259 F.2d 420 (5th Cir. 1958), 17062, Page v. Cameron Iron Works, Inc.

Docket Nº:17062.
Citation:259 F.2d 420
Party Name:Frank H. PAGE, Appellant, v. CAMERON IRON WORKS, INC., Appellee.
Case Date:September 26, 1958
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 420

259 F.2d 420 (5th Cir. 1958)

Frank H. PAGE, Appellant,



No. 17062.

United States Court of Appeals, Fifth Circuit.

September 26, 1958

Rehearing Denied Oct. 31, 1958.

Louis M. Moore, Houston, Tex., Albert L. Weintraub, Miami, Fla., Patterson, McDaniel & Moore, Houston, Tex., for appellant.

Charles C. Crenshaw, Jr., Butler, Binion, Rice & Cook, Houston, Tex., for appellee.

Before HUTCHESON, Chief Judge, and RIVES and CAMERON, Circuit Judges.

CAMERON, Circuit Judge.

This appeal presents the question whether the court below properly dismissed, as extinguished under applicable Louisiana law, appellant's action for personal

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injuries received in the crash of an airplane manufactured by appellee. The crash occurred in Louisiana and the trial court, applying Louisiana law, held that the statute which created appellant's right of action also extinguished it. 1

This diversity action is based upon the allegation that appellant, a resident of Florida, was injured as the result of appellee's negligence in the manufacture of the plane he was piloting. In a carefully worded and documented opinion 2 the court below held that it must look to the law of Louisiana to determine whether a claim exists upon which relief could be granted; that the statute of Louisiana creating the right of action provided that said right would expire at the end of one year; that the statute under consideration had been construed by the Louisiana Courts as extinguishing the right rather than merely barring the remedy; and that under the Louisiana statute so construed, appellant could not maintain the action brought by him in a Texas State Court before it was brought.

The court based its ruling upon articles of the Civil Code of Louisiana quoted by it 3 and decisions referred to in the

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published opinion. 4 The facts are set out more in detail in the District Court's opinion along with the reasoning by which its decision was reached and the authorities upon which it was based. We agree with the District Court in its reasoning and its conclusions, except for its one vital holding that the Louisiana statute creating the right also destroyed it. Our study of the Louisiana cases leads us to conclude that they do not support this portion of the District Court's opinion.

Its opinion on this crucial point (155 F.Supp. at page 287) reads thus:

'Louisiana follows the civil rather than the common law, and according to its law, statutes of prescription extinguish the right rather than merely bar the remedy which is the common law rule.'

This statement of the court does find support in the Ross case decided by a Court of Civil Appeals of Texas. That decision mentions several times that the Louisiana statutes creating the cause of action extinguish it at the end of one year in the absence of suit. The Texas court does not refer to the statutes involved nor to any Louisiana cases on the subject. The Badhwar case may also be taken as supporting the decision of the court below, although it held the action there involved to be barred also by the United States Carriage of Goods by Sea Act, 46 U.S.C.A. § 1300 et seq. We have read and considered those cases but are, as the court below indicated, bound by the holdings of Louisiana Courts. 5

We cannot agree with the conclusions of the District Court that, in Louisiana, all statutes of prescription 'extinguish the right rather than merely bar the remedy', and we do not find the problem before us as simple as the court below seems to have found it. As we read the Louisiana cases, its law is that a statute of limitation extinguishes the right only when such statute is peremptive rather than prescriptive. See our discussion of the subject in Mullins v. De Soto Bank & Trust Co., 5 Cir., 1945, 149 F.2d 864, 867.

We will consider first the two Louisiana cases relied upon by the court below. Guillory involved a suit brought by taxpayers to avoid payment of a tax levied under a special statute authorizing the police jury to levy taxes to assist in the construction of a railroad. The court held the action barred, using this language (28 So. at pages 900-901): 'This statute gives the right-- and the only right the law accords-- to contest elections held to take the sense of property taxpayers on a proposition to grant a tax in aid of a railway enterprise. By its terms such an election may be contested by taxpayers in interest * * *. But the suit must be brought within

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three months after the promulgation of the result of the election. * * * When a statute creates a right of action, and stipulates the delay within which that right is to be executed, the delay thus fixed is not, properly speaking, one of prescription, but it is one of peremption. Statutes of prescription simply bar the remedy. Statutes of peremption destroy the cause of action itself. That is to say, after the limit of time expires the cause of action no longer exists; it is lost. * * *'

The quoted language carries its own argument. As far as that case is concerned, the destruction of the cause of action was predicated on the fact that the statute creating the right to sue carried also its death sentence. It is equally clear that De Bouchel does not sustain the lower court's holding. That suit came before the Supreme Court twice. 6 De Bouchel sued Koss and nine other persons for false arrest and malicious prosecution, and the Supreme Court upheld dismissal because Koss was not sued within one year after the two separate causes of action accrued. We find no expression in either opinion beyond the use of the word 'extinguish' which would tend to support the thesis that the court was applying a peremptive statute. On the other hand, both decisions used, over and over, the term 'prescription, ' holding in the second hearing that prescription must be specially pleaded. It is noteworthy, also, that the statute of prescription involved here, Article 3536 of LSA-Civil Code of Louisiana, was the one enforced there along with the two succeeding sections. The Supreme Court of Louisiana simply announced that the 'plea of prescription of one year, filed in this court, is therefore sustained * * *.' 7

The later cases make clearer the important distinction between limitation statutes which are 'prescriptive' and those which are 'peremptive.' In Carpenter v. Cox, 1938, 186 So. 863, 865, the Court of Appeals of Louisiana 8 had before it an action by one transferee of a corporation against another transferee to collect portions of the corporation's federal income tax. Referring to Guillory, supra, the court quoted from 37 Corpus Juris, Limitations of Actions, § 5, the following:

"A wide distinction exists between pure statutes of limitation and special statutory limitations qualifying a given right. In the latter instance time is made an essence of the right created and the limitation is an inherent part of the statute...

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