DISSENTING OPINION OF
CLAIBORNE, J.The case of Jung vs. N. O. Ry. and Fox River Co., 145 La. 727, 82 South. 870, has no application to this case. The court thus states the issue to be decided in that case on p. 730:
“The issue here, therefore, must turn upon the question of whether or not, as a matter of fact, Arceneaux was the agent of the Fox River Butter Company and at the time engaged in attending to its business.”
The plaintiff in that case was knocked down by an automobile driven by Arceneaux. Under the belief that Arceneaux was in the employ of the Fox River Company, the plaintiff sued the Fox River Company as liable for the negligence of Arceneaux as its employee. The Fox River Company answered by a general denial.
In rejecting plaintiff’s demand the court said on p. 732:
“Plaintiff has failed to sustain the burden of proof to the extent of showing that Arceneaux was the agent of the Fox River Butter Company. Having found that Arceneaux was not the agent of the Fox River Butter Company it becomes unnecessary to determine the question of negligence.”
Plaintiff’s demand against the Fox River Butter Company was therefore rejected, and properly so.
The burden of proof was upon the plaintiff to establish that Arceneaux was the employee or agent of the Fox River Co. He who alleges agency must prove it, with or without answer. 2 C. J. 915 S. 635 — 8276 Orl. App. 29 A. 363; McCarty vs. Straus, 21 La. Ann. 592; Dawson vs. Landreaux, 29 La. Ann. 363; Rubenstein vs. Files, 146 La. 734, 84 South. 33.
But the burden is upon a defendant to sustain the plea of minority. Like all exceptions it must be specially pleaded.. C. P. 327-333-336-346; Patterson vs. Frazer, 8 La. Ann. 512; Smith vs. Braun, 37 La. Ann. 225 (228).
The balance that was said in the Fox River case concerning the absence of duty on the part of a defendant to disclose the *254facts of a case was not necessary for the decision of the case, and was therefore ohiter and only the individual opinion of the judge who decided the case.
In the Fox River case the defendants • did nothing to mislead the plaintiff. While in this case, although the defendant was a minor and incapable of standing in judgment, an answer was filed in his name by the same counsel who represénts the defendant herein, thus throwing plaintiff off of his guard.
On the other hand, in the case of Bastrop State Bank vs. Levy, 106 La. 587, 31 South. 165, Judge Blanchard said:
“Judicial tribunals are established to administer justice between litigants, and the first and most important step to that end is the ascertainment of the truth of the controversies which come before them. It is only when the truth is ascertained that the law can be properly applied in the just settlement of disputes. Litigants owe the duty of assisting in every legitimate way in the elucidation of the truth.”
And in the case of Baham vs. Stewart Bros. 109 La. 999, 34 South. 54, Chief Justice Nicholls, on p. 1011, said:
• “It having been established that a petition, with a citation accompanying the same, addressed to A. J. Baham, was served upon the wife of A. J. Baham, it was his duty, if he was not the party concerned in the subject matter, to have appeared in the District Court and excepted-to the citation.”
It is the duty of courts to teach litigants not only their rights but their obligations.
• But the question before us' for determination is not whether the plaintiff was entitled to a judgment against the minor in the first suit, or whether she is entitled to a judgment against the minor’s father, the defendant in the present. suit, but whether the prescription of plaintiff’s action against the father, defendant, has been interrupted and suspended by the former suit against the minor.
It is true that service of citation and petition addressed to the defendant are essential, as a rule, to the validity of a judgment, and that knowledge of a suit will not supply the want of them, however clearly brought home to them.
Yet there are exceptions to that rule when the defendant has remained silent when he should have spoken.
Thus it has been held that a citation rroneously addressed to “Joseph N. Robert” instead of “Francois J. Robert” and a judgment based thereon against Francois J. Robert may be a valid judgment against Francois J. Robert, in the presence of the silence of the latter in proper time to plead the error. Formento vs. Robert, 27 La. Ann. 489.
In the case of City vs. Cordeviolle, 10 La. Ann. 727, where the defendant was sued for city taxes and notified by publication under a special law in the name of "Cordoviatti” and judgment obtained against him in that name, the Supreme Court set aside the judgment on account of that error but said:
“It is hardly necessary to observe that a case of this kind differs somewhat from a suit commenced by citation, where the personal service of the citation would demonstrate who was intended to be made defendant.”
But the question before us is not whether the citation addressed to the minor in the prior suit would have justified a judgment against the father, the present defendant. Evidently not. The question is whether the citation and petition addressed to the minor were sufficient to interrupt the pre*255scription against the father for the purposes of the suit under consideration.
Article C. P. 3518 (3484) reads as follows:
“A legal interruption takes place when the possessor has been cited to appear before a court of justice, on account either of the ownership or the possession; and the prescription is interrupted by such demand, whether the suit has been brought before a court of competent jurisdiction or not.”
One thing are the formalities essential to obtain a valid judgment. Forma dat esse rei. Another are the directions for suspending prescription by legal proceedings.
These are' not essential.
“Numerous decisions have established a distinction between the technical sufficiency of a citation, as a basis' for the maintenance of proceedings and judgment and its sufficiency for the purpose of interrupting prescription. Citation for the purpose of interrupting prescription need not be technically perfect in form or service.” 8 La. Dig., p. 797, s. 189; 6 id., p. 200, s. 193; Tessier’s Digest, p. 45, s. v; Bergstrom vs. Spielman, Orleans Appeal, No. 7708 Bk. 56 Orl. App.; Norwood vs. Lake Bisteneau Oil Co., 145 La. 828, 83 South. 25; State vs. Dyer, 154 La. 379, 97 South. 563; Anding vs. T. & P. R. R. Co., 158 La. 418, 104 South. 190; King vs. Guines, 118 La. 346, 42 South. 959; Babin vs. Lyons Lbr. Co., 132 La. 876, 61 South. 855.
In the case of Anding vs. T. & P. Ry. Co., 158 La. 412, suit was filed September 1, 1921. The plaintiff alleged that on October 27, 1920, while said railway was in the hands of receivers, she was injured by the negligence of defendant’s employees; she prayed for damages against the defendant railway. On September 8, seven days later, plaintiff filed a supplemental petition in which she alleged that the defendant was in the hands of a receiver, and she prayed that the defendant railway be cited through said receivers and for judgment against the ■ railway and the receivers as such. Citation issued directed to the railway, through its receivers, on September 9 the sheriff served a copy of the citation and petition on the railway, through its receivers. On October 20 the railway filed an exception that the petition disclosed no cause of action “for the reason that” at the time of the accident the company was in the hands of receivers and i therefore is not responsible for the alleged accident”. Two days later, and more than a year after the accident, plaintiff filed a supplemental petition in which she alleged for the first time that the accident happened while the railway was operated by the receivers who were therefore liable, and she prayed that they be cited and for judgment against them. The receivers filed a plea of prescription of one year.
The District Court, maintained the exception of no cause of action filed by the railway eompa*y and dismissed the suit as to it.
It also maintained the plea of prescription filed by the receivers and dismissed the suit as to them. The Court of Appeal affirmed both those decisions and the plaintiff took a writ to the Supreme Court.
The Supreme Court affirmed- the judgment in favor of the railway company finding i that “the negligence which caused the accident was chargeable directly to the receivership. Under these facts the railway company was not liable”. See p. 416.
The receivers pleaded that prescription had not been interrupted as to them, by the original petition and citation addressed to the railway company, when they should have been directed to them, and bepause they “did not convey to them sufficient *256knowledge of the claim against them to interrupt prescription”.
The Supreme Court reversed the opinion and decrees of both the District Court and the Court of Appeal and decided that prescription had been interrupted by the petition and citation addressed to the railway company and served upon the receivers, although the railway company was not liable, and the receivers alone were liable.
In support of that opinion the court cited and analyzed a number of cases. It quoted Vernon vs. I. C. R. R., 154 L. 370, 97 South. 493, where the facts and the issues appear to have been the same. There the plaintiff filed a first suit against the railroad company for causing the death of her son. The citation was addressed to the Director General and served upon him. In a second suit filed more than a year after the death of her son, she sued the Director General of Railroads for the same cause of action. The Supreme Court held that prescription had been interrupted by the first suit and said:
“On the whole we think the Director General was sufficiently informed by the citation and petition served upon him of the nature of plaintiffs’ claim and of the fact that she was demanding payment thereof; in other words, he was cited to appear in a court of justice on account of said claim, sufficiently to interrupt prescription thereon.”
In affirming the Vernon case , the Supreme Court in the Anding case said on p. 422:
“We are also of the opinion that the original and first supplemental petitions conveyed to the receivers sufficient knowlinterrupt prescription. The original petiedge of plaintiffs’ claim against them to tion stated a complete cause of action against the railway company. The first supplemental petition contained a prayer for judgment against the receivers. All that may be said to be lacking in the latter, when read in connection with the original position, to show a complete cause of action against the receivers was the allegation that at the time of the accident the railway company was in the hands of receivers and that the alleged accident was due to the fault of the receivers instead of to the fault of the railway company. However the original petition alleged 'the date of the accident; and as on that day, the railway company was in the hands of receivers, and had been for four years prior thereto, the absence of that allegation did not have the effect of preventing the interruption of prescription, for the allegation, setting forth the date of the accident, and the service of the petition containing that allegation, conveyed to the receivers knowledge, judicially, that the accident occurred under the regime of the receivership, and the demand for judgment against them conveyed to them knowledge that they were being held by plaintiff responsible for the alleged negligence and accident that occurred under their regime.” See also Thompson vs. N. O. Const, and T. Co., 24 La. Ann. 382.
In the case of Gueble vs. Town of Lafayette, 118 La. 494, 43 South. 63, quoted in Babin vs. Lyons, 132 La. 877, 61 South. 855, where the citation was addressed to, and served upon the mayor, the court said:
“There can be no doubt that through those papers he received judicial knowledge of the fact that the plaintiff had filed a demand against the town of Lafayette in the District Court, what that demand was for, and what the petition prayed for. He was as fully informed on these points as if the citation which he received had been addressed to the town of Lafayette, and had been placed in his hands. He was the proper person and the only necessary person to whom that knowledge should be conveyed. The fact that the citation was not addressed to the town of Lafayette did not do away with the knowledge which the papers, . which were actually served upon him, had conveyed.”
In King vs. Guynes, 118 La. 344, 42 South. 959, the court said:
*257“The law considers the fact rather than the form of judicial notice in the matter of the interruption of prescription. The word “cited” as used in C. C. Art. 3518 has been construed to mean any kind of judicial notice which brings home to the defendant knowledge of the demand instituted against him, such as notice of seizure and sale in executory proceedings or seizure and notice under execution of a twelve months’ bond.” Kings vs. Labranche, 35 La. Ann. 305; Boyd vs. Heine, 41 La. Ann. 395, 6 South. 714; Whitney Iron Works vs. Reuss, 40 La. Ann. 112, 3 South. 500.
A suit against the same defendant personally will interrupt prescription against him as executor. The cause of action is the same, the thing demanded is identical, and the parties are substantially the same. Hart vs. St. Charles Street R. R. Co., 37 La. Ann. 769.
In the case of Blanc vs. Dupre, 36 La. Ann. 847, the court decided that a suit filed by a curator, whose appointment was a nullity, interrupted prescription. Adopting the language of Flower vs. O’Connor, 17 La. 219, decided in 1841, the court said:
“In order to determine the extent and effect of a legal interruption, we must inquire more particularly into the object and cause of the action than into the right of the plaintiff, the manner in which it is prosecuted, and the competency of the court in which it is instituted, and endeavor to ascertain how far the knowledge of the titles on which the action is founded has been brought home to the defendant by the judicial demand; and we do not hesitate to conclude that if it be established that the defendant has been judicially notified of the titles which are the foundation of the demand, so as to acquire a sufficient knowledge of the rights which are sought to be enforced against him. by a suit, there results from said suit a legal interruption in favor of those to whom such rights belong.” State vs. Doherty, 25 La. Ann. 118.
In Satterley vs. Morgan, 33 La. Ann. 848, .the court said;
“This court has always given a liberal construction to that clause of Art. 3518 Rev. C. C., which declares that ‘a legal interruption takes place when the possessor has been cited to appear before a court of justice’.”
In Berens vs. Executors, 31 La. Ann. 115, the judge quoted French authorities as follows:
“The expressions of our Article (C. N. 2244) citation in a court of justice, must be understood in a broad sense; it would have been more exact to say, a demand in a court of justice.” Trop. Prese. No. 562; Merlin Rep. Yo. Prese. Nos. 401-5.
In the case of Anding vs. T. & P. Ry. Co., 152 La. 412, 104 South. 190, the defendant was in the first suit the railway company, and the petition and citation were addressed to it and served upon the receivers. Though the railway company did not owe the claim, service upon the receivers, who did not represent the railway, was held sufficient to interrupt prescription of the suit against the receivers, who were third parties, for the reason that the first citation and petition against the railway were served upon the receivers and fully informed them of the nature of the claim asserted by the plaintiff. So in this case the citation and petition were addressed to the minor, Rosenblum, who did not owe the claim, and were served at the domicile of the father, defendant, in this case, and informed him of the nature of plaintiff’s claim.
The' service upon the receivers was more defective than the service upon the minor in this' case, because the receivers did not in any manner represent the railway, and were not liable for its debts; while in the present case the father represented his minor son, C. C. 216-221, and was liable for his offenses.
C. C. 237-2318.
*258The evidence in the case shows that the petition and citation in the first suit addressed to defendant’s son were served at defendant’s domicile in the hands of his wife. It is no violent presumption to assume that the father received the petition and citation, and became acquainted with their contents, and that he assisted counsel in the preparation of the answer. The answer in nine paragraphs was filed in the name of the son, as if he was a' major. Although the petition alleged that the son was of the age of majority, there was no exception filed that he was a minor nor was it alleged in the answer in so many words that the son was a minor. C. P. 346; 159 La. 526.
There was only a denial of the allegation, contained in' the petition, of the majority of the son. Plaintiff overlooked this denial, as well he might, as denials áre sometimes made of admitted facts, and because the defendant followed this denial with an elaborate answer upon the merits which he might have avoided by' pleading the minority. This alone was very likely to throw plaintiff off his guard. The answer was a Trojan horse which contained within its bowels a mortal enemy. The answer was filed in the name of the minor. Another circumstance calculated to throw plaintiff off of his guard. It was a stumbling block thrown in the path of the blind.
It was only upon the trial of the case upon its merits, more than a year after the accident and after two continuances on the part of the defendant in this case that he testified that his son was a minor. By disclosing this fact he might have put an end to the litigation at once. He cannot take advantage of his silence.
Under these circumstances, I am of the opinion that the defendant cannot avail himself of the plea of prescription.
In the case of Odoberto vs. Virgin, No. 7986 of this court, O. B. 57, this court held:
“Where a party lulls another into the belief that he will suffer no loss by his inaction and thus induces him to refrain from claiming a debt, prescription will not begin to run until the other party is undeceived.”
In the case of Stanbrough vs. McCall, 4 La. Ann. 322, the court said on p. 324:
“The rule that he who thus paralizes the right of another shall not benefit by his own act to prescribe against that right, is not peculiar to our own jurisprudence; but as it has its foundation in reason and justice, we find it adopted as a principle of equity in England and in the United States. In Putney vs. Warren, 6 Vesey 73, it was held that where a party applies to a court of equity, and carries on an unfounded litigation, protracted under circumstances and for a length of time which deprives his adversary of his legal rights, thei court of equity considers that it should itself supply and administer, within its own jurisdiction, a substitute for that legal right, of which the party so prosecuting an unfounded claim has deprived his adversary.” 2 Story Equity 1526.
In the case of Hyman vs. Hibernia Bank et al., 739 La. 411, 71 South. 598, the prescription was held suspended because the defendant continued to pay the rent while the contents were being removed. See also Succn. Gilmore, 157 La. 133, 102 South. 94, 104 Decennial vs. Limitations. McDuffie vs. Walker, 125 La. 153 (167), 51 South 100; 7 Orl. App. 60.
The insurance company referred to by Leo Rosenblum, speaking as a witness, is the Aetna Life Insurance Company, the indemnitor of the present defendant, Hile Rosenblum.
The attorney who represented the minor, Leo Rosenblum, in the first suit is the same who represents the actual defendant. *259We must therefore conclude that the Aetna Life Insurance Company was the real defendant in both the suits against the minor and in the one against his father, the present defendant, and is therefore responsible for the pleadings in both cases. The insurance company must therefore be held for its failure to plead the minority of of Leo Rosenblum specially and in so many words and for its action in filing an answer in the name of the minor, as if he was sui juris. If it was wrong so to do, then the insurance company cannot tafee advantage of its own wrong; and I am of the opinion that it committed an error and was wrong in so doing.
In the Hibernia Bank case the court said:
“Where a bank and its debtor, successor of another company, paid rent for the premises leased by such other company to -lull the landlord into a false security and keep him fro.m discovering that they were removing from the premises goods subject to lessor’s right of pledge and his privilege, the prescriptive period of limitation to the landlord’s action for the tort committed Tfpon' him began to run from the date of the last payment of rent, since one who by some act succeeds in concealing from a creditor his cause of action cannot be allowed to reap the benefit of his own wrong.” Hyman vs. Hibernia Bank, 139 La. 412, 71 South. 598. Affirmed in Bernstein vs. Bank, 161 La. —, 108 South. 126.
In that case the syllabus reads:
“Concealing from plaintiff libelous letter held to suspend statute of limitations.”
See also Eureka Homestead vs. Sladovich, 161 La. —, 108 South. 477, where it was held that it was a fraud for a minor to represent himself as of age.
So in the present case this defe^da-R. by concealing the fact of his son’s minority when he should have spoken, and by authorizing an answer in his minor son’s name, as if he was a major, lulled the plaintiff into a false security of his right of action and “cannot be allowed to reap the benefit of his own wrong”. As to him, prescription began to run only from the date he testified his son was a minor.
For the above reasons I respectfully dissent, and I am of the opinion that the exception of prescription should be overruled and the case remanded for trial upon the merits.