Gabriel v. United Theatres

• Decision Date: 24 March 1952
• Docket Number: No. 40282,40282
• Citation: 59 So.2d 127,221 La. 219
• Parties: GABRIEL et al. v. UNITED THEATRES, Inc., et al.
• Court: Louisiana Supreme Court

Page 127

59 So.2d 127

221 La. 219

GABRIEL et al. v. UNITED THEATRES, Inc., et al.

No. 40282.

Supreme Court of Louisiana.

March 24, 1952.

Rehearing Denied April 28, 1952.

Rosen, Kammer, Hopkins, Burke & Lapeyre, Alfred C. Kammer, New Orleans, for defendants.

Charles J. McCabe, New Orleans, for plaintiff-respondent.

MOISE, Justice.

This case is before us on writs to review a judgment of the Court of Appeal for the Parish of Orleans, annulling and reversing a judgment for defendants on the merits, in the district court, and remanding the case for further proceedings.

On July 17, 1941, plaintiff Alice Gabriel Strain sustained a fall in the Tivoli Theatre in New Orleans. On April 15, 1942, suit was instituted for recovery in her behalf of the sum of $1,590 as damages and for recovery in behalf of the husband of the sum of $34.50 for costs incurred by the community as a result of the fall. In due course the case was tried on the merits, and there was judgment in favour of defendants, dismissing plaintiffs' suit. This judgment was rendered on July 10, 1944, and signed on July 14, 1944; on June 21, 1945, plaintiffs took a devolutive appeal, and pending argument thereof, Alice Gabriel Strain died on October 30, 1945, from natural causes, unrelated to the injuries received by her in falling.

No further action was taken until May 2, 1950, when Marcelian Strain, her husband, presented a motion to the Court of Appeal for the Parish of Orleans suggesting that 'decedent (Alice Gabriel Strain) was married but once and then to Marcelian Strain, and from which marriage no children were born, and the decedent never adopted anyone and no one ever adopted her. That the decedent's father and mother and other ascendants all predeceased her. That, therefore, mover, Marcelian Strain, who is an appellant in his own right, is further vested with all of the rights of the said Alice Gabriel, wife of Marcelian Strain, and should be made sole plaintiff and appellant herein.' The Court of Appeal refused to sign the accompanying order.

On January 4, 1951, defendants filed a motion to dismiss the appeal taken by Alice Gabriel Strain on the ground that no parties, ascendants, descendants, or surviving spouse, or any other persons entitled under Article 2315, Revised Civil Code, having been made a party or parties thereto within one year from the date of death of Alice Gabriel Strain, October 30, 1945, the right of action as to her had perempted.

After hearing, the motion was denied, and the case remanded for further proceedings, the judgment of the district court being 'annulled, avoided and reversed.'

The sole question presented for our consideration is whether the right of Marcelian Strain to prosecute the appeal of his deceased wife from the adverse judgment has perempted.

Defendant has urged the following errors in the appellate judgment under review:

(1) That the time limitation granted to designated classes of beneficiaries under the survival of action statute, Article 2315 of the Revised Civil Code, as amended, being one year from the death of the injured person, applies as well to appeals from adverse judgments (i.e., where the cause of action has not been reduced to a property right by a favorable judgment in the district court) as to the institution of proceedings in courts of original jurisdiction; that where none of the statutory beneficiaries are made parties to the action within the time prescribed by the statute for survival of the action--one year--the cause of action abates. They cite in support of this position Chivers v. Roger, 50 La.Ann. 57, 23 So. 100; Payne v. Georgetown Lumber Co., 117 La. 983, 42 So. 475; Thompson v. New Orleans Ry. & Light Co., 145 La. 805, 83 So. 19; Williams v. Campbell, La.App., 185 So. 683; Castelluccio v. Cloverland Dairy Products Co., 165 La. 606, 115 So. 796; Gallaher v. Ricketts, La.App., 187 So. 351; Miller v. American Mutual Liability Insurance Co., La.App., 42 So.2d 328. They stress the argument that since the right of Alice Gabriel Strain to recover under Article 2315 had not been merged into a judgment in her favor, it remained nothing more than a cause of action, even though a devolutive appeal had been taken, and as such, the peremptive period of one year applied thereto.

(2) That if Marcelian Strain had no right to be made a party under Art. 2315, then he has no right at all, because a right of action for damages for personal injuries being strictly personal and noninheritable, unless provided otherwise by special statute, and the right of action for damages in this particular case not having been merged into a judgment, it is not inheritable by the husband under any other article of the Civil Code. Kerner v. Trans-Mississippi Terminal R. Co., 158 La. 853, 104 So. 740; Hardtner v. AEtna Casualty & Surety Co., La.App., 189 So. 365; Payne v. Georgetown Lumber Co., supra.

(3) That in any event the judgment of the district court should not have been annulled and reversed in connection with the remand, for the reason that under the jurisprudence the proceedings were valid up to the death of Alice Gabriel Strain. Cambon Bros. v. Suthon, 148 La. 669, 87 So. 512; Succession of Bonnette, 188 La. 297, 176 So....