
    NO. 8829
    COURT OF APPEAL PARISH OF ORLEANS
    
      
    
    WILLIAMS BURDON and CORNELIA BURDON versus WEST NEW ORLEANS LIGHT & TRACTION COMPANY, and SOUTHERN COTTON OIL CO.
   Dinirelspiei; J.

This is the second appeal of the Southern Cotton Oil Company, in the a,hove case in this Court.

In the first case between the same parties, together with the West Hew Orleans Light & Traction Company, another defendant in this case, we decided:

"Miiinteining en exception of no cause of action based merely on defective pleadings, end not going to the merits of the controversy, does not form the bssis of res adjudica.ta."
14 Court of Appeal, page 310. Illinois Central R. R. C. vs. N. O. Terminal Co. 143 La. 537.

Exceptions of no cause of action if not passed-on in the lower court will not be considered by the appellate court.

Gaudin vs. B. M. R. A. 140 Ls. 674.
Cunningham vs. Penn Bridge Co. 130 La. 196.
8366 Court of Appeal.

The allegations of plaintiff's petition substantially charge that defendants, Southern Cotton Oil Company, were irw debted to them for this:

That plaintiffs were the parents of Simon Burdon and that his Injury, suffering and death were caused by certain acts, carelessness and negligence on the part of defendants, and it is also alleged that by reason of their loss, the parents were entitled to damages, and that they acquired their right of action by the death of their son resulting from the said Injury.

To this petition defendants filed exceptions of no cause of right of action, which was maintained by the Judge of the Court aquo, and kix* his res sons for judgment were as follows:

Plaintiffs allege thst as father and mother of the deceased, Simon Burdon, they succeeded to his right of action - whereas th;e law provides that suoh right of action is given to the father and mother in default and to them only in default of widow and minor children.

The exceptions were maintained and plaintiffs' suit dismissed.

In a recent case, William Brewer et al versus New Orleans Land Company, No. 8166 of the docket of this Court, we held, quoting C. P. 906:

"If the court shall think it not possible to pronounce definitely on the case in the state in which it is, either because the parties have failed to produce the neoessary testimony, or because inferior oourt refused to receive it, or otherwise, it may according to circumstances' remand the oase to the lower court with instructions as to the testimony which it shall receive to the end that it may decide According to law."

It has been held that a oase will be remanded when a party to the suit through oversight or otherwise has omitted to introduce and file necessery evidence in his possession*

1st La. Digest, 437, 715, 729.

130 La. 765; 138 La. 839; 51st Ann. 1133.

When the reoord of a suit discloses enough to mix satisfy the oourt that the whole story of the case ts not told, that essential facts have luuac not been given in evidenoe, and important documents ex have been omitted, and that substantial justloe cannot be done between the parties in the state of the reoord as filed, the oourt will in its discretion in the interest of justice, remand the oase.

Snyder vs. Aetner Life Insurance Co. 30th An. 1198.

On exception of no oause of action the allegations of the petition are to be taken as true, xi, on the assumption that on the trial of the oase plaintiff has established all the allegations of his petition by proof, and applioation -of the law:invoked by him to those facts would entitle him to a judgment, it cannot, be said that his petition discloses no oause of aotion, though it be faulted for vagueness.

Goldsmith vs. Virgin 122 La. 831.

We are therefore of the opinion that the court, erred in its judgment dismissing this suit.

For the reasons assigned, it is ordered, adjudged and decreed, that the.judgment of the court a quo he reversed and ■avoided^jmd^l^lj^ase rem|gded^bo^the^opurt of the first instance, in order ifcx to hear and determine the case upon its merits, iaxE*dsxx*« the costs of appeal to be borne by the- defendant, the Southern Cotton Oil Company, and all the other-costs to await.the final decision of this suit.

-Judgment reversed and remanded.  