Jones v. Texas & P. Ry. Co.

• Decision Date: 14 February 1910
• Docket Number: 17,937
• Citation: 125 La. 542,51 So. 582
• Parties: JONES v. TEXAS & P. RY. CO. In re TEXAS & P. RY. CO
• Court: Louisiana Supreme Court

51 So. 582

125 La. 542

JONES v. TEXAS & P. RY. CO.

In re TEXAS & P. RY. CO

No. 17,937

Supreme Court of Louisiana

February 14, 1910

Action by John Y. Jones against the Texas & Pacific Railway Company. Judgment for plaintiff was affirmed by the Court of Appeal and defendant applies for certiorari or writ of review. Affirmed.

Wise Randolph & Rendall, for appellant.

Ponder & Fraser, for appellee.

OPINION

PROVOSTY J.

Plaintiff sues in damages for the value of two of his mules, alleged to have been negligently run over and killed by a locomotive of the defendant company. One of the mules died immediately. The other survived two months. Both the district court and the Court of Appeal found defendant responsible, and fixed the value of the mules at $ 300, or $ 150 apiece. The suit was filed more than one year after the accident, but less than one year after the death of the mule which survived. Defendant pleaded the prescription of one year, and both courts sustained it as to the first mule, and overruled it as to the second. Only the latter ruling is here for review.

The facts are that the mule died as a result of the accident, but that the serious nature of his injuries was not known until revealed by his death. He was not even lamed, although he manifested a disinclination or disability to move faster than in a walk. He was struck on the hip, receiving a wound supposed to be a mere flesh wound. He was treated for a few days for this wound, and was then led to pasture, two miles away, and there left to get well. Instead of getting well, he died. The question is as to whether the prescription runs from the time of the accident, or only from the death of the mule.

Article 3537, Civ. Code, [ILLEGIBLE WORDS] prescription "runs from the day [ILLEGIBLE WORDS] ages were sustained." In the cases [ILLEGIBLE WORD] v. Railroad Co., 16 La.Ann. 354, [ILLEGIBLE WORD] Lizardi v. N. O. Banking Co., 25 La.Ann. 416, Hotard v. Railroad Co., 36 La.Ann. 45 [ILLEGIBLE WORD] Heath v. Railroad Co., 37 La.Ann. 728, [ILLEGIBLE WORD] numerous others to be found in our Reports, it was held that the prescription runs from the day the damages were sustained, not from the day of the wrongful act. The reason is that, in order that there should be a cause of action for damages ex delicto, two things must concur: First, a wrongful act; and, secondly, a loss or prejudice resulting from the wrongful act. The wrongful act itself does not suffice. It must be followed by a loss or prejudice. It is the combination of the two which gives rise to the cause of action; and as the damage cannot precede, but must needs come after, the wrongful act, the prescription runs from it, and not from the wrongful act. And, of course, until a cause of action has come into existence, prescription cannot run on it. Laurent, vol. 32, No. 20; Hernandez v. Montgomery, 2 Mart. (N. S.) 422, 433; Gueno v. Soumastre, 1 La.Ann. 44.

Defendant's learned counsel argue that in the instant case the damage must be considered to have been sustained at the time of the accident, because the mule never recovered, but from that time was of no value. The answer is that, while the damage was, as a matter of fact, sustained at that time, for the value of the mules was totally destroyed from that moment, it was not sustained, as a matter of law, until the death of the mule, because the fact of its having been sustained was not until then susceptible of ascertainment. In law, things which are not susceptible of ascertainment are considered as not existing. "De non apparentibus et non existentibus eadem est ratio." Until by the death of the mule the damage had been revealed, or, to use the legal term, had been made certain, plaintiff had no cause of action for it. Until then, it was at best uncertain, contingent, speculative; and nothing is better settled in the law of damages than that a damage of that character does not give rise to a cause of action. 8 A. & E. E. of L. 608, and Louisiana decisions there cited.

A damage can be considered to have been sustained, within the meaning of article 3537, supra, only when it has manifested itself with sufficient certainty to be susceptible of proof in a court of justice.

"Although the action has accrued (soit ouverte), so long as it cannot be usefully prosecuted, prescription does not run. The reason is that prescription is founded on the negligence of the creditor; and a creditor cannot be held to have been negligent in bringing his suit, so long as it was not possible for him to bring it usefully." Pothier, Prescription, No. 37.

Had plaintiff brought this suit before the death of the mule, a complete defense would have been that, for all that was known, the mule was as valuable as ever, barring the flesh wound, which would, doubtless, soon be healed. Until the fatal nature of the mule's injury revealed itself, therefore, plaintiff had no cause of action, and prescription did not run.

That a damage thus hidden, or not developed, does not in legal contemplation exist, finds abundant illustration in the numerous cases in France where parties, after having recovered in a first suit the damages then known to have been suffered from the tort, were permitted to recover in a second suit the damages subsequently appearing, whose existence could not be known at the time of the first suit. See Carpentier and Du Saint, Repertoire de Juris. Vo. Chose Jugee, Nos. 439, 440, 442; Vo. Chemin de Fer, Nos. 4315, 4316, from which we translate as follows:

"The rule by which a cause subsequent to the judgment justifies a new suit has given occasion to a number of interesting decisions in the matter of damages. Thus it has been decided that a person who has obtained damages for wounds caused by an accident, can thereafter demand damages because of the aggravation of the effects of the same accident [citing a number of decisions]. Two suits for damages caused by the same tort will at times present but one and the same question for decision, and at times will present two different questions. At first blush, the two suits...