J. Wilton Jones Co. v. Liberty Mut. Ins. Co.

• Decision Date: 06 July 1970
• Docket Number: No. 3999,3999
• Citation: 248 So.2d 878
• Parties: J. WILTON JONES COMPANY, Inc. and Rene G. Delacroix v. LIBERTY MUTUAL INSURANCE COMPANY.
• Court: Court of Appeal of Louisiana — District of US

Page 878

248 So.2d 878

J. WILTON JONES COMPANY, Inc. and Rene G. Delacroix v. LIBERTY MUTUAL INSURANCE COMPANY.

No. 3999.

Court of Appeal of Louisiana, Fourth Circuit.

July 6, 1970.

Rehearing Denied May 10, 1971.

Writ Refused June 21, 1971.

Remy F. Gross, II, La Place, for J. Wilton Jones Co., Inc., and Rene G. Delacroix, plaintiffs-appellants.

Drury, Lozes, Young & Curry, Felicien P. Lozes, New Orleans, for The Employers' Liability Assurance Corp., Ltd., intervenor-appellant.

Jones Walker Waechter, Poitevent, Carrere & Denegre, John V. Baus, and James R. Murrell, III, New Orleans, for Liberty Mutual Insurance Co., defendant-appellee.

Before REDMANN, LeSUEUR and DOMENGEAUX, JJ.

LeSUEUR, Judge.

Rene G. Delacroix, one of the two original plaintiffs in this automobile-personal injury action, died on October 9, 1965, some eighteen months after suit was filed. The case had yet to be heard and, on February 23, 1966, Ella Moore Delacroix, Mr. Delacroix's widow, filed a 'supplemental and amended petition' as 'administratrix of decedent's succession' in which she alleged that, as administratrix, she was entitled to be placed in her late husband's stead as plaintiff and prayed for judgment In favor of the estate. On November 22, 1966 (more than a year after her husband's death) she filed a 'second amended and supplemental petition' asking for both survival and wrongful death benefits. The defense lodged exceptions founded upon the peremptory provisions of LSA-C.C. Art. 2315.

At trial, the case was presented by joint stipulation of fact and dismissed on the exceptions. The stipulation has narrowed the issues before this court to two: (1) whether a timely substitution with reference to Survivorship benefits was made (the wrongful death claim being withdrawn); and (2), if so, what amount of damages will adequately compensate Mrs. Delacroix.

In our view, the imposition of peremption is predicated on two errors. First, such an approach inextricably confuses rights to the survival of an action already filed (a right exercised) with a nonexercised Right of action for wrongful death. Second, it overlooks statutory amendments adopted with the Code of Civil Procedure in 1960.

THE EFFECT OF DEATH UPON A CAUSE OF ACTION.

The defendant's view of the abatement of an action which was filed timely is grounded on a long series of decisions interpreting rights granted under Art. 2315 as personal. If this view was once correct, it can most certainly no longer prevail. Both Art. 2315 and the modes of Louisiana procedure concerning abatement and substitution were radically altered in 1960. Specifically, the following provisions were adopted:

1. Art. 428 of the Code of Civil Procedure which provides, unequivocally, that an action once commenced does not abate upon the death of a party;

2. Art. 801 of the Code of Civil Procedure which provides specifically that the succession representative may substitute for any deceased party in a civil action. It is important to note that no time limit is provided for in this article;

3. Art. 2315 of the Civil Code was amended to provide that 'a right (of action) to recover damages under the provisions of this paragraph is a property right.'

This final change bears close scrutiny. As Professor McMahon observes by explanatory note, these rights are not only heritable, but heritable in two distinct categories. If suit has not been filed, they the Right to sue is heritable subject to the limitations of peremption. But, if suit has been filed, then the action Itself is inherited. As such an action has already been filed and all served parties given fair notice, there is no question of either peremption or prescription. The question is one of abatement. LSA-C.C.P. Art. 428 specifically excludes that possibility.

The means for continuing the still-living action is found in the substitution provisions of Art. 801. No time limit is set out, and for good reason. The Code of Civil Procedure already provides a 5-year time limit for abatement. Substitution is subject to this delay.

These principles seem to have been accepted at the time the statutory changes were made. Judge McBride, for example, in 1962, denied substitution for survivorship past the one year delay on the specific ground that the cause of action before him arose Before 1960. Maher v. Schlosser, La.App., 144 So.2d 706 (4th Cir. 1962). The thrust of his thinking seems clear.

In this connection, it is significant to note that with the principal exceptions of Davis v. State Farm Mutual Insurance Company, La.App., 208 So.2d 412 (4th Cir. 1968), Succession of Roux v. Guidry, La.App., 182 So.2d 109 (4th Cir. 1966) (both of which deal explicitly with wrongful death rather than survival benefits), and Marvin v. Toye Brothers Yellow Cab Company, La.App., 214 So.2d 196 (4th Cir. 1968), the defense relies chiefly upon decisions in which the causes of action predated the relevant legislative acts. Under these circumstances, an examination of the statutes passed or amended in 1960 and 1962 (LSA-C.C. Art. 2315, and LSA-C.C.P. Arts. 421, 426, 428 and 801) seems in order.

THE SCOPE OF THE ONE YEAR DELAY PROVIDED BY ART. 2315.

LSA-C.C. Art. 2315, as amended by Act 30 of 1960, Sec. 1, provides:

'Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.

'The right to recover damages to property caused by an offense or quasi-offense is a property right which, on the death of the obligee, is inherited by his legal, instituted, or irregular heirs, subject to the community rights of the surviving spouse.

'The right to recover all other damages caused by an offense or quasi-offense, if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of: (1) the surviving spouse and child or children of the deceased, or either such spouse or such child or children; (2) the surviving father and mother of the deceased, or either of them, if he left no spouse or child surviving; and (3) the surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving. The survivors in whose favor this Right of action survives may also recover the damages which they sustained through the wrongful death of the deceased. A right to recover damages under the provisions of this paragraph is a property right which, on the death of the survivor in whose favor the right of action survived, is inherited by his legal, instituted, or irregular heirs, whether suit has been instituted thereon by the survivor or not.' (Emphasis added.)

This article, by its express language, deals with a Right of action, twice using this specific phrase. The one year delay expressly refers to the time in which a Right of action must be exercised. The importance of this cannot be too strongly emphasized. As it is pointed out in the comments to LSA-C.C.P. Art. 421, defining the word 'action':

'The word 'action' has a double meaning * * * meaning both the 'instituted action' and the 'right to institute the action.' This double meaning has proved most unfortunate whenever the word 'action' is employed * * *. To avoid this difficulty, throughout this Code 'action' has been given only the meaning ascribed to it in the definition of the above article--'instituted action.' Whenever the 'right to institute the action,' is meant express language to this effect clearly indicating this meaning is employed. * * * (Emphasis added.)

The Louisiana Law Institute also drafted the amendment to Art. 2315. The consistent and purposeful use of terms suggests, at least on a preliminary basis, that it is only when a Right of action rather than an Action itself is inherited that the one year peremptive delay applies.

This, however, is more than a logical conclusion; it is a necessary one. An instituted action is property. In its essential nature it is no different in this respect than a brick. LSA-C.C.P. Art. 426 specifically so provides:

'An action to enforce an obligation is the Property of the obligee which on his death is transmitted with his estate to his heirs, * * *.' (Emphasis added.)

LSA-C.C.P. Art. 428 makes it plain that the inherited action is a viable, living one, providing that it does not abate on the death of a party. The comments to the Article are to the point:

'* * * the line of demarcation is the Institution of suit. Cf. Art . 421, supra. If the plaintiff has elected to enforce a right of action by instituting suit thereon, then his heirs, or his survivors under the amended Art. 2315 of the Civil Code, have the Right to continue its prosecution, if the plaintiff dies.' (Emphasis added.)

Here, the legislature deals with the 'right to continue.' So long as the action is not abated, this is an absolute right, not bound by the restrictions placed upon a 'right of action.'

Within this framework, the entire schema of Art. 2315 seems clear. It deals with 'rights of action' because the inheritance of an instituted action is governed by the provisions of LSA-C.C.P. Arts. 421 and 426, and the succession articles of the Civil Code. It makes the right property because the action itself is so treated by Art. 426. It deals in its final sentence with the survivor of a survivor because an immediate survivor, where suit is filed, already has fixed rights under Arts. 426 and 428. In short, it seems that the Institute, in its use of language, said precisely what it intended.

Confusion is generated only because, in some cases, the vehicle for enforcing the heirs' new right of action (wrongful death as in Roux) may be to substitute themselves into and amend the deceased's action which was for damages only.

If the heirs receive a Right of action under Art. 2315, then in order to exercise it by substitution and amendment, they must accept the limits imposed by Art. 2315 and act within a year. But, if the heirs inherit an Instituted action as defined in Art. 421, they are bound only by...