National Sur. Corp. v. Standard Acc. Ins. Co.

• Decision Date: 03 May 1965
• Docket Number: No. 47572,47572
• Citation: 247 La. 905,175 So.2d 263
• Parties: NATIONAL SURETY CORPORATION v. STANDARD ACCIDENT INSURANCE COMPANY et al., Lemmie Tyson, Intervenor-Relator.
• Court: Louisiana Supreme Court

Page 263

175 So.2d 263

247 La. 905

NATIONAL SURETY CORPORATION v. STANDARD ACCIDENT INSURANCE COMPANY et al., Lemmie Tyson Intervenor-Relator.

No. 47572.

Supreme Court of Louisiana.

May 3, 1965.

Rehearing Denied June 7, 1965.

John P. Godfrey, Many, for relator.

Cook, Clark, Egan, Yancey & King, Sidney B. Galloway, Shreveport, for respondents.

HAMLIN, Justice.

Certiorari was granted herein (Art. VII, Sec. 11, La.Const. of 1921, LSA) in order that we might review a judgment of the Court of Appeal, Second Circuit, which affirmed a judgment of the trial court sustaining a plea of prescription of one year, as provided by Article 3536 of the LSA-Civil Code, filed by defendants to the petition of intervention of Lemmie Tyson, La.App., 168 So.2d 858; 247 La. 259, 170 So.2d 512.

On December 10, 1963, National Surety Corporation, the workmen's compensation insurer of T. L. James & Company, Inc. (hereinafter referred to as T. L. James), filed suit against (1) Gifford-Hill & Company Inc. (hereinafter referred to as Gifford-Hill), owner of the Mack tandem truck herein involved and employer of Brown Ferguson, the truck operator, (2) Standard Accident Insurance Company, the insurer of Gifford-Hill, and (3) Brown Ferguson. It alleged that while in the course and scope of his employment with T. L. James on December 13, 1962, Lemmie Tyson suffered disabling injuries resulting from the negligence of Brown Ferguson, who was assisted at the time of the accident by Lemmie Tyson in the pouring of concrete for Interstate Highway No. 20 being constructed by T. L. James.¹ Plaintiff prayed for workmen's compensation and medical expenses previously paid ($5,153.10), plus interest and costs, and for future workmen's compensation and medical expenses it might have to pay.²

In addition to praying for service and citation on the three named defendants, plaintiff prayed for service and citation on Lemmie Tyson, alleging that he was an interested party in the proceedings.

On December 31, 1963, Lemmie Tyson filed a petition of intervention; he reiterated and adopted the pertinent allegations of plaintiff's petition and prayed for an in solido judgment against the three defendants in the sum of $141,368.10, together with interest and costs.

Among other pleadings, the defendants filed a peremptory exception of prescription to Tyson's intervention, averring that the accident occurred on December 13, 962; that the petition of National Surety Corporation was filed on December 10, 1963 and made demand for nothing more than reimbursement for compensation and medical expenses paid to or on behalf of Lemmie Tyson, or to be paid in the future; that the petition of intervention was not filed until December 31, 1963, more than one year from the date of the accident and injury complained of by Lemmie Tyson; and, that they expressly pleaded a prescription of one year, as provided by Article 3536 of the LSA-Civil Code, as a bar to the petition of intervention filed by Lemmie Tyson. They prayed that Tyson's intervention be dismissed with prejudice and at his costs. As stated supra, this exception was maintained by the trial court whose judgment was affirmed by the Court of Appeal.

In this Court, intervenor-relator Lemmie Tyson sets forth the following specification of error:

'The Court of Appeal erred, with one of its three Judges dissenting, in holding that the filing of suit against a Tort feasor by the compensation insurer of an employer for damages sustained by it as a result of having paid compensation and medical expenses to the employee injured by said Tort feasor did not interrupt prescription with respect to an intervention filed in said suit by such injured employee.'

The question presented for our determination is whether the action filed by plaintiff served to interrupt prescription and thereby permit Lemmie Tyson to assert the rights or remedy he seeks to enforce later than one year after the accident.

In answering this question negatively, the Court of Appeal stated:

'We have found no authority in our jurisprudence which applies exactly to the issue presented in the instant case, and, therefore, our reasoning has, perforce, been based upon analogy. It is true that our courts have held that an employer or his insurer may intervene in a suit already instituted by an employee, even though more than one year has elapsed since the occurrence of the accident and resulting injury. But, as we have attempted to point out, we think this principle has been adopted because such claims have been Included in the plaintiff's demand. We find no indication in the authorities examined that would establish the converse of this proposition, namely, that an employee may intervene in an action by an employer or his insurer, even though such intervention is filed after the running of the prescriptive period.

'It seems to us that one of the essential requirements for the application of prescriptive provisions, as established in our jurisprudence, is the notification to a defendant not only of the cause of the action but the Nature and extent of the demand. It, therefore, appears proper to conclude that a claim which either changes the nature or enlarges the extent of the demand is not protected against the limitation of a prescriptive period.'

In the instant case, defendants argue in brief that the injury of relator gave rise to one cause of action. They urge that the law gave at least two persons, the plaintiff and the relator, a right of action or remedy. The assertion of a right or remedy by one creditor which interrupts prescription as to him does not necessarily interrupt prescription as to the other, even though their rights may arise out of the same cause of action.

Tyson's intervention was filed under LSA-R.S. 23:1102, which provides that, 'If either the employee or his dependent, or the employer, brings suit against a chird person as provided in R.S. 23:1101,³ he shall forthwith notify the other in writing of such fact and of the name of the court in which the suit is filed, and such other may intervene as party plaintiff in the suit.'

No mention is made in the above statute or in LSA-R.S. 23:1101 as to when an employer or an injured employee must file suit or intervene. Article 2315 of the LSA-Civil Code assesses liability for acts causing damage to another, and Article 3536 of the Code provides that an action resulting from offenses or quasi offenses prescribes by one year. We find no mention in either the statutes or the Code as to what effect the timely filing of a suit by one party has on the filing of an intervention by the other party more than one year after the occurrence of the alleged tortious act. However, Act 31 of [247 La. 913] 1960, LSA-R.S. 9:5801, 'Interruption of prescription by filing of suit, service of process', recites:

'All prescriptions affecting the cause of action therein sued upon are interrupted as to all defendants, including minors or interdicts, by the commencement of a civil action in a court of competent jurisdiction and in the proper venue. When the pleading presenting the judicial demand is filed in an incompetent court, or in an improper venue, prescription is interrupted as to the defendant served by the service of process.'⁴

In Hope v. Madison, 192 La. 593, 188 So. 711, this Court stated:

'A cause of action is an act on the part of a defendant which gives rise to a plaintiff's cause of complaint; 'the existence of those facts which give a party a right to judicial interference in his behalf'; 'the situation or state of facts which entitles a party to sustain an action'.

"When used with reference to the pleadings by which the cause of action is alleged, the phrase signifies the facts upon which the plaintiff's right to sue is based, and upon which the defendants duty has arisen, coupled with the facts which constitute the latter's wrong.' Quotations from 2 Words & Phrases, First Series, Cause of Action, p. 1017.'

In Dupre v. Consolidated Underwriters, 99 So.2d 522, the Court of Appeal pertinently stated that, 'It should be noted, first, that the 'demand' of the suit is not synonymous with the 'cause of action(s)' therein, cf., Quarles v. Lewis, 226 La. 76, 75 So.2d 14. The demand is the object of the suit, see Article 137, C.P.; De Lee v. Price, La.App. 1 Cir., 94 So.2d 79,--in this case the demand for a monied judgment of one thousand dollars. A cause of action is 'the situation or state of facts which entitles a party to sustain an action', i.e., which gives him 'a right to judicial interference in his behalf,' Hope v. Madison, 192 La. 593, 188 So. 711, 715 * * *' Cf. Richard v. National Surety Corporation, La.App., 99 So.2d 831, 833, for a discussion of the distinction between the exception of no right of action and the exception of no cause of action.

Article 1031 of the LSA-Code of Civil Procedure provides that 'Intervention' is an incidental demand to the principal demand and may be instituted against an adverse party or against a third person.⁵ Article 1033 further provides that an incidental demand may be filed without leave of court at any time up to and including the time the answer to the principal demand is filed. The incidental demand may be filed thereafter, with leave of court, if it will not retard the progress of the principal action.

In Marquette Casualty Company v. Brown, 235 La. 245, 103 So.2d 269, this Court held:

'Considering the provisions of R.S. 23:1101, 1102 and 1103 together, it seems plain that there is but one cause of action recognized for the recovery of damages resulting from a single tort. However, the right of redress against the tortfeasor has been extended by the provisions to the injured workman's employer, who is accorded a preferential right to recover, out of the judgment for damages which may be assessed against the tortfeasor, the amount of compensation he has paid or become obligated to pay to the injured employee.⁶ This right is, or course,...