Payne v. Georgetown Lumber Co., Ltd.

• Citation: 42 So. 475,117 La. 983
• Decision Date: 10 December 1906
• Docket Number: 16,025
• Court: Supreme Court of Louisiana
• Parties: PAYNE v. GEORGETOWN LUMBER CO., Limited

42 So. 475

117 La. 983

PAYNE v. GEORGETOWN LUMBER CO., Limited

No. 16,025

Supreme Court of Louisiana

December 10, 1906

Appeal from Thirteenth Judicial District Court, Parish of Grant Wilbur Fisk Blackman, Judge.

Action by Bennie E. Payne against the Georgetown Lumber Company Limited Plaintiff died, and his mother and brothers and sisters were made parties plaintiff. Judgment for defendant and plaintiffs appeal. Reversed, and judgment rendered for the mother.

W. C. &amp J. B. Roberts, for appellants.

Hudson, Potts & Bernstein, for appellee.

OPINION

LAND, J.

Plaintiff on June 14, 1904, while in the employ of the defendant company, met with an accident, suffering thereby the loss of his left leg, and other injuries. He filed this suit on September 24, 1904, for $ 15,000 damages, on the ground that said injuries were occasioned by the negligence of the defendant company. On August 21, 1905, the plaintiff died, before trial of the suit, from some other cause than the injuries sustained. After his death his mother and brothers and sisters were made parties plaintiff on their own petition. The mother averred that she inherited the whole right of action under article 2315 of the Civil Code, as amended by Act 71, p. 94, of 1884, and, in the alternative, that she inherited one-fourth if the brothers and sisters were held to have inherited three-fourths. The brothers and sisters averred that they were entitled to three-fourths of whatever damages might be recovered.

Defendant excepted to the petition of the mother and brothers and sisters on the ground that the action had abated by the death of the original plaintiff. This exception was overruled.

Before stating the case further, we will proceed to consider and pass upon the merits of this exception. Article 2315 of the Civil Code, as amended, reads as follows:

"Every act whatever of man that causes damages 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 minor children or widow of the deceased or either of them, and in default of these, in favor of the surviving father or mother or either of them for the space of one year from the death.

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

It is too plain for argument that brothers and sisters and other collaterals are not included among the beneficiaries named in said article. As actions for damages for personal injuries are strictly personal and nonheritable under the general law, such relatives can take nothing as the legal heirs of the deceased. The circumstance that the action was pending does not change the situation. Chivers v. Rogers, 50 La.Ann. 57, 23 So. 100. Had a judgment been rendered in favor of the original plaintiff, the consequences might have been different. Vincent v. Sharp, 9 La.Ann. 463.

Defendant's counsel also contest the right of the mother to prosecute this suit, on the ground that the plaintiff died, not from the personal injuries sustained, but from other causes, after exercising his own right of personal action.

Article 2315 originally read as follows:

"Every act whatever of man which causes damage to another obliges him by whose fault it happened to repair it."

In 1855 the article was amended by adding:

"The right of this action shall survive in case of death in favor of the minor children and widow of the deceased or either of them, and in default of these in favor of the surviving father and mother or either of them for the space of one year from the death."

In McCubbin, Tutor, v. Hastings, 27 La.Ann. 716, the court said:

"The action, in so far as the minor is concerned, is the right of action which his mother has against the defendant for the suffering which was caused her by the defendant's employe and which he inherited. He has no claim against him for his mother's death."

In Vredenberg v. Behan, 33 La.Ann. 643, the court said:

"The act of 1855, amending article 2315, Civ. Code, expressly limits such right in favor of the widows and minor heirs to the right of action which the deceased would have had, had he survived the injury, and it cannot be extended beyond this."

In Walton v. Booth. 34 La.Ann. 914, the court, through Bermudez, C.J., said:

"The right of action which plaintiff's daughter would have been entitled to exercise, if she had not died, did not survive in favor of the husband, but in favor of her father and mother."

In that case the point was made that the daughter did not die from the effects of the negligently administered sulphate of zinc, but of erysipelas; and the court said:

"But it is no less true that, by reason of the taking of the dose of sulphate of zinc, she endured lasting and great pain and suffering, belching, and vomiting, for which she would have been entitled to damages had she recovered."

In Van Amburg v. Railroad Co., 37 La.Ann. 650, 55 Am. Rep. 517, the mother recovered damages for the sufferings of her son who was killed in a railroad accident, but damages occasioned by his death were denied.

The above authorities show that under the amendment of 1855 the beneficiaries named therein inherit all the rights of action of the party injured, and are not vested with an independent right of action. The article as amended embraces in its terms all cases of actionable injury, and cannot be restricted to mortal injuries without doing violence to the text. If a person is injured by the fault of another, a right of action arises at once in his favor, and, in case of his death, survives in favor of the particular beneficiaries named in the first paragraph of the article. In other words, all rights of action arising from torts are made heritable quoad the minor children or widow or father and mother of the deceased. The intention of the lawmaker was to make some provision for the beneficiaries enumerated in case of the death of the husband, father, or son, and to accomplish that purpose made causes or rights of action for torts heritable in their favor. Whether the de cujus died from the particular injuries or from other causes, the consequence is the same as far as the statutory beneficiaries are concerned. It is unreasonable, as well as illogical, to suppose that the lawmaker intended that a claim for damages should pass or not pass to the widow or minor children according to the particular cause of death of the husband or father. In Walton v. Booth, supra, the court found no difficulty in concluding that the father and mother could recover, although the daughter had not died from her injuries, but from other causes. In Chivers v. Rogers, 50 La.Ann. 65, 23 So. 100, the court held that under article 2315 of the Civil Code the right of action of the father expired on his death, but said that this doctrine "does not extend to a case in which a person has sustained personal injuries and subsequently dies from some other cause."

The argument that the right of action abated because the decedent brought suit to enforce it in his lifetime is without merit. An action cannot expire or abate when the law declares that it shall survive in favor of certain persons. The amendment of 1855 was supplemented in 1884 by another amendment giving the same relations of the deceased an independent right of action to recover the damages sustained by his death.

Our conclusion is that the exception should have been overruled as to the mother and sustained as to the brothers and sisters.

On the Merits.

On June 14, 1904, Benjamin E. Payne was employed at defendant's mill. His chief duty was setting blocks on the carriage, and he also assisted in changing the saws. He worked under the direction of the sawyer. He was engaged in the work of assisting to change the saws on the evening of June 14, 1904, when he was seriously injured by being struck by the carriage and jammed against the bumpers at the end of the track. The carriage was released in consequence of the latch which controls the lever being knocked loose by the impact of a scoop shovel thrown by W. W. Ward, a night watchman, who was at the time engaged in cleaning the floor of the mill of the sawdust and trash accumulated during the day's work.

Plaintiff in his original petition charged that the defendant was guilty of negligence in the following respects:

(1) That the wooden latch used to hold the lever of the carriage in place was insufficient and unsafe for that purpose to the knowledge of defendant company, and that plaintiff, a minor at the time, was not warned or informed of the insufficiency and danger of such a fastening.

(2) In not turning off the...