LUMBERMEN'S MUTUAL CASUALTY COMPANY v. Wright

• Citation: 322 F.2d 759
• Decision Date: 19 September 1963
• Docket Number: No. 19070.,19070.
• Parties: LUMBERMEN'S MUTUAL CASUALTY COMPANY, Appellant, v. Rayford J. WRIGHT, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

322 F.2d 759 (1963)

LUMBERMEN'S MUTUAL CASUALTY COMPANY, Appellant, v. Rayford J. WRIGHT, Appellee.

No. 19070.

United States Court of Appeals Fifth Circuit.

September 19, 1963.

H. L. Hammett, New Orleans, La., for appellant.

A. V. Pavy, Edward Dubuisson, Opelousas, La., for appellee.

Before TUTTLE, Chief Judge, and RIVES and WISDOM, Circuit Judges.

WISDOM, Circuit Judge.

This case started out in 1947 as a run-of-the-mine tort action. Unfortunately, it developed eccentricities and a life of its own singularly resistant to routine. It is before this Court for the second time.

In the first proceedings, in 1954, the district judge held that Erie compelled dismissal of the complaint under Article 3519 of the LSA-Civil Code. This article requires dismissal of a suit for want of prosecution for five years. In such case the interruption of prescription by filing suit is considered as having never happened. The plaintiff appealed. We reversed the district court and remanded the case for trial. Wright v. Lumbermen's Mutual Casualty Company, 5 Cir., 1957, 242 F.2d 1; rehearing refused; certiorari denied, 354 U.S. 939, 77 S.Ct. 1397, 1 L.Ed.2d 1536. This time the defendant appeals; after a trial without a jury, the district court awarded the plaintiff damages for personal injuries. During oral argument of the second appeal, two members of this Court expressed doubts as to the correctness of the Court's decision on the first appeal. Counsel for the appellant was astonished at this unexpected good fortune. In the trial below and in his original brief on this appeal he had contended that the plaintiff's suit was prescribed by the one-year limitation for torts established by Article 3536, but he assumed that any question of applying Article 3519 to dismiss the suit was foreclosed, and he was driven therefore to distinguishing his argument on the first appeal from his argument on this appeal. Counsel for the appellee was surprised. He was unprepared to reargue the issue decided in 1957. Counsel for both parties filed supplemental briefs rearguing the points raised on the first appeal and arguing also such issues as the Law of the Case, res judicata, and waiver.

There is no doubt that the appellant is making the identical contention he made before. At the time suit was filed, the one-year prescription provided in Article 3536 had not run. Filing of the suit interrupted prescription. Unless this Court reversed itself and applied Article 3519, requiring the dismissal of the action and vitiating the interruption, Article 3536 could not be invoked. Under the doctrine of the Law of the Case, we decline to reopen the issue. We affirm the judgment below.

I.

In view of our holding, we consider it appropriate to review in some detail the issues raised in the earlier proceedings.

The plaintiff, Rayford J. Wright, was injured January 6, 1947, while loading asphalt in a truck. A twenty-five-foot length of steel pipe broke loose, struck him on his shoulder, and knocked him from the truck to the ground. March 25, 1948, under the Louisiana Direct Action Statute, LSA-R.S. 22:655, Wright filed a diversity suit against the defendant's assured, an asphalt distributor, alleging that his injury was caused by the negligence of one of the assured's employees. In May a workmen's compensation insurer intervened to present its claim as subrogee for certain payments it had made to the plaintiff. The defendant answered the initial complaint June 2, 1948, and responded to the intervention claim September 13, 1948.

Spiders spun cobwebs around the case for nearly six years. July 8, 1954, the district court on its own motion, applied Fed.R.Civ.P. 41(b)¹ and dismissed the suit, "No forward step having been taken for more than three years and in order to clear its docket". The order of dismissal gave the plaintiff ten days in which to seek reinstatement. The plaintiff's attorney asked that the suit be reinstated. July 15, 1954, the district judge, apparently satisfied with the plaintiff's explanation,² directed the clerk to reinstate the suit. September 14, 1954, the plaintiff requested that the case be placed on the trial calendar for hearing. Seven months later, March 24, 1955, the defendant filed a pleading, termed a "Supplemental Answer", alleging that the cause of action had prescribed under Articles 3519 and 3536 of the LSA-Civil Code.³ The plaintiff argues that the filing of an answer, under Louisiana law, waives pleas of prescription.⁴ The plaintiff contends also that this seven months delay constituted a waiver of the reinstatement of the complaint. April 29, 1955, the defendant filed a motion to dismiss on the same ground urged in its supplemental answer. At that time Article 3519 of the LSA-Civil Code provided:⁵

"Art. 3519. Abandonment or discontinuance of suit If the plaintiff in this case, after having made his demand, abandons or discontinues it, the interruption shall be considered as having never happened.

"Whenever the plaintiff having made his demand shall at any time before obtaining final judgment allow five years to elapse without having taken any steps in the prosecution thereof, he shall be considered as having abandoned the same."

Thus, Article 3536⁶ provides a prescriptive period for tort actions of one year; under Article 3518,⁷ filing of suit interrupts prescription, but, under Article 3519 the interruption is vitiated by abandonment of the suit.

After a hearing on the defendant's motion, the district court dismissed the suit. 134 F.Supp. 715. The district judge held that Article 3519 is "one of a series of articles supplementing Article 3536 of the Code which provides a one year prescription for tort action" and as an "integral part of the state statute of limitations" it must be applied by the federal courts in Louisiana under the Erie-York-Ragan doctrine.⁸ On appeal, the defendant argued that the decision "involves the integrity and fate of Rule 41(b)" with which Article 3519 is in conflict; that the mandatory application of Article 3519 renders Rule 41(b) nugatory and deprives the district court of control of its docket; that Erie is not applicable because Article 3519 is not a law of prescription, and the Louisiana Supreme Court had "consistently viewed Article 3519 of the Civil Code to be merely a rule of procedure."⁹

This Court reversed the district court and remanded the case for trial on the merits. 242 F.2d 1. Judge Borah, for the Court, held that Erie did not require dismissal of the suit, since Article 3519 is not "`an integral part of the state statute of limitations' within the meaning of the Guaranty Trust and Ragan cases"; that "a dismissal for want of prosecution does not affect the cause of action". The Court found support for this holding in certain cases in which the Louisiana court has said that "a dismissal for want of prosecution does not affect the cause of action and constitutes no bar to a subsequent suit on the same cause of action." The Court concluded its opinion with a quotation from Losch v. Greco, 173 La. 223, 136 So. 572, 573:

"Abandonment which results as a legal consequence of a plaintiff\'s failure to take any action in his suit during a period of five years merely bars his right to continue with the prosecution of that suit. It does not prevent his bringing another suit for the same cause of action; but, if he brings another suit for the same cause of action, the question whether his right of action is barred by prescription must be determined as if no suit had been theretofore brought."

At the trial, upon remand, the defendant renewed its plea of prescription under LSA-C.C.Article 3536 but made no renewal or reservation of its contention that the plaintiff had abandoned the case under Article 3519. On this second appeal, the defendant-appellant made no specification of error that the district court erred in not dismissing the suit under Article 3519. Counsel for the appellant started his oral argument by conceding that the decision on the first appeal foreclosed any question that, courtesy of Erie, the suit had been abandoned under Louisiana law.

In his supplemental brief, counsel for the appellant points to the quotation from Losch v. Greco in the Court's first opinion and argues that there is no question about it: "We have a plaintiff prosecuting an action which would be utterly barred by prescription in the State Court". This is undeniably true. If the action had been based on a contract, which is subject to ten years prescription, dismissal for want of prosecution for five years would not necessarily affect the cause of action. But when the action is in tort, and therefore prescribes in one year, Article 3519 would have barred recovery if this Court had sustained the district court's order of dismissal. The appellant argues fervently, therefore, that Article 3519 is such an essential part of the statutory scheme of limitations that it should prevent recovery in federal courts, as it would if the plaintiff's action were in Louisiana courts. The appellees rely on State v. United Dredging Co., 1951, 218 La. 744, 50 So.2d 826, in which the Louisiana Supreme Court described Article 3519 not as a statute of prescription but only as a provision of Louisiana general practice and procedure. The appellant counters with the familiar language from York: "It is therefore immaterial whether statutes of limitation are characterized either as `substantive' or `procedural' in State court opinions * * *. The intent of Erie * * * was to insure that in diversity cases * * * the outcome of the litigation in the federal court should be substantially the same * * * as it would be if tried in a State court." 326 U.S. at 109, 65 S.Ct. at 1470, 89 L.Ed. 2079.

As is evident, Article 3519 is in a penumbral area.

II.

"The doctrine of the Law of the Case embodies a salutary rule of practice that when a federal appellate court has established a rule of law for the case at bar it will not, on a...