Succession of Roux v. Guidry

• Decision Date: 10 January 1966
• Docket Number: No. 2022,2022
• Citation: 182 So.2d 109
• Parties: SUCCESSION OF Mrs. Laura Marie LOPEZ, Widow of Albert J. ROUX, Sr. v. Dr. Edwin R. GUIDRY.
• Court: Court of Appeal of Louisiana — District of US

Page 109

182 So.2d 109

SUCCESSION OF Mrs. Laura Marie LOPEZ, Widow of Albert J. ROUX, Sr. v. Dr. Edwin R. GUIDRY.

No. 2022.

Court of Appeal of Louisiana, Fourth Circuit.

Jan. 10, 1966.

Rehearing Denied Feb. 7, 1966.

Writ Denied March 30, 1966.

Anthony C. D'Antonio, Salvador Anzelmo, New Orleans, for plaintiffs-appellants.

Deutsch, Kerrigan & Stiles, Ralph L. Kaskell, Jr., John F. Tooley, J., New Orleans, for defendant-appellee.

Bernard J. Capella, New Orleans, for defendant-appellee, Mrs. Agnes Roux Bush.

Before YARRUT, SAMUEL and CHASEZ, JJ.

CHASEZ, Judge.

Plaintiffs, Albert J. Roux, Jr., Gladys Roux Baas, George J. Roux, Shirley Roux Canale, and Francis L. Roux, appeal from a judgment maintaining defendant's peremptory exceptions of prescription and peremption dismissing their suit. An additional plaintiff, the Succession of Mrs. Laura Marie Lopez, widow of Albert J. Roux, Sr., represented herein by its duly appointed and qualified administrator, Albert J. Roux, Jr., did not appeal from the judgment maintaining defendant's exceptions of no cause and no right of action against it.

The petition alleges the wrongful death of Mrs. Laura Marie Lopez, widow of Albert J. Roux, Sr., and mother of plaintiffs, allegedly brought about by inadequate and incompetent medical treatment administered by the defendant, Dr. Edwin C. Guidry.

The death occurred on January 2, 1963.

The original suit was filed on December 30, 1963 (within one year of the death) by Albert J. Roux, Jr., in his capacity as 'the duly appointed and qualified administrator' of the succession of Mrs. Laura Marie Lopez, widow of Albert J. Roux, Sr., for damages suffered by the heirs of decedent because of the alleged wrongful death and prayed for judgment in favor of the succession.

Exceptions were filed as to the procedural capacity of the succession representative to bring the suit, and as to the nonjoinder of necessary parties plaintiff. These exceptions were never passed on due to the filing of a supplemental and amended petition on May 14, 1964 (more than one year after the death), by which five of the deceased's children in their individual capacities joined the succession representative as plaintiffs, and three other children of the deceased were joined as defendants under the procedure provided by LSA-C.C.P. art. 644 by which unwilling necessary and indispensable parties may be required to assert their rights or be precluded thereafter from so doing.

At this point the exceptions now before the Court were filed and maintained.

Plaintiffs contend that the filing of the original petition by the administrator of the succession interrupted prescription and peremption in favor of all the heirs, that their supplemental and amended petition simply cured Technical defects in the original petition, and dates back to the filing of the original petition.

Defendant contends that by the terms of LSA-C.C. art. 2315, the proper beneficiaries must file suit for wrongful death within one year from the death; that neither the succession nor the succession representative is a proper beneficiary; that the proper beneficiaries did not assert their claim until the filing of the supplemental and amended petition on May 14, 1964, more than one year after the death, and thus their claim has perempted.

The controlling question in this case is whether the one year time limitation prescribed in LSA-C.C. art. 2315 is one of peremption or prescription. We are firmly of the opinion that it is one of peremption. As stated by the First Circuit Court of Appeal in Miller v. American Mut. Liability Ins. Co., 42 So.2d 328:

'Although the attorneys for the litigants and the trial judge treat the plea as one of the prescription, it is our view that the limitation of one year fixed by the quoted Article is one of peremption rather than one of prescription. The difference between the nature and effect of these two pleas are succinctly stated in the footnote, 13 Tulane Law Review, page 39 as follows: 'A period of peremption admits of no interruption or suspensions. The performance of the required act must be accomplished within the specified time at the peril of the party whose duty it is to perform such act. A period of prescription differs in that it may be suspended or interrupted for various reasons. The institution of suit interrupts prescription. La. Act No. 39 of 1932, McCoy v. Arkansas Natural Gas Co., 1936, 184 La. 101, 165 So. 632. But it does not affect peremption. McElrath v. Dupuy, 1847, 2 La.Ann. 520; Hyde v. Bennett, 1847, 2 La.Ann. 799; Murff v. Ratcliff, 19 La.App. 109, 138 So. 908 supra note, 93.'

'Again, in the case of Guillory et al. v. Avoyelles Ry. Co. et al., 104 La. 11, at page 15, 28 So. 899, at page 901, the Supreme Court of this State, stated: 'When a statute creates a right of action, and stipulates the delay within which that right is to be executed, the delay thus fixed is not, properly speaking, one of prescription, but is one of peremption. Statutes of prescription simply bar the remedy. Statutes of peremption destroy the cause of action itself. That is to...