Opinion
No. 5738.
January 31, 1977.
APPEAL FROM TWENTY-EIGHTH JUDICIAL DISTRICT COURT, PARISH OF LaSALLE, STATE OF LOUISIANA, HONORABLE EDWIN R. HUGHES, J.
Wm. Henry Sanders, Jena, for plaintiff-appellant.
George George, by John G. Munoz, Baton Rouge, Gist, Methvin Trimble by David A. Hughes, Alexandria, for defendants-appellees.
Before HOOD, DOMENGEAUX and HUMPHRIES, JJ.
Plaintiff-appellant, Carl Stretton, an employee of Penrod Drilling Company, brought this maritime personal injury action against Charles Guy Paul, also an employee of Penrod, and Hartford Accident Indemnity Company in LaSalle Parish. In paragraph one of the petition the plaintiff alleged that:
"Hartford Accident Indemnity Company, a foreign insurance company, authorized to do and doing business in the State of Louisiana, and at all material times herein having issued to Penrod Drilling Company and Charles Guy Paul a policy of insurance"
Hartford Accident Indemnity Company filed an Exception of Improper Venue which the trial judge sustained, dismissing plaintiff's suit. From this adverse judgment plaintiff has appealed. We reverse.
Plaintiff's suit was instituted in LaSalle Parish, the domicile of himself and defendant, Charles Guy Paul. Neither Penrod Drilling Company nor Hartford Accident Indemnity Company are residents of LaSalle Parish. Defendants' Exception of Improper Venue is based upon C.C.P. Art. 73, which provides as follows:
"Art. 73. Action against joint or solidary obligors
An action against joint of solidary obligors may be brought in any parish of proper venue, under Article 42, as to any obligor who is made a defendant.
If the action against this defendant is compromised prior to judgment, or dismissed after a trial on the merits, the venue shall remain proper as to the other defendants, unless the joinder was made for the sole purpose of establishing venue as to the other defendants."
The entire matter was considered in the District Court upon the contention by Hartford that neither Hartford nor Penrod were domiciled in the Parish of LaSalle and that Paul was made a defendant for the sole purpose of creating venue in LaSalle Parish under the theory that joint tort feasors may be sued in the parish where either is domiciled. Strangely enough the attorney for the plaintiff also considered this to be the sole issue in District Court and on appeal.
The trial judge found (we do not say that this was in error) that Paul was made a defendant for the sole purpose of establishing venue as to defendant Hartford, on the basis of joint tort feasors.
We are of the opinion that the facts of this case, in its present stage, are not correlative of the circumstances contemplated by the proviso in C.C.P. Art. 73. At the present stage of the proceedings, there has been no compromise between the plaintiff and Paul and there has been no dismissal after trial on the merits as to Paul. We are of the opinion that this matter can only be disposed of by C.C.P. Art. 76 which provides in part as follows:
"An action on any other type of insurance policy may be brought in the parish where the loss occurred or the insured is domiciled."
We do not think that we can go beyond Art. 1 of the pleadings and C.C.P. Art. 76.
The petition states that Paul is insured by Hartford and Art. 76 states that an action against an insurer may be brought in the domicile of the insured. It is not even necessary, although done in this case, that the insured by made a party defendant.
For the above reasons the judgment of dismissal of the plaintiff's petition is reversed and this matter is remanded to the District Court for further proceedings. The defendant-appellee is cast for all costs of this appeal.
REVERSED AND REMANDED.
DOMENGEAUX, J., concurs and assigns reasons.
In addition to the reasons cited by the majority, I am of the opinion that the issues presented by this appeal can be resolved by a proper application of LSA-C.C.P. Art. 73.
In his written reasons for judgment the trial judge stated as follows:
"Since Paul is a resident of LaSalle Parish and venue would be proper as to him under Code of Civil Procedure, Article 73, venue would be proper as to Hartford Accident Indemnity Company if they are joint tort feasors. However, the second paragraph of Article 73 provides that in such instances venue is not proper if `. . . the joinder was made for the sole purpose of establishing venue as to the other defendants'."
The trial judge found (prior to compromise of dismissal after trial), as a matter of fact, that plaintiff's only purpose for naming Charles Guy Paul as a co-defendant was to obtain proper venue in LaSalle Parish as to Hartford. This factual finding notwithstanding, I feel that the trial judge erred in his construction of LSA-C.C.P. Article 73.
In his above quoted written reasons, the trial judge excluded the initial phrases of LSA-C.C.P. 73(2) which are crucial to an understanding of the statute and its operation.
Paragraph 2 of the article begins:
" If the action against this defendant is compromised prior to judgment, or dismissed after a trial on the merits,. . .." (Emphasis added).
I am of the opinion that the above quoted phrase must be read in connection with the remainder of paragraph 2 and sets forth a requisite (compromise or dismissal after trial) which must be met before an inquiry can be made into plaintiff's motives for joining a particular co-defendant. Statutes must be read as a whole, and portions thereof should not be taken out of context. See Dore v. Tugwell, 228 La. 807, 84 So.2d 199 (La. 1955); State v. Rones, 223 La. 839, 67 So.2d 99 (1953); Quick Finance Service, Inc. v. Youngblood, 320 So.2d 239 (La.App. 4th Cir. 1975).
An exception based upon improper venue is declinatory in nature (LSA-C.C.P. Article C.C.P. Article 928). At first glance, it may appear enigmatic to require a defendant to file an exception in limine litis and wait until after a compromise or trial to have its merits determined. However, venue under LSA-C.C.P. 73 is based upon the existence of a joint or solidary obligation between the resident and non-resident defendants. The determination of such a relationship often addresses itself to the very crux of the litigation, and it is undesirable that such a matter should be decided on the hearing of an exception. Thus, is essence, LSA-C.C.P. Article 73(2) requires that the exception of improper venue raised by the non-resident defendant (alleged joint or solidary obligor) be raised in limine but referred to the merits of the case.
Therefore, I feel that the trial judge should have considered Hartford's exception to venue if and only after plaintiff's case against the resident defendant, Charles Guy Paul, had been compromised or dismissed after trial on the merits.
Therefore, I find it unnecessary to rely upon the provisions of LSA-C.C.P. Art. 76 to support plaintiff's contention of proper venue at this stage of the proceedings.
For the above and foregoing reasons, I respectfully concur.