Luke v. Caddo Transfer & WareHouse Co.

WEBB, J.

This is an action in damages for personal injuries alleged to have been sustained by plaintiff as the result of defendant’s fault.

Plaintiff alleged, in substance, that, while he was lawfully riding on a truck owned and being operated by defendant, the driver of the truck had driven it against a brick post supporting a building, demolishing the post and causing a part of the building to collapse, and that the brick and debris from the building fell upon him, resulting in fracturing the sixth and seventh ribs on his left side and the transverse process on the left side of the lumbar spine with a displacement of same, and that as a result of the injuries he had been confined to his bed for ninety days, and that he had been seriously and permanently disabled to do any work; and he prayed for judgment against defendant in the sum of $7,044.50, which was itemized as follows: sanitarium bills, $39.50; physicians’ fees, $125; loss of time, $480; physical pain and suffering, $1500; loss of earning power, $3500; and mental pain and suffering, $1500.

Defendant filed a plea of prescription of one year, and plaintiff admitted that the suit had been brought one day after the expiration of one year from the date of the accident and injury.

However, the plea was referred to the merits, and defendant answered, pleading that the petition failed to state a cause of action and again pleading prescription, as above, and otherwise denying plaintiff’s allegations. And the case being tried and submitted, judgment was rendered in favor of plaintiff for $1500, and defendant appealed.

The stenographic notes of the evidence introduced on trial of the case, or on which it was submitted, were lost or misplaced, as appears from an agreement of counsel in the record which reads as follows:

“This cause was tried in part on the evidence in the case of Hollingsworth B. Barrett versus Caddo Transfer & Warehouse Co., and the note of evidence has been misplaced. The District Court rendered judgment for $1500.00 and there is no contention as to the amount of the judgment if defendant is liable at all. The case is brought to this court solely on the plea of prescription of one year, which was overruled or referred to the merits by the District Judge; and this note of evidence being unnecessary to determine this point, it is agreed between counsel for plaintiff and counsel for defendant that the transcript be filed and the case considered by the court without this note of evidence.”

Counsel, in presenting the cause, have considered only the plea of prescription. It is evident, however that the appeal having been taken after trial on the merits, that the appeal was from the entire judgment and not merely from any ruling that the court may have made on the plea of prescription; and the appeal being thus taken, it was essential, we think, that the stenographic notes of the evidence should have been brought up with the record, or that a statement of the facts should have been made (Parish of St. Martin vs. Baker, 30 La. Ann. 1092).

However, if it could be said that the cause could be brought up on appeal, where the cause has been tried and considered on the merits, solely for the purpose of determining the correctness of a ruling on an exception or plea which had been referred to the merits without objection, we think it would be essential that there should be a statement of the facts relevant to the exception’ or plea, as it cannot be said that the court may determine whether a plea should or should not be sustained without considering the facts relevant to the plea.

There is not any such statement in the record. Neither is there an agreement that the court should accept the allegations of fact contained in the petition, insofar as relevant to the plea, as true and inclusive, or whether the allegations should be thus considered, except as changed by the admission that the suit was brought one day after the expiration of one year from the date of the accident and injury, ■ and under the circumstances we must decline to consider the case, and it is therefore ordered that the appeal be dismissed.