Dunn Const. Co. v. Bourne

• Decision Date: 04 March 1935
• Docket Number: 31560
• Citation: 159 So. 841,172 Miss. 620
• Court: Mississippi Supreme Court
• Parties: DUNN CONST. CO. v. BOURNE

159 So. 841

172 Miss. 620

DUNN CONST. CO. v. BOURNE

No. 31560

Supreme Court of Mississippi

March 4, 1935

Division A

Suggestion Of Error Overruled April 15, 1935.

APPEAL from chancery court of Pearl River county HON. T. PRICE DALE Chancellor.

Suit for compensation by J. E. Bourne, employee, opposed by the Union Indemnity Company, insurer, wherein the Dunn Construction Company, employer, was subsequently made a party. From a decree for employee, employer appeals. Reversed and bill dismissed.

Reversed and bill dismissed.

Parker & Shivers, of Poplarville, for appellant.

The appellant, Dunn Construction Company, contends that its demurrer should have been sustained; that section 31 of the Louisiana Compensation Act of 1914, as amended, limited complainant and his rights to maintain a suit to one year from the date of the accident or from the date of payments as a result of the accident.

Louisville & Nashville R. R. Co. v. Dixon, 150 So. 811, 168 Miss. 14; Floyd v. Vicksburg Cooperage Co., 126 So. 395, 156 Miss. 567; Travelers Insurance Co. v. Inman, 138 So. 339, 167 Miss. 288.

Appellant takes the position that as to the bar provided by Section 31 of the Louisiana Compensation Act, the statute law of the State of Mississippi and the rulings of the Supreme Court of the State of Mississippi shall govern, that this is a question of procedure and the law of the forum should control and does control.

Section 2320, Code of 1930; Sections 2097 and 3552, Louisiana Civil Code.

We take the position that as to any statute where the limit of time within which suit may be brought is a condition attached to the right, an integral part of the right, granted by the statute or cause of action, the time limit is as is held by the courts of both Mississippi and Louisiana not a statute of limitations and, therefore, the provisions of law relative to the interruption of prescription do not apply, it being held specially by the Louisiana Court that such a right or time limit is a pre-emption.

Mathews v. Kansas City Southern Ry. Co., 10 La. App. 382, 120 So. 907-11; Kerner v. Trans-Miss., etc., Co., 158 La. 853, 104 So. 740; Partee v. St. Louis & S. F. R. Co., 204 F. 970, 51 L.R.A. (N.S.) 721; Gulf & Ship Island R. R. Co. v. Bradley, 110 Miss. 152, 69 So. 666.

There is no better established principle in our jurisprudence than this, that no man shall be affected by a suit and decree to which he was neither party nor privy and of which he had no legal notice.

Section 110, Griffith's Mississippi Chancery Practice.

The record here discloses that the Dunn Construction Company was not a party to any cause of action until September 5, 1933, at which time the amended and supplemental bill was filed bringing it into the picture for the first time.

Foster v. Canning Co., 71 Miss. 624, 15 So. 931; Moore v. Luke, 70 So. 84, 110 Miss. 207; Pennington v. Purcell, 125 So. 79, 155 Miss. 554.

It is well settled in the State of Mississippi that the filing of an amended bill, making new parties, as in the present case, is a new cause of action in so far as the new parties are concerned, and any statutes of limitations or statutes barring the recovery at an earlier date apply and can be availed of by the persons being made defendants or a new party by a supplemental bill.

Griffith's Chancery Practice, Section 398; Brown v. Gouldsby, 34 Miss. 437; Potts v. Hines, 57 Miss. 735; Cox v. Mortgage Co., 88 Miss. 88, 100.

Section 2313 of the Mississippi Code of 1930 reads as follows: "The completion of the period of limitation herein prescribed to bar any action, shall defeat and extinguish the right as well as the remedy; but the former legal obligation shall be a sufficient consideration to uphold a new promise based thereon."

Musser v. First National Bank of Corinth, 147 So. 783, 165 Miss. 873; Green v. Green, 110 So. 218, 145 Miss. 87; Travelers Ins. Co. v. Inman, 138 So. 339, 167 Miss. 288.

In applying the remedy, the law of the forum controls and the court having jurisdiction of the parties applies the remedies of the forum as nearly as practically possible to the rights existing under the foreign law.

Floyd v. Vicksburg Cooperage Co., 126 So. 395, 156 Miss. 567; Louisville & Nashville R. R. Co. v. Dixon, 150 So. 811, 168 Miss. 14.

The period of one year prescribed in their Workmen's Compensation Law is not a mere statute of limitations but is a matter of substance integral in the statute, a change in it with regard to the allowable period for suits could not be made so as to effect suits for injuries occurring previous to the change or amendments.

White v. Louisiana Western R. R. Co., 140 So. 486; Floyd v. Vicksburg Cooperage Co., 126 So. 395, 156 Miss. 567.

The law must be interpreted as expressing precisely what it says or what the words are commonly understood to mean.

Koch v. Bridges, 45 Miss. 257; State v. Gragiacomo, 71 Miss. 417; Hawkins v. Carroll, 50 Miss. 735; Peeler v. Peeler, 68 Miss. 141; Hammer v. Lumber Co., 100 Miss. 349, 56 So. 466; State v. Traylor, 100 Miss. 544, 56 So. 521; Rhys v. Mood, 113 So. 367; Wyatt v. Finely, 118 So. 874.

Hathorn & Williams, of Poplarville, for appellee.

The Louisiana Workmen's Compensation Act created an obligation in solido against the Union Indemnity Company and the Dunn Construction Company, and the filing of suit against Union Indemnity Company, within one year from the date of the accident, suspended the running of the statute as to both the Union Indemnity Company, the insurer, and Dunn Construction Company, the employer.

Sections 2097 and 3552, Louisiana Civil Code; Ryers v. Rothschild, 155 So. 785; Bernard v. Aetna Ins. Co., 150 So. 305; Dodd v. Lakeview Motors, Inc., 149 So. 278; American Heating & Plumbing Co. v. West End Country Club, 131 So. 466; Zeller v. Louisiana Cypress Lbr. Co., Ltd., 121 So. 671; Continental Supply Co. v. Fisher Oil Co., 100 So. 64; Lutz v. Long-Bell Lbr. Sales Corporation, 153 So. 319; Turner, Wilson & Co. v. McMain, 29 La. Ann. 298; Frazier v. Hardee, 21 La. Ann. 541; Article 7, Sections 10 and 29, Constitution of Louisiana.

Under the well settled law of Louisiana, appellant and the Union Indemnity Company are joint obligors and the filing of the suit against, and service of process upon, the Union Indemnity Company interrupted the running of the one year statute of limitations as to appellant. It appears, therefore, that the question presented for the decision of this court is whether or not this court will follow the well settled law of Louisiana on this point.

Travellers' Ins. Co. v. Inman, 128 So. 877; Floyd v. Vicksburg Cooperage Co., 126 So. 395.

When the Court of Appeals of Louisiana, which is the court of last resort in compensation cases, held, as is shown in the many cases cited above, that the employer and the insurer in compensation cases are jointly liable, and that filing of suit against one suspends the running of the statute of limitations as to both, then such decisions by the court became a part of the statute to the same extent as if it had been written in the face of the statute.

59 C. J. 1036, par. 613; 25 R. C. L. 462, par. 5; Douglas v. Pike County, 101 U.S. 677, 25 L.Ed. 968; Marine National, etc., v. Kaltz-Zumen et al., 55 S.Ct. 226, 79 L.Ed. 208; U. S. v. Guaranty Co., 55 S.Ct. 221, 79 L.Ed. 199.

Louisiana statutes will be interpreted by the Supreme Court of Mississippi in accordance with the aforesaid decisions of the courts of Louisiana.

59 C. J. 1037, par. 614; Floyd v. Vicksburg Cooperage Co., 126 So. 395.

The statutes of a foreign state will be interpreted in accordance with the decisions of the courts of that state.

59 C. J. 1037, par. 614; 25 R. C. L. 952, par. 206.

Argued orally by H. H. Parker, for appellant, and by E. B. Williams, for appellee.

OPINION

McGowen, J.

Bourne, appellee, instituted this suit in the chancery court of Pearl River county originally against the Union Indemnity Company seeking to recover compensation alleged to be due him under the Workmen's Compensation Act No. 20 of the Laws of Louisiana of 1914, and amendments thereto, for injuries sustained while working for the Dunn Construction Company. This suit was brought within twelve months of the date of the accrual of the cause of action. The liability against the Union Indemnity Company was that of insurer, as contemplated by the act. The cause was transferred to the federal court and remanded by it to the chancery court. The insurer had become insolvent in the meantime, and thereupon on September 5, 1933, Bourne filed his supplemental or amended bill for the first time making the Dunn Construction Company, the appellant here, a party thereto. This amended bill was filed more than twelve months after the cause of action accrued.

The Dunn Construction Company appeared and demurred to the bill on the ground that the cause of action was barred by the twelve-month limitation found in section 31, Act No. 85, Laws of Louisiana of 1926 (page 124). The cause of action here arose subsequent to the passage of that act. The demurrer was overruled, the Dunn Construction Company answered, and there was a decree in favor of Bourne for the amount claimed to be due him, from which the Dunn Construction Company prosecutes an appeal here.

It is necessary to state further that Bourne was an employee of the Dunn Construction Company, and the injury alleged to have been sustained by him occurred while he was engaged in its service on a contract being executed and performed wholly in the state of Louisiana.

The sole assignment of error presented here is that the court below erred in overruling the demurrer filed by appellant to appellee's bill.

Confessedly there was no effort to sue the Dunn Construction Company within...