Guidry v. Theriot

• Decision Date: 12 November 1979
• Docket Number: No. 64663,64663
• Citation: 377 So.2d 319
• Parties: A. J. GUIDRY et al. v. Eugene THERIOT et al.
• Court: Louisiana Supreme Court

Page 319

377 So.2d 319

A. J. GUIDRY et al. v. Eugene THERIOT et al.

No. 64663.

Supreme Court of Louisiana.

Nov. 12, 1979.

Ralph L. Kaskell, Jr., New Orleans, for defendants-applicants.

Edward J. Castaing, Jr., New Orleans, for plaintiffs-respondents.

LANDRY, Justice Ad Hoc.

Writs were granted in this matter to review the Court of Appeal judgment holding that a survival action instituted pursuant to La.C.C. Article 2315, by the major heirs of a tort victim, was timely filed when brought more than one year after the death of the decedent who had filed suit for her own injuries during her lifetime, and which judgment also held that the wrongful death suit brought by the children at the same time as the survival action, was prescribed. We affirm.

On February 20, 1974, A. J. Guidry and his wife, Jane Guidry, sued Dr. Eugene Theriot and his insurer, Continental Casualty Company, for damages sustained by Mrs. Guidry because of Dr. Theriot's alleged malpractice prior to July 9, 1973, while Mrs. Guidry was under his treatment and care. Mrs. Guidry died July 9, 1974, and, more than four years later, on March 28, 1978, Mr. Guidry filed a supplemental petition in the pending action in which he sought to substitute himself as party plaintiff in a survival action pursuant to Article 2315, above. Mr. Guidry's supplemental petition also asserted a wrongful death action on his own behalf. Three days later on March 31, 1978, a second supplemental petition was filed asserting survivorship and wrongful death claims on behalf of decedent's three major children, Blake P. Guidry, Brad J. Guidry and Bessy Guidry Lannep.

Defendants responded to the pleadings by filing exceptions of peremption and no cause of action. The trial court sustained the exceptions as to the children and dismissed both their survival and wrongful death demands. The exceptions filed in opposition to the husband's claims were dismissed, which dismissal is a non-appealable interlocutory judgment. LSA-C.C.P. Article 1841.

On appeal, the Court of Appeal, First Circuit, held that the survival action had been improperly dismissed because the one year period provided in Article 2315, above, is inapplicable when the tort victim files suit prior to his or her death. The court so held upon finding that once the victim files suit on his or her own behalf and later dies, the beneficiaries named under Article 2315, above, are required only to substitute themselves as party plaintiffs in accordance with LSA-C.C.P. Article 801 within the five year abandonment period stipulated in LSA-C.C.P. Article 561.

The Court of Appeal also held that the one year prescriptive period of La.C.C. Article 3536, applied to the children's wrongful death action, and dismissed their wrongful action as prescribed. From said ruling the children have appealed. Defendants have also appealed seeking reversal of the Court of Appeal judgment which refused to dismiss the survival action of the children.

Writs were granted herein to review the correctness of the lower court's decision and resolve certain conflicts in the decisions of the courts of appeal.

ONE CAUSE OF ACTION OR TWO?

Article 2315, above, provides as follows:

"Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.

The right to recover damages to property caused by an offense or quasi offense is a property right which, on the death of the obligee, is inherited by his legal, instituted, or irregular heirs, subject to the community rights of the surviving spouse.

The right to recover all other damages caused by an offense or quasi offense, if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of: (1) the surviving spouse and child or children of the deceased, or either such spouse or such child or children; (2) the surviving father and mother of the deceased, or either of them, if he left no spouse or child surviving; and (3) the surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving. The survivors in whose favor this right of action survives may also recover the damages which they have sustained through the wrongful death of the deceased. A right to recover damages under the provisions of this paragraph is a property right which, on the death of the survivor in whose favor the right of action survived, is inherited by his legal, instituted, or irregular heirs, whether suit has been instituted thereon by the survivor or not.

As used in this article, the words 'child', 'brother', 'sister', 'father', and 'mother' include a child, brother, sister, father, and mother, by adoption, respectively. " (Emphasis added)

The foregoing codal provision has been a prolific source of jurisprudential and doctrinal discussion and debate, resulting in continued uncertainty as to its true application. For a most scholarly discussion of the resultant problems and an explanation of how they arose, see Johnson, Death on the Callais Coach ; The Mystery of Louisiana Wrongful Death and Survival Actions, 37 La.L.Rev. 1 (1976). Among the recurring questions presented, is included that of whether the article creates one cause of action or two distinct and separate causes of an action. The answer to this specific question must be disposed of initially inasmuch as we believe a different result is dictated if there is but one cause of action than would be proper if the article creates two causes of action.

On its face, Article 2315, above, appears to grant the designated beneficiaries two separate and distinct causes of action, totally unrelated to each other. First, beneficiaries are given the right to recover the damages which the victim suffered and would have been entitled to recover from the tort feasor, if the victim had lived. This is commonly referred to as the "survival action" which, by the express terms of the Article, survives the death of the injured party and passes to the beneficiaries as an inheritable property right. In addition, the named beneficiaries are granted the right, if the victim dies as a result of the tort, to recover from the tortfeasor such damages as the beneficiaries have suffered as a result of the victim's wrongful death. This is ordinarily denominated as the "wrongful death action".

The nature of these two rights have been the subject of many decisions of this court and the intermediate appellate courts of this state and the subject of numerous articles by legal scholars. In Reed v. Warren, 172 La. 1082, 136 So. 59 (1931), this court stated that the wrongful death action was "not independent of but dependent upon" the survival action and it was indicated therein that these rights were "founded upon the same cause of action".

In his article Death on the Callais Coach, supra, Professor Johnson maintains that the language generally cited from Reed, above, is not authority for the principle that the survival and wrongful death actions established by Article 2315, above, are in fact a single cause of action. Another writer feels that some language in Reed, above, although dicta, supports the position that the two actions are but a single action. See 39 La.L. Review 1249 at n. 49.

In more recent pronouncements by this court, these two rights have been characterized as "entirely separate and independent of each other," Callais v. Allstate Insurance Co., 334 So.2d 692 (La.1975), on original hearing; and as "two types of death actions," Callais, above, on rehearing, and in McClendon v. State, Through Department of Corrections, 357 So.2d 1218 (La.1978), as "two separate and distinct actions."

We conclude that each of these actions is a separate and distinct cause of action. Although both actions arise from a common tort they are, nevertheless, separate and distinct because each arises at a different time. The survival actions comes into existence simultaneously with the commission of the tort and is transmitted to the beneficiaries upon the victim's death. The wrongful death action does not arise until the victim dies. Each right addresses itself to the recovery of damages for totally different injuries and losses. The survival action permits recovery only of the damages suffered by the victim from the time of injury to the moment of death. The wrongful death action is intended to compensate the beneficiaries for compensable injuries suffered from the moment of death and thereafter.

If the actions are deemed but one cause of action giving rise to recovery by different individuals it would follow that in the event the victim compromised his claim and then died the wrongful death action would be lost to the beneficiary. We do not believe the legislature intended such a result.

To put the issue at rest, we conclude and hold that the rights arising in instances of this nature are not a single right of action but two separate and distinct actions.

THE SURVIVAL ACTION

Before enactment of the Louisiana Code of Civil Procedure in 1960, Article 2315 beneficiaries were granted one year from the date of the victim's death to bring their survival action, regardless of whether the victim had filed suit prior to death. See, Gabriel v. United Theatres, 221 La. 219, 59 So.2d 127 (1952); Lally v. Taylor, 117 So.2d 602 (La.App.Orl., 1960); Romero v. Sims, 68 So.2d 154 (La.App. 1st Cir., 1953); Miller v. American Mut. Liability Ins. Co., 42 So.2d 328 (La.App. 1st Cir., 1949). In large measure, these decisions were based on the concept that "both at common law and at civil law a right of action for damages for personal injuries does not survive in case of death." Miller v. American Mut. Liability Ins. Co., above. It followed that since the victim's action did not survive his death, beneficiaries under 2315 were dependent upon that article for both the right to reinstitute the action and the time in which to do so. Lally v. Taylor, above. The cited authorities held that the...