Louisville & N. R. Co. v. Dixon

• Decision Date: 13 November 1933
• Docket Number: 30541
• Citation: 168 Miss. 14,150 So. 811
• Parties: LOUISVILLE & N. R. CO. v. DIXON
• Court: Mississippi Supreme Court

150 So. 811

168 Miss. 14

LOUISVILLE & N. R. CO. v. DIXON

No. 30541

Supreme Court of Mississippi

November 13, 1933

Division B

1. LIMITATION OF ACTIONS.

Where statute creates right of action not existing under common law, time fixed within which action may be begun is substantive condition, not statute of limitations, so that right to institute action under statute becomes extinct after time fixed.

2. MASTER AND SERVANT.

Time prescribed by Louisiana compensation laws for institution of suit not being a statute of limitations, but condition of right to sue, cause of action for employee's death became extinct after expiration of time prescribed for suit notwithstanding suit was brought outside of Louisiana (Act La. No. 20 of 1914, section 31).

3. LIMITATION OF ACTIONS.

In Louisiana, statutes of limitation do not extend or supplement time for institution of suit, where such time allowed is integral part of right asserted in suit (Civ. Code La section 3518).

4. LIMITATION OF ACTIONS.

Statute permitting new action upon same cause within year after original suit, where original suit was brought in time and defeated for reasons other than upon merits, held not to extend time prescribed for institution of suit under Louisiana compensation laws (Code 1930, section 2314; Act La. No. 20 of 1914, section 31).

Hon. D M. RUSSELL, Chancellor.

APPEAL from chancery court of Hancock county, HON. D. M. RUSSELL, Chancellor.

Suit by Mrs. Homer Dixon, administratrix, under the Louisiana Workmen's Compensation Law, against the Louisville & Nashville Railroad Company for the death of her intestate. From a decree for plaintiff, defendant appeals. Reversed and dismissed.

Reversed and dismissed.

E. J. Gex, of Bay St. Louis, and Smith & Johnston, of Mobile, Ala., for appellant.

The plaintiff's rights, if she had any, under the Louisiana Workmen's Compensation Law were lost by delay.

Travellers' Insurance Co. v. Inman, 138 So. 339; G. & S. I. R. Co. v. Bradley, 69 So. 666; Western Fuel Co. v. Garcia, 257 U.S. 237; The Harrisburg, 119 U.S. 199.

The same statute which gives the rights under the Louisiana Compensation Law entirely new to the common law or civil law also prescribes the period of time within which actions must be filed to enforce such rights. When this is done the time within which to file the action is a part of the right given, and the right expires within the time provided.

G. & S. I. R. Co. v. Bradley, 69 So. 666; Western Fuel Co. v. Garcia, 257 U.S. 237; The Harrisburg, 119 U.S. 199.

The complainant relied upon the Mississippi statute, section 2314, which we do not think applies to this cause of action brought under the Louisiana Workmen's Compensation Law, especially as the statute that gives this right, unknown to the common or civil law, likewise prescribes the time within which the right may be enforced.

Section 2314 of the Mississippi Code does not apply.

Ford, Bacon & Davis, Inc., v. Colentine, decided by the United States Circuit Court of Appeals for the Fifth Circuit, April 15, 1933; White v. Louisiana Western Ry. Co., 174 La. 308, 140 So. 486.

The Louisiana court expressly holds that section 31 is not merely a statute of limitation or prescription, but a condition.

Carroll v. International Paper Co., 143 So. 275.

To apply section 2314 of the Mississippi Code would deprive the defendant of its property without due process of law.

Home Ins. Co. v. Dick, 281 U.S. 397.

Where the time is prescribed in the act within which the claim must be filed and there is no qualification, such time limit is mandatory and unless claim is made for compensation within the statutory limit the claim is barred.

Section 545 of Schneider on Workmen's Compensation Law; 1 C. J. 989; The Harrisburg, 119 U.S. 199; White v. Louisiana Western Ry. Co., 174 La. 308, 140 So. 486; Atlantic Coast Line R. R. v. Burnette, 239, U.S. 199, 36 S.Ct. 75, 60 L.Ed. 226; Engel v. Davenport, 271 U.S. 33, 46 S.Ct. 410, 70 L.Ed. 813.

A wide distinction exists between pure statutes of limitation and special statutory limitations qualifying a given right. In the latter instance time is made an essence of the right created and the limitation is an inherent part of the statute or agreement out of which the right in question arises, so that there is no right of action whatever independent of the limitation. A lapse of the statutory period operates, therefore, to extinguish the right altogether.

37 C. J., section 5, p. 686; 37 C. J., section 51, pp. 732, 733.

Gex & Gex, of Bay St. Louis, and W. B. Grant, of New Orleans, La., for appellee.

As to the laws of which state govern it is interesting to read the Louisiana statutes. Section 13 of the Code of Practice of Louisiana provides: "The forms, the effects, and the prescriptions of actions, are governed by the law of the place where they are brought; but contracts are governed by the law of the place where they are entered into."

Newman v. Eldridge, 107 La. 315, 31 So. 688; Lacoste v. Benton, 3 La. Ann. 220; Bacon v. Dahlgreen, 7 La. Ann. 605; Walworth v. Routh, 14 La. Ann. 205.

Appellants in their supplemental brief say that their right is based upon the Louisiana statute and that actions must be brought within one year thereunder. We concede that and we submit that the undisputed facts are that the action was brought within one year, as shown by the record.

The case of Scottish Rite Insurance Company, 110 Miss. 23, disposes of every contention raised by appellant on that question, because in that case the contract of insurance, which was certainly a personal contract, limited the right of action to one year, yet this court, on facts exactly like those involved in this case, held that six years after the filing of the action a non-suit was taken and the cause abated and not tried on its merits same could be filed within one year thereafter under our statute and all rights were thereby preserved.

Section 2645 of Hemingway's 1927 Code (section 2314 of the Mississippi Code of 1930) has the effect of restoring the original date of filing of the first suit.

The Louisiana Compensation Act specifically provides for interruption of the one-year statute of limitation by the filing of a claim for the amount due thereunder.

Section 31, Workmens' Compensation Act of Louisiana; Lemieux v. Cousins, 98 So. 255; Vernon v. I. C. R. R., 97 So. 493; Spring v. Barr, 120 So. 256; B. J. Wolf & Sons v. New Orleans Tailor Made Pants Co., 34 So. 590.

Upon interruption of prescription in the manner provided by statute, the full time provided must elapse after the cessation of such interruption, before the claim is barred.

Spring v. Barr, 120 So. 256; Moloney v. Cressler, 236 F. 636.

The Louisiana statute must be liberally interpreted.

Lemieux v. Cousins, 98 So. 255; Norwood v. Lake Bisteneau Oil Co., 83 So. 25.

Prescription having been interrupted by the filing of the original suit in Mississippi, and the bar not having thereafter become complete under the Louisiana law, section 2314, Mississippi Code 1930, must be held to apply.

Argued orally by H. H. Smith, for appellant.

OPINION

Griffith, J.

This suit was brought in the chancery court of Hancock county to recover compensation under the Louisiana Workmen's Compensation Law (Act No. 20 of 1914, as amended) for the death of appellee's intestate, who was accidentally killed in the state of Louisiana while in the service, in that state, of appellant railroad and in the course of his employment in the operation of a derrick or steam shovel for the railroad company. The injury and death occurred on the 19th day of July, 1924. The deceased was a resident of this state and of Hancock county, and the administratrix here is the widow and sole heir at law and distributee of the estate of the decedent. The parties failed to reach any agreement as to the payments to be made under the compensation laws, or otherwise, and the widow was obliged to employ counsel to enforce her demands. Upon consideration of the case, her counsel were in doubt whether under the facts the courts would hold that the deceased was at the time of his injury engaged in interstate service or whether the employment was intrastate. Consequently, two suits were filed in the circuit court of Hancock county, one on July 16, 1925, seeking recovery under the Federal Employers' Liability Act (45 U.S.C. A., secs. 51-59), and two days later another suit for compensation under the Louisiana Compensation Act. The first suit, under the Federal Employers' Liability Act, was prosecuted to a conclusion and resulted adversely to the plaintiff. Thereupon prosecution of the second suit was resumed, with the result that on the 23rd day of September, 1929, the circuit court dismissed the said second suit, not on the merits, but because the court was of the opinion that the circuit court was without the necessary machinery to enforce the Louisiana Workmen's Compensation Law. Within one year thereafter, and on September 1, 1930, the opinion of this court in Floyd v. Vicksburg Cooperage Co., 156 Miss. 567, 126 So. 395, having in the meantime been published, appellee filed this new suit in chancery on the same cause of action, that is to say, under the Louisiana Workmen's Compensation Act, against which new suit appellant urged, among other defenses, that the new suit was upon a cause of action which had become extinct, because of the provisions of section 31 of the Louisiana Workmen's Compensation Act of 1914 which allowed one year only after the injury or death in which to institute suit, in the absence of agreement in respect to the payments to be made under the act. The chancellor overruled the contention and gave a decree for the amount due under the said compensation laws; and...