Matthews v. Kansas City Southern Railway Co.

• Decision Date: 12 March 1929
• Docket Number: 3088
• Citation: 120 So. 907,10 La.App. 382
• Court: Court of Appeal of Louisiana — District of US
• Parties: MATTHEWS v. KANSAS CITY SOUTHERN RAILWAY COMPANY

120 So. 907

10 La.App. 382

MATTHEWS v. KANSAS CITY SOUTHERN RAILWAY COMPANY

No. 3088

Court of Appeals of Louisiana, Second Circuit

March 12, 1929

Appeal from the First Judicial District Court, Parish of Caddo. Hon Robert Roberts, Judge.

Action by Mrs. Mary Eva Matthews, individually and as natural tutrix, etc., against Kansas City Southern Railway Company.

There was judgment for defendant and plaintiff appealed.

Judgment affirmed.

Barksdale Bullock, Warren, Clark and Van Hook, of Shreveport, attorneys for plaintiff, appellant.

Wilkinson Lewis and Wilkinson, of Shreveport, attorneys for defendant appellee.

OPINION

STATEMENT OF THE CASE

REYNOLDS J.

Mrs. Mary Eva Matthews, as mother and natural tutrix of her minor children, Mary Louise Matthews, Alice Matthews, and Hayter Matthews, issue of her marriage with Clyde Matthews, deceased, on the 21st day of March, 1927, brought this suit against the defendant, Kansas City Southern Railway Company, to recover $ 70,000 as damages for the death of her said husband and father of said minors, which occurred on February 12, 1926, and was caused, she alleged, by the negligent operation, in the city of Shreveport, La., of a train of cars belonging to defendant by its servants.

She also alleged:

"That petitioner, Mary Eva Matthews, individually and in her capacity as mother and natural tutrix of her said minor children, filed this same suit against said defendant Kansas City Southern Railway Company, in the District Court of the United States for the Western District of Louisiana, Shreveport Division, on the 9th day of February, 1927, and that, upon exception to said suit filed by counsel for said defendant Kansas City Southern Railway Company, the said suit was dismissed by said United States District Court on the 19th day of March, 1927."

To this petition the defendant filed the following plea:

"Now comes the defendant in the above numbered and entitled cause, and, without answering the demands in the plaintiff's petition contained, shows unto the court that if plaintiff ever had any right of action herein, which is denied, that the same has been barred and preempted by the failure of the plaintiff to assert said right within the space of one year, provided by article 2315 of the Civil Code of Louisiana; that, prior to the enactment of Act 71 of 1884 no right of action existed in this state for the death of a human being, and the granting of such right under article 2315 of the Civil Code must be strictly construed, and said right must be exercised within the time limit allowed by said article. That the petition herein shows that plaintiff's husband was killed more than a year prior to the institution of this suit. Wherefore defendant pleads in bar of plaintiff's cause or right of action the provisions of article 2315 of the Civil Code restricting the right to bring suit for the death of another to a period of one year, and prays that this plea be sustained, for all orders and decrees necessary, for cost, and for full and general relief."

On trial of the plea it was sustained and plaintiff's suit dismissed, and she appealed.

OPINION

Article 2315 of the Civil Code reads as follows:

"Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it; the right of this action shall survive in case of death in favor of the children or surviving spouse of the deceased; or either of them, and in default of those in favor of the surviving father and mother or either of them, and in default of any of the above persons, then in favor of the surviving brothers and sisters or either of them, for the space of one year from the death; provided that should the deceased leave a surviving spouse together with minor children the right of action shall accrue to both the surviving spouse and minor children; provided further, that the right of action shall accrue to the major children only in those cases where there is no surviving spouse or minor child r children.

"The survivors above mentioned may also recover the damages sustained by them by the death of the parent or child or husband or wife, or brothers or sisters as the case may be."

Defendant, in brief, says:

"The authorities which we shall cite are all in accord to the effect that in this state no right of action existed for the death of a human being prior to the year 1884, and the statute passed in that year with amendments that have subsequently been made to the act should be strictly construed. These authorities furthermore hold that where any right or cause of action is granted by any statute and a time limit prescribed within which such right or cause of action might be exercised, time limit is considered as a period of preemption as contradistinguished from a period of prescription. If the period prescribed for the bringing of the action or the exercise of the right is a period of preemption, then no suit can be brought, nor can the right be exercised at any time following the expiration of the period, even though a suit may have been commenced within the period. In other words, the provisions of law relative to the interruption of prescription do not apply to statutes of preemption." (Boldface type ours.) And cites many causes in support of its contention, including the following: Van Amburg vs. V. S. & P. Ry. Co., 37 La.Ann. 650, 55 Am. Rep. 517; Kerner vs. Trans-Mississippi, etc. Co., 158 La. 853, 104 So. 740. Ashbey vs. Ashbey, 41 La.Ann. 102, 5 So. 539; Guillory vs. Avoyelles Ry. Co., 104 La. 11, 28 So. 899; Partee vs. St. Louis & San F. Ry. Co. (C. C. A.), 204 F. 970, 51 L. R. A. (N. S.) 721; Western Coal & Mining Co. vs. Hise (C. C. A. 216 F. 338; Rodman vs. Missouri Pacific R. Co., 65 Kan. 645, 70 P. 642, 59 L. R. A. 104; Boston & Maine R. R. vs. Hurd (C. C. A.) 108 F. 116, 56 L. R. A. 193; McCan vs. Conery (C. C. A.), 12 F. 315; Theroux v. Northern Pac. Ry. Co. (C. C. A.), 64 F. 84; Harrisburg vs. Rickards, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358; and also the following authorities: Partee vs. St. Louis & S. F. R. Co. (C.C.A.), 204 F. 970, 51 L.R.A. (N.S.) 721; 37 C. J. 686.

Answering this argument plaintiff, in brief, says:

"Counsel for defendant cited ample authority for the proposition that where a cause of action is created and in the same statute a term designated within which the cause of action must be asserted, such term is to be construed as a preemption rather than prescription, and that the filing of a suit does not interrupt the preemption.

"We have no argument as to this rule of construction or these authorities. Our contention is that they are not applicable to this case. The argument and authorities cited by counsel would be applicable if this were a suit of the widow and children as survivors and successors to the right of action which the deceased had for his injuries at the time of his death; if the right of action asserted was the right of action which survives in case of death in favor of the children and surviving spouse of the deceased.

"As to the cause of action which the deceased had and which survived in favor of designated beneficiaries, it might properly be argued that the time within which the cause of action may be asserted is embodied in the act granting the cause of action; that the cause of action itself ceases at the termination of the period of prescription; or, in other words, that the cause of action which the deceased had, as stated in the Article, 'shall survive in case of death * * * for the space of one year from the death'; that it survives for the space of one year and no longer and, therefore, at the end of the year from the death the cause of action is forfeited, prescribed and preempted.

"As above stated, however, this suit is on behalf of the widow and minor children under the second paragraph of article 2315, which provides 'the survivors above mentioned may also recover the damages sustained by them by the death of the parent or child,' etc. This is a suit directly against the defendant for damages directly resulting to the plaintiffs by being deprived of the support, sustenance, love, affection, etc., of the deceased. There is nothing in the paragraph granting this cause of action, or within the period bounding the same, indicating to the slightest extent within what period of time this particular cause of action shall be asserted. There is nothing in article 2315 as amended indicating that his cause of action must be exercised within one year or within any other period of time. The suit is based on 'Quasi Offense' as designated in the Civil Code. The article of the Code giving the cause of action is under the head of 'Offenses and Quasi Offenses.'

"Under the head of 'prescription' article 3536 provides: 'The following actions are also prescribed by one year: That for injurious words, whether verbal or written, and that for damages caused by animals, or resulting from offenses or quasi offenses.'

"As to the cause of action asserted in this petition: Quasi offense, pure and simple is alleged. No term is designated in the article granting the cause of action as to how long the cause of action may subsist; and the only prescription applicable is the prescription of one year from the date of the death applicable to all offenses and quasi offenses. There is no occasion to invoke the distinction between prescription and preemption or forfeiture. There is no distinction or point of differentiation indicated in the article as between a direct cause of action resulting from death and a cause of action resulting from any other 'act whatever of man that causes damage to another.'"

And she cites articles 3518 and 3551 of the Civil Code and Teutonia Loan & Building Co. vs. Connolly, 133 La. 401, 63...