
    Lorena St. Amant MIRE, Plaintiff-Appellant, v. FIDELITY & CASUALTY COMPANY OF NEW YORK, Defendant-Appellee.
    No. 5601.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 1976.
    Concurring Opinion Sept. 30, 1976.
    On Rehearing Nov. 3, 1976.
    
      Albert L. Boudreau, Jr., Abbeville, for plaintiff-appellant.
    Broussard, Broussard & Moresi by Paul G. Moresi, Jr., Abbeville, Davidson, Meaux, Onebane & Donohoe by Timothy J. McNamara, Lafayette, Thompson & Sellers, by Charles M. Thompson, Jr., Abbeville, for defendant-appellee.
    Before HOOD, MILLER and WATSON, JJ.
   MILLER, Judge.

Plaintiff Lorena St. Amant Mire appeals the dismissal of her claim against defendant Fidelity & Casualty Company of New York on its exception of no cause of action. F&C attached its insurance policy to its exception and based its exception on a policy exclusion. We reverse.

LSA-C.C.P. art. 931 excludes the taking of evidence to support the objection that the petition fails to state a cause of action. In ruling on an exception of no cause of action, only the well-pleaded facts in plaintiff’s petition or documents attached thereto can be considered. Documents not attached to plaintiff’s petition are excluded. American Creosote Company v. Springer, 257 La. 116, 241 So.2d 510 (1970); Parks v. Winnfield Life Insurance Company, 336 So.2d 1021 (La.App. 3 Cir. 1976).

The peremptory exception of no cause of action tests the legal sufficiency of the petition. The correctness of well-plead allegations of fact is conceded insofar as the exception is concerned, and the issue is whether the face of the petition presents a case which legally entitles plaintiff to the redress sought. Hero Lands Company v. Texaco, 310 So.2d 93 (La.1975).

Plaintiff’s petition alleges that her injuries resulted from negligence on the part of the Vermilion Parish Police Jury and she is entitled to damages; that F&C issued a policy of general liability and comprehensive general insurance to the Police Jury, which policy was in full force at the time of the alleged accident; and that the policy covered the matters, persons and things which are the subject of this lawsuit. Plaintiffs petition stated a cause of action against F&C.

Had F&C presented its arguments on a motion for summary judgment, the trial court could have considered the policy defense. F&C’s effort to affirm the trial court is based on its policy defense, and that cannot be considered on this exception of no cause of action.

The judgment dismissing Mrs. Mire’s claim against F&C also dismissed the claim of third-party plaintiff Nelson St. Amant. He did not appeal the judgment but has filed a brief contending the dismissal should also be overruled as to him. Nelson St. Amant did not appeal or file an appeal bond within the time set by law, and thus the dismissal of his claim against F&C is final. LSA-C.C.P. arts. 1974, 2087, 2121, 2123 and 2124.

Insofar as the trial court judgment dismissed Mrs. Mire’s suit against F&C, the judgment is set aside and reversed. The case is remanded for further proceedings. Costs of this appeal are taxed to appellee F&C.

In part, REVERSED and REMANDED.

HOOD, J., concurs and assigns written reasons.

HOOD, Judge

(concurring).

I disagree with the conclusion reached by my colleagues. I nevertheless am concurring in the majority opinion for two reasons: (1) My refusal to concur would cause the case to be reargued, entailing additional delays and expense to the parties, and eventually the same result would be reached; and (2) the majority recognizes that after the case is remanded, a motion for summary judgment may be filed presenting the same issue which is before us now, and in that manner the parties eventually will be able to have that issue determined.

The sole question presented on this appeal is whether an exclusionary clause in a policy of insurance issued by Fidelity and Casualty Company of New York relieves that insurer from liability.

The policy was not attached to plaintiff’s petition, but a duplicate of it was attached to “Exceptions of No Cause or Right of Action” filed by Fidelity. The policy thus is legally and properly in the record. The minutes of the court show that the exception filed by Fidelity was “taken up, tried and taken under advisement” before judgment was rendered. There is no transcript of the testimony, but we must presume that the trial was conducted properly and that the policy was introduced and received in evidence, since the entire trial and this appeal deal solely with the language used in one clause of that policy.

Four separate briefs were filed in this court on behalf of the four parties to the suit. In each brief the exclusionary clause of the policy was quoted, and scholarly arguments were presented as to the effect which should be given to that clause. No one objected to considering the policy or the legal issue presented. No one questioned the right of the court to consider the policy, or to decide the single legal question which must be determined. The parties, in fact, urged the court to decide whether the insurer should or should not be dismissed from the suit, so that the case then could proceed to trial on its merits.

My colleagues, on their own motion, have decided to treat the pleading filed by Fidelity solely as an exception of no cause of action, although it also is an exception of no right of action, and to interpose in behalf of the plaintiff an objection to the court’s considering the insurance policy, an objection which plaintiff obviously did not want to make.

Ordinarily, parties are permitted to stipulate as to facts and as to the issues which are presented in a case, and courts permit them to do so, unless the stipulations raise questions of public policy, questions as to the jurisdiction of the court, or questions which are not material to a disposition of the case. In the instant suit no question of public policy or of jurisdiction are raised, and clearly the issue presented is material to a determination of this case. I think my colleagues have erred in raising a technical objection, not urged or discussed by any party, and on that ground refusing to look at or consider the insurance policy which is properly in the record and which all parties obviously agree should be considered by the court.

The majority relies on American Creosote Company v. Springer, 257 La. 116, 241 So.2d 510 (1970), and Parks v. Winnfield Life Insurance Company, 336 So.2d 1021 (La.App. 3 Cir. 1976).

I agree that some language used in Springer, appearing to me to be dictum, provides support for the majority’s view. I do not interpret that opinion, however, as prohibiting parties to a suit from stipulating as to facts or pleadings or as to the issues which are to be decided by the court. Neither do I interpret Springer as barring a party from waiving an objection which he could have urged. There did not appear to be a stipulation or waiver in Springer. In the instant suit, however, I believe that the parties at least tacitly stipulated that the policy was in evidence and should be considered. Certainly, plaintiff waived any objection which he might have to a consideration of the policy. In view .of this difference in circumstances, I do not believe that Springer prohibits a consideration of the insurance policy involved in the instant suit.

In Parks, I disagreed with the holding of the majority, and in a separate opinion I expressed views similar to those which are being expressed here.

In North Central Utilities, Inc. v. Sarver, 323 So.2d 173 (La.App. 3 Cir. 1975), our court held, unanimously, that evidence introduced by stipulation at a hearing on an exception of no cause of action had the effect of enlarging the pleadings and should be considered in ruling on that exception. That holding, I believe, is in direct conflict with the holding of the majority in the instant suit. Both of the judges who constitute the majority in the instant suit were on the panel which decided Sarver, and one of them wrote the majority opinion. In that case the court discussed and distinguished Springer, supra, and it concluded:

“Although LSA-C.C.P. 931, prohibits evidence to support or controvert the objection that a petition fails to state a cause of action, North Central’s petition was amended by the stipulated filing of the letter in the pleadings. The filing of the letter constitutes an amendment to the petition, and the trial court properly considered this amendment in deciding the exception of no cause of action. Rheuark v. Terminal Mud and Chemical Company, 213 La. 732, 35 So.2d 592 (1948). See also General Accident, Fire & Life Assurance Corp. Ltd. v. J. B. Glen, 261 So.2d 78 (La.App. 3 Cir. 1972), where a document was considered with consent of both parties.” (Emphasis added).

The two judges who constitute the majority in the instant suit also were members of the panel which decided Honeycutt v. Town of Boyce, 327 So.2d 154 (La.App. 3 Cir. 1976), which involved a suit for damages. The defendant filed an exception of no cause of action, based on the ground that plaintiffs had executed a formal release of the claim. The form of release was introduced in evidence. Our court considered the release which had been introduced in evidence, and it affirmed the judgment of the trial court sustaining the exception of no cause of action, based solely on that release. After citing Springer, our court held in effect that where evidence is introduced to sustain an exception of no cause of action, the exception may be treated as a motion for summary judgment, the evidence may be considered, and the exception of no cause of action may be sustained on the basis of that evidence. The court affirmed the judgment of the trial court sustaining the exception of no cause of action, and in doing so it used the following language:

“For the foregoing reasons, we conclude that the judgment of the trial court sustaining defendant Boyce’s exception of no cause of action is correct in its result.”

The two judges who constitute the majority in the instant suit were on the panel which decided Honeycutt, and one of them was the author of the opinion. The holding in that case is contrary to the holding of the majority in the instant suit.

In Parr v. D. H. Holmes, Co., Ltd., 311 So.2d 463 (La.App. 4 Cir. 1975), the defendants filed an exception of no cause of action after plaintiff had presented evidence and closed its case in a trial on the merits. The trial judge considered the evidence which had been introduced and sustained the exception of no cause of action. Our brothers of the Fourth Circuit, after citing Springer, pointed out that under LSA-C.C.P. art. 2164, the court may render any judgment which is just upon the face of the record. It considered the evidence which had been introduced and concluded that plaintiff was not entitled to recover. In view of Springer, the court amended the judgment of the trial court to dismiss plaintiff’s suit on the merits, rather than on an exception of no cause of action, and with that amendment it affirmed the trial court judgment.

I think any of the procedures employed in the above cases would be appropriate here. The insurance policy which is legally and properly in the record, without objection of any party, can and should be treated as an enlargement of plaintiff’s pleadings, and it should be considered in deciding the exception of no cause of action, as was done in Sarver, supra. Also, the exception of no cause and no right of action filed by Fidelity may be considered as an alternative motion for summary judgment, and on that basis judgment could be rendered sustaining the exception of no cause of action, as was done in Honeycutt, supra. And, finally, since the insurance policy was the only evidence material to decide the issue on the merits as to the liability of Fidelity, this court could properly amend the judgment of the trial court to dismiss plaintiff’s suit as to Fidelity on its merits, rather than on an exception of no cause of action, as was done in Parr, supra.

As already noted, although I disagree with the holding, I am concurring in the majority opinion solely to avoid unnecessary delays and expense to the parties, particularly in view of the fact that by filing additional pleadings, having another hearing and taking another appeal, all of which I consider to be unnecessary, the parties eventually will be able to obtain the same relief which could be afforded to them now.

For these reasons, I respectfully concur.  