Trahan v. Maryland Casualty Company

• Decision Date: 02 January 1963
• Docket Number: Civ. A. No. 9263.
• Citation: 212 F. Supp. 190
• Parties: Mrs. Rose Pace TRAHAN, Wife of Henry Trahan, Jr. v. MARYLAND CASUALTY COMPANY.
• Court: U.S. District Court — Eastern District of Louisiana

212 F. Supp. 190

Mrs. Rose Pace TRAHAN, Wife of Henry Trahan, Jr. v. MARYLAND CASUALTY COMPANY.

Civ. A. No. 9263.

United States District Court E. D. Louisiana, New Orleans Division.

January 2, 1963.

John T. Cooper, Adams & Reese, New Orleans, La., for complainant.

Ralph L. Kaskell, Jr., Deutsch, Kerrigan & Stiles, New Orleans, La., for defendant.

Civ. A. No. 9263, Division C.

WEST, District Judge.

This suit was initially instituted pursuant to Louisiana's Direct Action Statute by Mrs. Rose Pace Trahan, wife of Henry Trahan, Jr., against Maryland Casualty Company, the public liability insurer of R. L. Shannon and Arnold R. Wolfe, seeking damages for personal injuries sustained by her in an automobile accident which occurred on September 21, 1958. On August 24, 1960, subsequent to the filing of this suit, and after issue joined, the complainant, Mrs. Rose Pace Trahan, died, being survived by Mrs. Antoinette Pace Puglia, Joseph Pace, Paul M. Pace, and Salvadore Pace, all major children of the deceased, Rose Pace Trahan, by a former marriage. On November 1, 1960, counsel for plaintiff filed a motion to substitute the above named heirs of Mrs. Trahan as parties plaintiff. This motion was opposed by respondent on the ground that under the provisions of Article 2315 of the LSA-Revised Civil Code, as it stood on the date of Mrs. Trahan's death, these major children had no right of action because the deceased Mrs. Trahan was also survived by her husband, Henry Trahan, Jr., in whose favor her right of action survived, to the exclusion of major children. Complainants then voluntarily withdrew the motion to substitute the major children of Mrs. Trahan as parties plaintiff, and upon proper motion having been made, Mr. Henry Trahan, Jr., the surviving spouse of the deceased Mrs. Trahan, was, by order of Court, substituted as party plaintiff on July 12, 1961. On January 28, 1962, Henry Trahan, Jr. died, leaving as his sole heirs the present complainants, Ronald Francis Trahan and Joseph Frank Trahan, both major children of the deceased Henry Trahan, Jr. These heirs now seek to be substituted as parties plaintiff in this action in the place and stead of Henry Trahan, Jr., deceased. This motion is opposed by respondent on the grounds that even though Article 2315 of the LSA-Revised Civil Code, as amended by Act 30 of the Louisiana Legislature of 1960, which said amendment, by its terms, became effective on January 1, 1961, would, under different circumstances, permit this substitution, the amendment to Article 2315 cannot be retroactive. Respondent contends that Article 2315 must be applied as it stood on the date of the accident sued upon, rather than as it stood on the date of the death of Henry Trahan, Jr. There can be no doubt that if Article 2315 is applied as it stood on September 21, 1958, the date of the accident sued on, this action abated with the death of Henry Trahan, Jr. There can also be no doubt that if Article 2315 is applied as it stood on and after January 1, 1961, the right of action which Henry Trahan, Jr. had at the time of his death on January 28, 1962, did not abate at his death but was inherited by his major children, the complainants herein.

Prior to January 1, 1961, and on the date of the accident herein sued upon, as well as on the date of the death of the original plaintiff in this suit, Rose Pace Trahan, Article 2315 of the LSA-Revised Civil Code read 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, including adopted children and children given in adoption, or spouse of the deceased, or either of them, and in default of these 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 blood brothers and sisters, or either of them, for the space of one year from the death. However, should the deceased leave a surviving spouse, together with minor children, the right of action shall accrue to both the surviving spouse and the minor children. The right of action shall accrue to the major children only in those cases where there is no surviving spouse or minor child or children.

"If the above right of action exists in favor of an adopted person, it shall survive in case of death in favor of the children or spouse of the deceased, or either of them, and in default of these in favor of the surviving adoptive parents, or either of them, for the space of one year from the death. However, this right of action shall survive in favor of the blood parent or parents to the exclusion of the adoptive parent or parents when at the time of the adoption the adopted was a major, or emancipated minor whose adoption was effected without the consent of the blood parent or parents evidenced in the act of adoption. In default of these, it shall survive in favor of the surviving blood brothers and sisters of the adopted person, 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 or brothers or sisters or adoptive parent, or parents, or adopted person, as the case may be."

On and after January 1, 1961, and at the time of the death of Henry Trahan, Jr. on January 28, 1962, Article 2315, as amended, read as follows:

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

"The right to recover damages to property caused by an offense or quasi offense is a property right which, on the death of the obligee, is inherited by his legal, instituted, or irregular heirs, subject to the community rights of the surviving spouse.

"The right to recover all other damages caused by an offense or quasi offense, if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of: (1) the surviving spouse and child or children of the deceased, or either such spouse or such child or children; (2) the surviving father and mother of the deceased, or either of them, if he left no spouse or child surviving; and (3) the surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving. The survivors in whose favor this right of action survives may also recover the damages which they sustained through the wrongful

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