23 So. 100 (La. 1898), 12,671, Chivers v. Roger

Docket Nº:12,671
Citation:23 So. 100, 50 La.Ann. 57
Opinion Judge:WATKINS, J.
Attorney:Beattie & Beattie, for Plaintiff, Appellant. Clay Knobloch & Son, for Defendant, Appellee.
Case Date:January 24, 1898
Court:Supreme Court of Louisiana

Page 100

23 So. 100 (La. 1898)

50 La.Ann. 57




No. 12,671

Supreme Court of Louisiana

January 24, 1898

Submitted December 28, 1897.

APPEAL from the Eighteenth Judicial District Court for the Parish of Lafourche. Caillouet, J.

Beattie & Beattie, for Plaintiff, Appellant.

Clay Knobloch & Son, for Defendant, Appellee.

WATKINS, J. BLANCHARD, J., dissents.


Page 101

[50 La.Ann. 58] WATKINS, J.

This is an action for the recovery of twenty-five thousand dollars damages for the death of the plaintiff's son, which was caused by the alleged negligence and want of care on the part of the defendant.

It is alleged that the deceased was employed in the sugar factory of the defendant as a sugar maker, "and was literally cooked to death in a vat of boiling water," and that "having suffered untold pain and anguish," he died soon after the accident happened.

The cause was tried and submitted on the 23d of March, 1896, but on account of the near approach of the adjournment of the court, an agreement of parties was reached, that the decision of the court might be rendered at the next term of the court; but that, at that time, no judgment was rendered.

That on the 18th of September, 1896, the plaintiff, James T. Chivers, died, and on the 30th of that month his heirs were duly cited and made parties plaintiff to the suit.

That the judge a quo refused in this attitude of the case to pass upon the merits, but dismissed the suit on the ground that the plaintiff [50 La.Ann. 59] having died, his right of action for the damages claimed did not survive him, and continue in favor of his heirs.

It is from the judgment of dismissal that the heirs of the deceased plaintiff prosecute this appeal.

The contention of the plaintiff's counsel is, that the law gave to the plaintiff, James T. Chivers, the right to institute this suit against the defendant for the recovery of the damages his son had suffered at his hands, resulting in his death; and having instituted the suit, and obtained a contradictory trial thereof in the District Court, prior to his death -- notwithstanding no judgment had been pronounced upon the issue joined -- his right of action survived him and became vested in his legal heirs as an inheritance, entitling them to prosecute the suit to final judgment. Revised Civil Code, 2315, 944, 945.

Per contra, the contention of the defendant's counsel is, that the precept of the civil law, and that of the common law as well, is, that an action which is merely personal, one arising ex delicto, perishes with the person who is entitled to it.

Actio personalis moritur cum persona. 4 Institutes, 315; 3 Blackstone Com. 302.

That, by the positive terms of our law, this right of action survives in case of the death of the claimant, in favor of the minor children, or widow of the deceased; or in default of the same, in favor of the surviving father or mother. R. C. C. 2315.

That in the event of neither the beneficiaries named having survived the deceased claimant, the right of action abates, and ceases altogether.

The purport of this contention is, that if the heirs of the parent, James T. Chivers, are recognized as having acquired a right of action by inheritance from him at his death, it would be in effect, to enlarge the provisions of Revised Civil Code, 2315, and the statute of 1884 amending it, by conferring same upon a class of persons that is not included in either.

Our learned brother of the District Court prepared an interesting and instructive opinion, in the course of which he says:

"It seems clear to my mind, that if the plaintiff had died before bringing this suit the right of action would have expired with him.

"His heirs could not have brought suit by right of representation, for they are not embodied in the statute," and it must be construed strictly. Walton vs. Booth, 34 An. 914.

[50 La.Ann. 60] That "the right was purely personal and not transmissible with the succession of the (plaintiff), but died with him."


"If this language" -- that of the Code and statute quoted -- "means anything, it means that the right of action shall exist for the space of one year after the death of the party injured in favor of, first, the minor children and widow; and of, second, the father and mother, or either of them. The right is to exist in favor of all, in the order named, during one year; so that, if the minor children and the widow of the deceased should die within the year, and before having reached their right to possession, the right of action would descend, not to either heirs or legal representatives, but to the father and mother, or either of them, as the case may be. To hold otherwise would be to make persons not mentioned in the law the beneficiaries, to the exclusion of the beneficiaries expressly provided for in the law.

"Such a conclusion has no foundation in law, or in reason.

"It seems clear, therefore, that the right conferred is a purely personal one, which, if not reduced to possession, expires with the beneficiary."

Our predecessors examined and construed the provisions of Art. 2294 of the Civil Code -- Art. 2315 of the Revised Civil Code -- to be inapplicable to a case in which death had resulted from personal injuries, and in the course of this opinion the court said:


Page 102

The plaintiff and her children, in this case, do not complain of wrongs to their own persons, and it can not be pretended that they had any right of property in their husband or father.

"It appears to us, therefore, that without a special statute authorizing such actions, they can not be maintained." Hubgh vs. Railroad Company, 6 An. 495.

The decision in that case was affirmed in Herman vs. Railroad Co., 11 An. 5, and in Earhart vs. Railroad Co., 17 An. 245.

It is well to recur to the provisions of the article of the Code, which are as follows, viz.:

"Every act whatever of man, that causes damage to another, obliges him by whose fault it happened to repair it; the right of this action shall survive in case of death in favor of the minor children and widow of the deceased or either of them; and in default of these, in favor of the surviving father and mother, or either of [50 La.Ann. 61] them, for the space of one year from the death." R. C. C. 2315 (2294).

It thus appears that "the right of this action shall survive," first, in favor of the minor children of the deceased; second, in favor of his widow, and third, in favor of the father and mother of the deceased, or either of them. Each of the persons acquires "the right of this action" in the order named; and, obviously, the acquisition by one of them of that right of action, would have the legal effect of excluding those who follow him.

The statute referred to enlarged the remedy which is afforded by the aforesaid article of the Code, and supplemented it in the following terms, viz.:

"The survivors above mentioned may also recover the damages sustained by them by the death of the parent or child, or husband, or wife, as the case may be." Act 71 of 1884.

This court had occasion to construe and apply the provisions of hat statute in a recent case. Walton vs. Booth, 34 An. 913.

The case as stated in that opinion, was that of the father and mother who sought to recover damages of an apothecary who sold their daughter a dose of deadly poison by mistake, through the administration of which she died.

In that case an exception of no cause of...

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