Bounds v. TL James & Company

• Citation: 124 F. Supp. 563
• Decision Date: 24 September 1954
• Docket Number: Civ. No. 4519.
• Parties: Mrs. Laura BOUNDS v. T. L. JAMES & COMPANY, Inc., and National Surety Corporation.
• Court: U.S. District Court — Western District of Louisiana

124 F. Supp. 563

Mrs. Laura BOUNDS v. T. L. JAMES & COMPANY, Inc., and National Surety Corporation.

Civ. No. 4519.

United States District Court W. D. Louisiana, Monroe Division.

September 24, 1954.

Hynes & Mathews, Benton & Moseley, Baton Rouge, La., for plaintiff.

Huckabay, Seale, Kelton & Hayes, Breazeale, Sachse & Wilson, Baton Rouge, La., Theus, Grisham, Davis & Leigh, Monroe, La., for defendants.

DAWKINS, Jr., Chief Judge.

Presented here is a wrongful death action growing out of an automobile accident in which James R. Bounds, a bachelor, was killed on July 19th, 1952.

Within less than one year from the accident, on June 15th, 1953, his mother, Mrs. Laura Bounds, filed this suit against defendants for damages she allegedly suffered as the result of her son's death. About a month later, in "July, 1953", the exact date not being shown by the record, Mrs. Bounds died. At that time the suit was not at issue and is not even now, various preliminary motions having been filed by defendants, who have not yet been required to answer.

On August 18th, 1954, Miss Madge Bounds, appearing as Administratrix of Mrs. Laura Bounds' estate, having been appointed by a Chancery Court in Mississippi where her mother was domiciled, filed a motion to be substituted as party plaintiff under Rule 25(a) (1), Fed.Rules Civ.Proc., 28 U.S.C.A. Defendants oppose the motion, contending that the action abated when Mrs. Bounds died.

Under article 2315 of the Louisiana Statutes Annotated — Civil Code, her husband — the father of James R. Bounds — having died years earlier, Mrs. Laura Bounds was her son's first "survivor", or beneficiary, since he had never married. That article, as last amended by Act No. 333 of 1948 of the Louisiana Legislature, reads as follows, in pertinent part:

"Art. 2315. 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 children, including adopted children and children given in adoption, or spouse of the deceased, or either of them, and in default of these in favor of the surviving father and mother or either of them, and in default of any of the above persons, then in favor of the surviving blood brothers and sisters, or either of them, for the space of one year from the death. * * *

"The survivors above mentioned may also recover the damages sustained by them by the death of the parent or child or husband or wife or brothers or sisters or adoptive parent, or parents, or adopted person, as the case may be." (Emphasis supplied.)

Originally, and until July 28, 1954, article 21 of the Louisiana Code of Practice read:

"21. Death of party after answer filed — Action not abated. — Actions do not abate by the death of one of the parties after answer filed."

In applying and interpreting these articles against the background of Roman and French law, as well as the common law, from which Louisiana tort law has grown, the Louisiana Supreme Court has held¹ that an action to recover damages for tortious personal injuries sustained by a decedent, or for the wrongful death of the person injured, which has not been reduced to judgment, is a purely personal, nonheritable action which does not survive the death of the first beneficiary or beneficiaries ("survivors") named in article 2315, notwithstanding the provisions of article 21 of the Code of Practice. The reasoning was that a cause of action for personal injuries suffered by a decedent, or for his wrongful death, did not exist originally under civil or common law. It is purely a creature of statute. Being such, it is to be strictly interpreted, and to be held within the express limits set forth by the Legislature in the article.

In Chivers v. Roger, supra 50 La. Ann. 57, 23 So. 102 footnote 1, the Court said:

"* * * 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. * * * `It took special legislation to bestow (the right of action) upon certain named beneficiaries, and that legislation cannot be liberally interpreted.' * * * the legislature carefully confined the transmission of the right of action therefor to `the survivors above mentioned'; that is to say, those who are mentioned in the Code. Rev. Civ.Code, art. 2315. The result of this investigation is that the right of action for damages for a personal injury, whether the injured person died from the effect thereof, or subsequently from some other cause, is just the same, * * *.

"* * * In solving this question we must keep in mind the underlying and cardinal distinction which exists between the Civil Code and Code of Practice; the former being the legislative embodiment of the civil law, and the latter being a codification of the rules of practice. * * * The Code provides that the right of this action for personal injuries survives the death of the person injured in favor of certain designated individuals, as beneficiaries in the order named; and, in default of one or more of them, by death or otherwise, the next one in order acquires that right of action in his or her favor. If, then, one of the beneficiaries first enumerated should institute a suit, and cause it to be put at issue, and thereafter die, and his beneficiary heirs should, on that account, inherit the pending action, the result would necessarily be to confer the benefit of the statute on persons not contemplated therein, and defeat the claim of the one who would otherwise have succeeded the deceased thereto. * * *" (Emphasis supplied.)

In 1946 the Louisiana Legislature enacted Act No. 239, which, as rewritten "so as to eliminate the repetition and redundancy in the original statute", was carried forward into the Revised Statutes of 1950, as R.S. 13:3349, reading:

"§ 3349. Actions do not abate by death of party after issue joined

"There are no exceptions to the rule that an action does not abate by the death of one of the parties thereto after issue joined therein. This Section shall apply to all actions now pending as well as those which may be hereafter instituted. No act of the legislature heretofore passed, nor any acts hereafter passed shall be construed as making an exception to this rule, unless such act specifically and specially makes an exception thereto." (Emphasis supplied.)

In a comment by Professor Henry G. McMahon, found in West's LSA-Revised Statutes, we are informed that "* * * The purpose of Acts 1946, No. 239, §§ 1-5, was to work a legislative overruling of Chivers v. Roger * * *." Yet in 1952, the Louisiana Supreme Court, in Gabriel v. United Theatres, 221 La. 219, 59 So.2d 127, 129, had this to say of that Act:

"The Legislature passed Act No. 239 of 1946, LSA-R.S. 13:3349, relating to the abatement of actions. This statute was not urged or pleaded in either the court of original or appellate jurisdiction by either litigant. Nevertheless, we take notice of its existence. It is, however, our belief that Act No. 333 of 1948 amending and reenacting Article 2315 of the Revised Civil Code repeals the 1946 act by implication. Cessante ratione legis, cessat ipsa lex. (`Reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself.')"

At its regular session of 1954, the Louisiana Legislature enacted Act No. 57, reading as follows:

"Section 1. Article 21 of the Code of Practice of the State of Louisiana is hereby amended and re-enacted so as to read as follows:

"Art. 21. No abatement on death of party

"An action does not abate on the death of one of the parties after suit has been filed, and the heirs, legatees, administrator, or executor of the deceased party may be substituted as parties in any case wherein they succeed, by operation of law, to the rights of the deceased party.

"Section 2. All laws or parts of laws in conflict herewith are hereby repealed." (Emphasis supplied.)

By Act No. 59 of 1954, the Legislature amended and re-enacted LSA-R.S. 13:3349, so as to read:

"§ 3349. Actions do not abate by death of party after suit filed

"There are no exceptions to the rule that an action does not abate by the death of one of the parties thereto after suit has been filed. This section shall apply to all actions now pending as well as those which may be hereafter instituted. No act of the legislature heretofore passed, nor any acts hereafter passed shall be construed as making an exception to this rule, unless such act specifically and specially makes exception thereto." (Emphasis supplied.)

Acts 57 and 59 of 1954 became effective on July 28th, 1954. As stated above, the motion to substitute Miss Madge Bounds, Administratrix, as plaintiff in this suit, was filed on August 18th, 1954. Admitting that the suit was not "at issue" when Mrs. Bounds died, her counsel insist that these Acts should be given retrospective effect so as to keep the original cause of action alive.

We do not agree at all.

To begin with, the cause of action under article 2315 — originally nonexistent under civil or common law — sought to be maintained first by Mrs. Bounds, now by her Administratrix, was created by the Legislature in derogation of common or civil right. Therefore, as the Louisiana courts repeatedly have said, it must be narrowly, strictly construed. Article 2315 has not been amended since its last re-enactment in 1948. Only Article 21 of the Code of Practice — a procedural, not substantive, set of rules — and LSA-R.S. 13:3349, also procedural in our judgment, were amended. By amendment of mere procedural statutes the Legislature cannot enlarge, reduce or modify vested substantive rights, nor can it create new ones.

The cause of action for wrongful death, created by Article 2315, is substantive, purely personal, and accrues only to the beneficiaries named, in the order of their naming. If a first-named beneficiary...