Wright v. Lumbermen's Mutual Casualty Company
| Decision Date | 12 April 1957 |
| Docket Number | No. 16066.,16066. |
| Citation | 242 F.2d 1 |
| Parties | Rayford J. WRIGHT and National Surety Corporation, Intervenor, Appellants, v. LUMBERMEN'S MUTUAL CASUALTY COMPANY, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Edward Dubuisson, Dubuisson & Dubuisson, Opelousas, La., for plaintiff-appellant.
A. V. Pavy, Opelousas, La., for National Surety Corporation, intervenor-appellant.
H. L. Hammett, New Orleans, La., Hammett & Bertel, New Orleans, La., for appellee.
Before BORAH, TUTTLE and CAMERON, Circuit Judges.
The question involved on this appeal is whether the District Court committed error in dismissing the action for want of prosecution. For a clear understanding of the problem at hand, it would appear in order that we set forth in brief the events leading up to the judgment of dismissal.
This action was brought in the District Court for the Western District of Louisiana solely on the grounds of diversity of citizenship. Rayford J. Wright, on March 25, 1948, instituted it there when he filed suit under the Louisiana Direct Action Statute, LSA-R.S. 22:655, against the New Amsterdam Casualty Company, the insurer of Pierson Construction Company, to recover damages for personal injuries sustained by him as a result of the insured's alleged negligence. Following the institution of suit, National Surety Corporation, the workmen's compensation insurance carrier for plaintiff's employer, intervened to assert its subrogation claim for recovery of an amount which it had paid to plaintiff. The defendant filed its answer to the complaint on June 2, 1948, and to the intervention on September 13, 1948, but no further steps were taken in the prosecution of the suit for almost six years. On July 8, 1954, the district judge entered the following order: 1 Thereafter and on July 16, the Court by letter-order to the Clerk reinstated the cause on the docket and recalled its previous order of dismissal. Approximately eight months after the case had been reinstated on the docket, the defendant filed a supplemental answer and a motion to dismiss, alleging in both pleadings the common ground that plaintiff's cause of action and demand were prescribed under the laws of Louisiana, and more particularly under LSA-Civil Code Articles 3519 and 3536, inasmuch as more than five years had elapsed without any steps having been taken in the prosecution of the demand. The motion was granted and judgment entered dismissing the action without prejudice on the ground that the Court was bound, under Guaranty Trust Co. of New York v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079, to apply Article 3519 of the LSA-Civil Code, and to strike the case from the docket since five years had elapsed without the plaintiff's having taken any steps in the prosecution of the cause.2 This appeal followed.
Appellant rightly concedes that the court would have had the discretionary power to dismiss the suit for failure to prosecute either under its inherent powers which the court may exercise on its own motion, or pursuant to a motion filed under Rule 41(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. but vigorously insists that the court erred in refusing to exercise its discretionary powers and in holding that it was bound to dismiss under state law.
This argument, we think, is predicated in part upon appellant's assumption that the motion invoked the exercise of the court's discretion, whereas, and as the trial court correctly found, all that was presented for the court's decision was whether the court was bound to apply the applicable law of Louisiana which declares that a suit must be considered as abandoned if no steps in the prosecution thereof are taken for five years. However, we do agree with appellant that the court erred as a matter of law in granting the motion on the ground that the governing principles enuniciated in Guaranty Trust Co. of New York v. York, supra, required the application of Article 3519, "an integral part of the statute of limitations,"...
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LUMBERMEN'S MUTUAL CASUALTY COMPANY v. Wright
...never happened. The plaintiff appealed. We reversed the district court and remanded the case for trial. Wright v. Lumbermen's Mutual Casualty Company, 5 Cir., 1957, 242 F.2d 1; rehearing refused; certiorari denied, 354 U.S. 939, 77 S.Ct. 1397, 1 L.Ed.2d 1536. This time the defendant appeals......
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Andry v. Maryland Casualty Company
...to a subsequent suit on the same cause of action." (Louisiana citations and supporting quotation omitted), Wright v. Lumbermen's Mutual Casualty Co., 242 F.2d 1, 3 (5 Cir. 1957), cert. denied 354 U.S. 939, 77 S.Ct. 1397, 1 L.Ed.2d In addition to the Louisiana authorities relied upon therein......
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Nabors v. NLRB
...written, and that for damages caused by animals, or resulting from offenses or quasi offenses." 3 Construed in Wright v. Lumbermen's Mutual Casualty Co., 5 Cir., 1957, 242 F. 2d 1; Lumbermens Mutual Casualty Co. v. Wright, 5 Cir., 322 F.2d 759, 4 5 U.S.C.A. §§ 1005(a) and 1009(e). ...
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Hilbun v. Goldberg
...person, the trial court shall enter a formal order of dismissal as of the date of its abandonment.9 See Wright v. Lumbermen's Mutual Casualty Company, 242 F.2d 1 (5th Cir.), cert. denied, 354 U.S. 939, 77 S.Ct. 1397, 1 L.Ed.2d 1536 (1957).10 Cox v. Shreveport Packing Co., 213 La. 53, 34 So.......