I cannot concur in the view that the exception of no right of action may be availed of only where there is involved the question of the right of the plaintiff to assert the cause of action because I feel that, where it is contended that a cause of action which admittedly exists may not be asserted against a particular defendant, the exception of no right of action is equally available. The exception of no right of action is afforded by the Code of Practice to a defendant as a means of challenging preliminarily either the right of the plaintiff to assert the cause of action against any one or the right of any one to assert the cause of action against the defendant.
In either case the question of whether a "cause" of action is stated is not raised, but there is put at issue the status of the plaintiff toward the cause of action, or the status of the cause of action toward the defendant. If a plaintiff sues as widow and asserts a cause of action which a widow may not assert, for instance, under the Federal *Page 656 Employers' Liability Act (45 U.S.C.A. §§ 51-59), she shows herself to be without "right" of action because only the personal representative of the deceased and not the widow may sue in such case. La Casse v. New Orleans, T. M. R. Co., 135 La. 129,64 So. 1012; Penny v. New Orleans G. N. R. Co., 135 La. 962,66 So. 313. Similarly, if a plaintiff admittedly with a right to sue and admittedly with a cause of action to sue the administratrix of an estate sues the widow of the deceased, she is without right to sue the widow, though she may have a perfectly good cause of action against the administratrix. The exception of no "right" of action in such situation is, I think, available.
Mr. McMahon, in his interesting and exhaustive study of the exception of no cause of action (Tulane Law Review, vol. IX, p. 17), has this to say concerning the distinction between the exception of no "cause" of action and the exception of no "right" of action: "From the foregoing illustrations we may readily discern the distinction in the respective functions of the exception of no cause of action and that of no right of action. The former is used to raise the issue as to whether the law affords a remedy to anyone for the particular grievance alleged by plaintiff; the latter is employed (in cases where the law affords a remedy) to raise the question as to whether plaintiff belongs to the particular class in whose exclusive favor the law extends the remedy. * * *"
I agree fully with what he has said, but I feel that he has inadvertently failed to notice the situation to which I now direct attention. Had he done so, he would have said that "the latter (no `right' of action) is employed (in cases where the law affords a remedy) to raise the question as to whether plaintiff belongs to the particular class in whose exclusive favor the law extends the remedy, or to raise the question as to whether the defendant belongs to the particular class against whom the remedy may be sought."
If "A" sues "B," the latter, by exception of no "right" of action, may say to "A": "I admit that a cause of action exists, but I deny that you are entitled to present it". Also, if "A" sues "B," "B" may, by exception of no "right of action," say to "A," "I admit that a cause of action exists and I admit that you may assert it, but I deny that I am among the class of persons against whom it may be asserted."
If a corporation is being operated by a receiver and by negligence "A" is injured, he has a "cause" of action; he has the "right" to assert it against the proper party, but there is no "right" to assert it against the corporation. Hence the exception of no "right" of action is available to the corporation.
In making use of this illustration I am not unmindful of the case of Anding v. Texas Pac. Ry. Co. et al., 158 La. 412,104 So. 190, 192, in which the Supreme Court referred to just such an exception as the "exception of no cause of action." But I believe that that reference was inadvertent and resulted from the fact that the exception as filed was styled as one of "no cause of action." The distinction I now seek to make was not sought to be made there and was not necessary to a decision of the case.
If "A" sues "B" for damage, alleging facts which show that she, "A," was injured, and that "B" was solely responsible therefor, she asserts a cause of action and she shows a right in herself to assert that cause. But "B," by exception of no right of action, would be permitted to show that he is the husband of "A" and that, therefore, no right exists against him. The absence of right results as much from "B's" status as the husband of "A" as it does from "A's" status as the wife of "B."
There are many other illustrations to which I might point from which it would appear that oftentimes a plaintiff may assert a good cause of action and may show a right in himself to assert the cause of action, but in which the defendant, by exception of no "right" of action, may show that the cause of action may not be awarded against him.
In two interesting cases the Supreme Court has held that a wife is without right to assert a cause of action for wages earned by her during the existence of the community. Succession of Howell,177 La. 276, 148 So. 48, and Houghton v. Hall et al.,177 La. 237, 238, 148 So. 37. Let us assume a situation in which the wife is sued and in the suit there is an attempt made to garnishee the wages earned by her. Surely the wife could meet that attempt with an exception of no "right" of action based on the impossibility of pursuing, in the hands of the wife, wages earned by her. So that here, again, is a case in which the exception of no right of action may be availed of by a defendant to challenge the right to *Page 657 pursue the defendant because of the status of the defendant toward the cause of action.
I point to another class of cases — those in which the defendant enjoys a personal immunity from suit. As illustrative of that type of case I cite Rome v. London Lancashire Ind. Co., which has several times been before this court and before the Supreme Court. See (La.App.) 156 So. 64; (La.App.) 157 So. 175;181 La. 630, 160 So. 121; (La.App.) 169 So. 132. One of the defendants in that case, to wit, New Orleans City Park Improvement Association, asserted, as stated by the exceptor, that plaintiff had "no right or no cause of action." The exception was based on the status of the defendant toward the cause of action; in other words, the absence in the defendant of any possible responsibility for its tort actions. Therefore, although the exception was styled "no right or cause of action," it was, in truth, an exception of "no right of action," and I say this although I, myself, inadvertently in the decision which appears in 157 So. at page 175, referred to that particular exception as one of no cause of action. The reference was inadvertent and I am convinced it should have been styled an exception of "no right of action."
Article 346 of the Code of Practice was designed to meet just such a situation as is presented here. That article reads as follows: "Peremptory exceptions, founded on law, may be pleaded in every stage of the action, previous to the definitive judgment; but they must be pleaded specially, and sufficient time allowed to the adverse party to bring his evidence."
Here it is contended that defendant is owner of the premises and that he, by reason of that ownership, is liable to plaintiff. If the relationship of owner does not exist, there can be no recovery. Therefore, as a preliminary question, independent of the issues of fact which are involved in the question of fault, it should be determined whether or not defendant is the owner of the premises. That issue is tendered by the exception of no "right" of action. If the defendant is not owner, there can be no recovery. There should be no necessity, then, to try the case on the merits — to adduce testimony concerning the facts of the accident, the evidence concerning fault of negligence — since, if, as a matter of fact, defendant is not owner, there cannot be recovery.
Therefore, when defendant, by exception of no right of action, tendered that issue, i. e., the ownership of the premises, she was authorized by article 346 of the Code of Practice to go to trial on that issue as a preliminary matter and the judge of the trial court was justified in admitting evidence on that issue and in dismissing the suit on that issue when the evidence showed that defendant was not the owner of the property.
I believe that the exception of no right of action should have been sustained and I, therefore, respectfully dissent.