Traffic thereon has a right of way over that on Eighth street.

Barron, returning from an errand for the city and driving one of its automobiles, a Ford V-8 coupé, was traveling easterly on Monroe street. Hilray Dupuis had crossed Monroe street from the south and had made a purchase from a store at the northeast corner of the intersection, and was attempting to again cross Monroe street towards the south and had covered about 20 feet of the distance when struck by the Barron car. The negligence of Barron, alleged to be the sole cause of the accident, consists of the following, viz.: That he' was driving his car at a reckless and dangerous rate of speed, in excess of the maximum rate fixed by laws of the city, as he approached and entered the intersection; that he failed to keep an adequate lookout for pedestrians and, on account of said excessive speed, did not maintain that near-complete control of the car’s operation which the situation and circumstances demanded; and, in amplification of the latter allegation, avers that if he had had the automobile under proper control, he could have avoided striking the child either by stopping the car or by turning it aside, on discovering his perilous position.

Defendants, in limine, interposed an exception to the capacity of Mrs. Smith, as' tutor, to institute and prosecute this suit and stand in judgment therein. The exception was overruled. It is moderately urged here.

Defendants deny all the acts of negligence and carelessness charged against Barron, and affirmatively aver freedom therefrom on his part as a cause or contributory cause of the accident. They aver further that the accident, from Barron’s standpoint, was unavoidable, because said child suddenly, negligently, and carelessly darted across the street in. front of his car, and from behind another car moving westerly, within such close proximity that it was impossible for him to so control the movements of his own car as to avert striking the boy; and this, too, notwithstanding that he was at the time driving at a safe and reasonable rate of speed and applied his brakes instantly on discovering the boy’s perilous situation. It is specifically denied also that the injuries to the boy were or are of the serious character, nature, and duration as by plaintiff contended. In the alternative, the contributory negligence of. the boy, in the respects above mentioned, is set up in bar of plaintiff’s recovery.

Defendants prosecute this appeal from a judgment against them for $2,735. Plaintiff, feeling aggrieved at the quantum, here prays for more.

Exception to Capacity to Sue.

Plaintiff was first married to Armand Dupuis. The- minor, Hilray Dupuis, according to the record before us, is the issue of that marriage. A final divorce was rendered between the parties on June 25, 1934. It was procured by the wife. It is silent as regards the custody of the child. Thereafter, Mrs. Dupuis married. Ralph Smith. In December, 1936, she qualified in Rapides parish as natural tutrix of Hilray, and the present suit was promptly instituted. The exception attacks the appointment of Mrs. Smith as tutrix, as being absolutely null, void, and of no effect because, at the time, the father of the minor was living; and avers that he alone is entitled to be qualified as its tutor since its custody was not given the mother by the final divorce decree, and also because she has remarried. The appointment is also attacked on the ground that the Ninth judicial district court of Rapides parish was .without jurisdiction to appoint a tutor to the child for the reason that its legal domicile was in A-voyelles parish, the domicile of the father. In the alternative, the appointment is attacked as being null and void, because it was not previously authorized by a family meeting, and, further, for the reason that Ralph Smith was not appointed as cotutor.

Exceptors cite no law or decisions to support their position. They simply call our attention to the filing of the exception and state that they have not abandoned it.

Defendant in exception asserts the legality of the attacked appointment; and, alternatively, argue that if not entirely legal, it may not be collaterally attacked.

Article 157 of the Revised Civil Code, as amended, provides that in cases of separation and divorce, the minor children, issue of the marriage, shall be placed in care of the parent in whose favor judgment has been rendered, “unless the judge shall, for the greater advantage of the children, order that some or all of them shall be entrusted to the care of the other party.” It also provides that “the party” to whom has been intrusted the care of a child or children shall of right become natural tutor or tutrix of such child or children to same extent as if “the other party had died.” Plaintiff was entitled to have her superior right to the care and custody of said minor awarded to her by the judgment of divorce in her favor. The absence from that judgment of such a decree did not divest her of this right. She could assert it thereafter. The question was simply left open. Whitbeck v. Whitbeck, 170 La. 418, 127 So. 888, 889. Counsel for plaintiff rely mainly upon Lemunier v. McCearly, 37 La.Ann. 133; but as regards that case, on the question under discussion, the court in the Whitbeck Case, in passing, said:

“The decision in Lemunier v. McCearly, therefore, is not authority for the proposition that a decree of divorce or of separation from bed and board is, of itself, when silent on the subject of the care and custody of the children of the .marriage, an order to deliver them into the care and custody of the parent in whose favor the decree was rendered.”

Be this as it may, the mother appears to have retained and exercised parental care, control, and custody of the person of the minor after the divorce, and while residing in Rapides parish, and this right was confirmed to her when the district court of that parish recognized her as being entitled to qualify as its natural tutrix. This recognition could • only be conferred upon her as an incident to her superior right to the care and custody of the child; and, in effect, the court awarded to her the care and custody of the child when it permitted her to qualify as its natural tutrix.

The record does not disclose the domicile of Armand Dupuis, the father, when plaintiff qualified as tutrix. In the absence of such proof, we are not authorized to assume that it was not in Rapides parish. This is said in response to the allegation that the district court was without jurisdiction to appoint a tutor to Hil-ray Dupuis. However, our view of the. matter removes this question from the case as an important one.

Plaintiff is now functioning as the natural tutrix of her son under a solemn judgment of the court of her domicile. Such a judgment carries with it the force of res judicata, and its legality may only be assailed, in a direct action by one having a clear right to so do. It may not be collaterally attacked, as is attempted in this cause. Gandy et al. v. Caldwell, 169 La. 870, 126 So. 221; Robinson v. Scharfenstein & Son et al., 148 La. 364, 86 So. 915; Succession of Keller et ux., 39 La.Ann. 579, 2 So. 553. In this case, the court emphatically states the rule to be: “Now, one of the most familiar rules of our jurisprudence is to the effect that the correctness or regularity of a judgment of a competent court appointing a tutor cannot be collaterally reviewed or questioned, even by the court which has made the appointment.”

We find no merit either in the other points raised by the exception, and are of the opinion that it was properly overruled.