Maher v. Schlosser

• Decision Date: 07 May 1962
• Docket Number: No. 21649,21649
• Citation: 144 So.2d 706
• Parties: Aldea MAHER v. Dr. Joseph V. SCHLOSSER and New Amsterdam Casualty Company.
• Court: Court of Appeal of Louisiana — District of US

Page 706

144 So.2d 706

Aldea MAHER v. Dr. Joseph V. SCHLOSSER and New Amsterdam Casualty Company.

No. 21649.

Court of Appeal of Louisiana, Fourth Circuit.

May 7, 1962.

Rehearing Denied Oct. 4, 1962.

Certiorari Denied Nov. 13, 1962.

S. Sanford Levy, New Orleans, for appellants.

Lemle & Kelleher, Carl J. Schumacher, Jr., and Albert H. Hanemann, Jr., New Orleans, for appellees.

Before McBRIDE, REGAN and YARRUT, JJ.

McBRIDE, Judge.

This is an action which was brought by Aldea Maher for damages for personal injuries allegedly suffered by said plaintiff as a result of the negligence and want of care, skill, and diligence on the part of defendant, Dr. Joseph V. Schlosser, in administering X-ray treatments to plaintiff. The other defendant, New Amsterdam Casualty Company, is the liability insurer responsible for any malpractice, errors, or mistakes in the performance by Dr. Schlosser of his professional duties.

Aldea Maher died November 20, 1959, before issue was joined, her death taking place the day after this suit was filed. Subsequently defendants answered the suit.

Later, the four heirs and legatees of the deceased plaintiff (her nephews and a niece) filed a petition seeking to be substituted as parties plaintiff and praying for a judgment in their favor against the defendants in accordance with the prayer of the deceased plaintiff. They allege that Aldea Maher had never been married, had no children, adopted no one, and was not survived by her father or mother or any brothers or sisters. The court below permitted their substitution as parties-plaintiff, whereupon defendants filed exceptions of no cause or right of action which were sustained; the substituted plaintiffs have appealed.

Code of Practice art. 21, as amended by Acts 1954, No. 57, reads:

'An action does not abate on death of one of the parties after suit has been filed, and the heirs, legatees, administrator, or executor of the deceased party may be substituted as parties in any case wherein they succeed, by operation of law, to the rights of the deceased party.'

LSA-R.S. 13:3349, as amended by Acts 1954, No. 59, provides:

'There are no exceptions to the rule that an action does not abate by the death of one of the parties thereto after suit has been filed. This section shall apply to all actions now pending as well as those which may be hereafter instituted. No act of the legislature heretofore passed, nor any acts hereafter passed shall be construed as making an exception to this rule, unless such act specifically and specially makes an exception thereto.'

Appellants take the position that the action commenced by Aldea Maher, in view of the above statutory provisions, could not have abated upon her death and that they, as substituted plaintiffs, are asserting and are legally entitled to assert their right as her legal heirs by continuing the action under the provisions of LSA-C.C. arts. 944 and 945, which in effect provide that the heir is considered as having succeeded to the deceased from the instant of his death, and that the second effect of this right is that the heir is authorized to institute all the actions, even possessory ones, which the deceased had a right to institute, and to prosecute those already commenced.

The defendants have not contended that the action was abated by the death of plaintiff. All that they say is that the death of the original plaintiff, which occurred before she had obtained a judgment, did not convert the action, which was purely personal, into one which was heritable and that the substituted plaintiffs, as heirs of the deceased plaintiff, have not the right to prosecute the action. Defendants maintain that upon the death of Aldea Maher, under LSA-C.C. art. 2315 (as amended by Acts 1948, No. 333), the right of action survived in favor of the certain designated persons in the order of succession as specified in said article, and there is no provision that a right of action survived in favor on nieces and nephews.

Counsel for appellants says that this action was not brought under LSA-C.C. art. 2315 but that it arose under LSA-C.C. art. 2316, which states that 'every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.' It makes no difference under which one of the two said articles the suit was brought as they both provide for redress for wrongful injury and must be read together, LSA-C.C. art. 2316 merely enlarging the right given to the injured person by LSA-C.C. art. 2315. Bourgeois v. Indemnity Ins. Co. of North America, La.App., 60 So.2d 718, and Young v. McCullium, La.App., 74 So.2d 339.

The appellate courts of this state, including the Supreme Court, have had concern with the proposition raised by appellants, i.e., whether a right of action under LSA-C.C. art. 2315 is property and as such is heritable and descends to the heirs of the injured person or whether the action survives only in favor of those persons enumerated in said article.

Since Aldea Maher had obtained no judgment in her suit, no property right is involved in the case. Castelluccio v. Cloverland Dairy Products Co., Inc., 165 La. 606, 115 So. 796; Gabriel v. United Theatres, Inc., 221 La. 219, 59 So.2d 127; Covey v. Marquette Casualty Company, La.App. (on rehearing), 84 So.2d 217.

From the many cases which involve the question whether an action for personal injuries is transmitted upon his death to the plaintiff's heirs or whether the action survives in favor of those persons enumerated in LSA-C.C. art. 2315, the following legal principles have become well established: (1) A right of action for damages for personal injuries is not heritable under the common law and was not under the civil law, and unless a statute declares that such right of action shall survive in case of the death of the person injured, it is abated as his death whether he dies as a result of the injury or from some other cause and whether he has or has not instituted a suit to recover the damages suffered. (2) That despite the provisions of C.P. art. 21, LSA-R.S. 13:3349 (both before and after the 1954 amendments thereto), and LSA-C.C. arts. 944 and 945, a personal, nonheritable right of action or an action already commenced for damages in tort does abate with the death of the party who instituted it which constitutes an exception to the nonabatement statutes which has existed for many years. (3) Upon the death of the injured party a new right arises in favor of the survivors mentioned in LSA-C.C. art. 2315, and they alone and not the heirs of the decedent possess the right to continue with the prosecution of the action. McConnell v. Webb, 226 La. 385, 76 So.2d 405; Gabriel v. United Theatres, Inc., supra; Kerner v. Trans-Mississippi Terminal R. Co., 158 La. 853, 104 So. 740; Huberwald v. Orleans R. Co.,50 La.Ann. 477, 23 So. 474; Chivers v. Roger, 50 La.Ann. 57, 23 So. 100; Walton v. Booth, 34 La.Ann. 913; Hubgh v. New Orleans & Carrollton Railroad Company, 6 La.Ann. 495, 54 Am.Dec. 565; Lally v. Taylor, La.App., 117 So.2d 602; Mahfouz v. United Brotherhood of Carpenters & Joiners of America-Local Union Number 403, La.App., 117 So.2d 295; Ramsey v. McDaniel, La.App., 84 So.2d 276; Covey v. Marquette Casualty Company (on rehearing, supra); Young v. McCullium, supra.

We can find no case decided by an appellate court in which LSA-R.S. 13:3349, C.P. art. 21, LSA-C.C. 944 or 945 was applied with reference to an action for personal injuries. In the face of the well-established jurisprudence mentioned above, we cannot but follow it, and our holding must be that where the claim...