Jones v. Philco Ford Corp.

• Decision Date: 22 November 1983
• Docket Number: No. 83,PHILCO-FORD,83
• Citation: 441 So.2d 1251
• Parties: Alice H. JONES, Administratrix of the Estate of Beverly Henry, et al. v.CORP., et al. CA 0057.
• Court: Court of Appeal of Louisiana — District of US

Page 1251

441 So.2d 1251

Alice H. JONES, Administratrix of the Estate of Beverly Henry, et al. v. PHILCO-FORD CORP., et al.

No. 83 CA 0057.

Court of Appeal of Louisiana, First Circuit.

Nov. 22, 1983.

Raymond L. Simmons, Baton Rouge, for plaintiff-appellant Alice H. Jones, Administratrix of the Estate of Beverly Henry, et al.

Paul Marks, Jr., Baton Rouge, for defendant-appellee Capital City South and Willie Spooner, Jr.

Eugene R. Groves, Baton Rouge, for defendant-appellee Gulf States Utilities Co.

Calvin E. Hardin, Jr., Baton Rouge, for defendant-appellee G.T.E. Products Corp. & Philco-Ford Corp.

Grayson H. Brown, Baton Rouge, for intervenor-appellee Travelers Indem. Co.

Before PONDER, WATKINS and CARTER, JJ.

WATKINS, Judge.

This is an action for damages brought by Alice H. Jones, arising out of the deaths of her daughter Beverly Henry and grandson Corey Henry, which allegedly were caused by a fire in Mrs. Henry's residence resulting from the explosion of a television set manufactured by Philco-Ford Corporation or G.T.E. Products Corporation, both of which were named as parties defendant. Also named as parties defendant were Capital City South, the partnership which owned the residence in which the fire occurred, Willie Spooner, Sr., alleged primary partner in Capital City South, and Gulf States Utilities Co., indicated to be the supplier of electricity to the residence.

The alleged accident and deaths occurred on February 9, 1981. Suit was filed by Alice H. Jones in her capacity as Administratrix of the Estates of Beverly Henry and Corey Henry on February 8, 1982. Thereafter, on March 4, 1982, a Supplemental and Amended Petition was filed, in which it is alleged that Alice H. Jones is appearing in her capacity as Administratrix of the Estates of Beverly Henry and Corey Henry, and as Tutrix of the minor children, Rhonda Henry, Bruce Henry and Herley Henry, who were children of Beverly Henry and brother and sisters of Corey Henry.

Gulf States Utilities filed a peremptory exception of prescription and no right of action, and a dilatory exception of lack of procedural capacity. Capital City South and Willie Spooner, Jr., filed similar exceptions of prescription, no right of action, and lack of procedural capacity. G.T.E. filed peremptory exceptions of no cause or right of action and of prescription and peremption, also asserting that "Philco-Ford Corporation" named co-defendant, did not exist as a legal entity. The minutes of court indicate the peremptory exceptions of no cause or right of action were overruled, but the peremptory exceptions of prescription filed by all defendants were sustained. Judgment was signed dismissing plaintiff's suit with prejudice. Plaintiff appealed.

We should note in passing that an intervention was filed before judgment by Travelers Indemnity Company alleging that Travelers had been subrogated by discharge of a fire insurance claim of Capital City South to all claims Capital City South might have against Philco-Ford and G.T.E. arising out of damages resulting from the explosion of the allegedly defective television set. The trial court did not directly rule upon the intervention in dismissing plaintiff's suit. As Travelers has neither appealed nor answered the appeal, we decline to make a determination of the present status of its intervention.

The sole question before the court is whether or not the one year prescriptive or peremptive period for the filing of an action for wrongful death acts as a bar to plaintiff's suit.

Plaintiff's original petition, filed one day less than one year after the date of the tragic fire, suggests that it is intended to institute an action for wrongful death, as the items of damage mentioned are "loss of support and earnings, loss of affection, companionship, society, motherly and brotherly love, and funeral expense (sic)." The amended petition, filed more than one year after death, contains elements of a survivorship action, as it mentions pain and mental anguish of the two decedents.

Louisiana's wrongful death action and survivorship action are both the product of amendment of LSA-C.C. art. 2315 (to use the number of the present Codal article) originating in the last century, the survivorship action in its present form originating in La. Act No. 223 of 1855 and the wrongful death action originating in La. Act No. 71 of 1884. In general, both types of actions, wrongful death (the right to recover for injuries to the living resulting from tortious fatal injury) and survivorship (the right to recover damages standing in the shoes of the decedent for the tortious injuries suffered by the decedent before his death, whether or not the tort had a causal connection with death) find their Codal roots in one brief and somewhat ambiguously worded paragraph of LSA-C.C. art. 2315, the fourth as art. 2315 presently stands amended. We quote the entire article so that the paragraph in question may be read in context:

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

Damages may include loss of consortium, service, and society, and shall be recoverable by the same respective categories of persons who would have had a cause of action for wrongful death of an injured person.

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 decease (sic), 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 sustained through the wrongful death of the deceased. A right to recover the 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."

The...