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...

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