Manuel v. Carolina Cas. Ins. Co.

• Decision Date: 11 December 1961
• Docket Number: No. 350,350
• Citation: 136 So.2d 275
• Parties: Helen Mae MANUEL, Plaintiff and Appellant, v. CAROLINA CASUALTY INSURANCE COMPANY et al., Defendants and Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 275

136 So.2d 275

Helen Mae MANUEL, Plaintiff and Appellant, v. CAROLINA CASUALTY INSURANCE COMPANY et al., Defendants and Appellees.

No. 350.

Court of Appeal of Louisiana, Third Circuit.

Dec. 11, 1961.

Rehearing Denied Jan. 15, 1962.

Certiorari Denied March 16, 1962.

Tate & Tate, by Paul C. Tate, Mamou, for plaintiffs-appellants.

Dubuisson & Dubuisson, by W. A. Brinkhaus, Opelousas, for defendants-appellees.

Before FRUGE , CULPEPPER and HOOD, JJ.

HOOD, Judge.

This is a damage suit instituted by Helen Mae Manuel against Employers Fire Insurance Company and Carolina Casualty Insurance Company, arising out of a motor vehicle collision in which plaintiff's mother, Mrs. Mona Ardoin Manuel, was killed almost instantly. According to the allegations contained in plaintiff's petition, the accident occurred on January 27, 1960. One of the vehicles involved in the accident was an automobile owned and operated by Actuel Manuel, in which vehicle the decedent was riding as a guest passenger, and the other vehicle was a G.M.C. truck and trailer, owned by Oil Field Truck Lines, Inc. Plaintiff alleges that at the time the accident occurred, Carolina Casualty Insurance Company was the public liability insurer of the owner of the G.M.C. truck and trailer, and that Employers Fire Insurance Company was the public liability insurer of Actual Manuel, the owner and operator of the automobile.

The decedent, Mrs. Manuel, left as her sole survivors her husband, Gustave Manuel, and seven children, all of whom were of legal age of majority at the time of her death. On October 10, 1960, Gustave Manuel, the surviving husband, instituted suit entitled Manuel v. Fire Ins. Co., Employers' bearing Number 352 of our docket, 136 So.2d 282, in which suit he not only seeks to recover for his own personal injuries, but also he demands (1) damages for the wrongful death of his wife, and (2) the damages which the deceased could have recovered had she lived.

After that suit had been filed, Helen Mae Manuel, one of the major children of the decedent, then instituted the instant suit in which she also demands damages for the wrongful death of her mother and for the damages which her mother may have recovered had she lived. Two other damage suits, arising out of the same accident, also were filed, in which suits all of the other surviving children of the decedent joined as parties-plaintiff, seeking the same types of damages. These additional suits are entitled Duplechin et al. v. Carolina Casualty Insurance Company et al., Number 351, La.App., 136 So.2d 281, and Manuel et al. v. Carolina Casualty Insurance Company et al., Number 353, La.App., 136 So.2d 282.

While these suits were pending, American Employers Insurance Company, alleging that it actually was the public liability insurer of Actuel Manuel at the time of the accident instead of Employers Fire Insurance Company, voluntarily substituted itself as a party-defendant in all of the suits. This substituted defendant thereupon deposited in the Registry of the Court the sum of $10,194.44, being the maximum amount for which it could be held liable under the insurance policy issued by it, and all parties have stipulated that in view of this deposit American Employers Insurance Company and Employers Fire Insurance Company are relieved of any further liability.

Answers were filed by the defendants in the action instituted by Gustave Manuel, Number 352, but the case has never been tried and no final judgment has been rendered in that suit. In all three suits instituted by the major children of the decedent, however, exceptions of no right and no cause of action were filed by Carolina Casualty Insurance Company, one of the defendants named in each such suit. All of these cases were consolidated for the trial of the exceptions pending in the three suits last mentioned, and after such trial judgment was rendered in each of those three cases, including the instant suit, sustaining the exceptions of no cause and no right of action and dismissing the suits. Plaintiffs in each of those three suits, being all of the major children of the decedent, have appealed.

Counsel for all parties agree that Article 2315 of the Revised Civil Code, prior to its recent amendment by Act 30 of 1960, would have barred a suit by major children for the wrongful death of their mother or from maintaining a survival action, when the husband of the decedent survives. They also agree that after the amendment of that article of the Code by Act 30 of 1960, which amendment became effective January 1, 1961, the major children do have the right to recover damages for the wrongful death of their mother, and the right to maintain a survival action, even though the husband survives. At the time the accident in this case occurred, therefore, plaintiff did not have the right to maintain the type of action which has been instituted here. About eleven months after the accident and death occurred, however, Article 2315 of the LSA-Civil Code was amended to grant to the major children the right to maintain this type of suit. The real issue presented here, therefore, is whether Act 30 of 1960 may or may not be applied retroactively.

Plaintiff contends, primarily, that the act must be given retrospective effect because it makes only a Procedural, and not a Substantive, change in the law, and that procedural and remedical enactments operate retrospectively, unless a contrary intent is expressed by the Legislature.

In that connection counsel for plaintiff argues that a 'cause of action' existed at the time the accident and death occurred and that Act 30 of 1960 merely extended or broadened the 'right of action' to include as beneficiaries the major children, as well as the surviving spouse and minor children of the decedent. Since the cause of action already existed, it is argued, the extending of the right of action to include other persons merely deals with procedural and not with substantive rights.

The term 'substantive law' is defined in Black's Law Dictionary, Fourth Edition, as:

'That part of law which creates, defines, and regulates rights, as opposed to 'adjective or remedial law,' which prescribed method of enforcing the rights or obtaining redress for their invasion. Maurizi v. Western Coal & Mining Co., 321 Mo. 378, 11 S.W.2d 268, 272; Mix v. Board of Com'rs of Nez Perce County, 18 Idaho, 695, 112 P. 215, 220, 32 L.R.A.,N.S., 534.'

In Matney v. Blue Ribbon, La.App. 2 Cir., 12 So.2d 249, 253 (Affirmed by Supreme Court, 202 La. 505, 12 So.2d 253), the Second Circuit Court of Appeal said:

'Black's Law Dictionary, 3d Ed., defines 'substantive law' to be that part of the law which courts are established to administer as opposed to the rule according to which the substantive law itself is administered. It is that part of the law which creates, defines and regulates rights as opposed to adjective or remedial law which prescribes the method of enforcing rights or of obtaining redress for their invasion.'

In Bounds v. T. L. James & Company, 124 F.Supp. 563, 567, Judge Ben C. Dawkins, Jr., of the Western District of Louisiana, held that:

'The cause of action for wrongful death, created by Article 2315, is substantive, purely personal, and accrues only to the beneficiaries named, in the order of their naming.'

In Hermann v. New Orleans and C.R. Co., 11 La.Ann. 5, a widow instituted an action for herself and in behalf of her minor children, demanding damages for loss of support because of the death of the husband and father, alleged to have been caused by the negligence of defendant. The accident occurred prior to the effective date of Act 223 of 1855, which amended Civil Code Article 2294 (now 2315) by providing that the right of action granted by that article shall survive in case of death in favor of the minor children and widow of the deceased. The Supreme Court, however, held that this amendment was not applicable because the statute was passed after the accident and death occurred.

Article 2315 of the Civil Code was again amended by Act 71 of 1884 to give to certain survivors of a decedent an action for wrongful death, in addition to the survival action previously granted in 1855. In Van Amburg v. Vicksburg, S & P.R. Co., 37 La.Ann. 650, the plaintiff sued for damages for the loss of support, companionship and affection of her son, who was killed as a result of defendant's negligence, and she also demanded the damages which her deceased son could have recovered had he lived. The Supreme Court allowed the plaintiff to maintain the survival action, but it rejected her demands for damages based on the wrongful death of the decedent, because the accident occurred five days before the effective date of Act 71 of 1884. In so holding, the Court said:

'* * * The Act of 1884 applies the remedy that the public conscience has long demanded, but it has missed application to this case only by a few days. That Act was approved July 10th and took effect in Bossier on the 30th. The accident and death occurred on the 25th of that month.

'It was ingeniously argued to us that this statute merely provided a remedy for a previously-existing obligation--that in morals and conscience he who caused the death of another should make reparation to the survivors as in law he who caused damage by a fault was legally obliged to repair it--and therefore that the remedy provided by the statute could be and ought to be applied to injuries inflicted before its passage. This would open the door to a multitude of suitors and therefore courts would be cautious in making such interpretation, but in truth the argument is not sound, for it is based on the assumption that this is a remedial statute and on the principle that such statutes are construed liberally, but our late statute is not remedial in the sense of supplying a remedy. It creates an obligation by expressly declaring the existence of a liability where there was none before and opens the way to a...