Hoy v. T. S. Grayson Lumber Co.

ODOM, J. Eva Hicks was an employee of the defendant company and while at work in February, 1929, he received an accidental injury to his foot. He died in August following. Plaintiff, the mother of Hicks, brought this suit under section 8, Act No. 20 of 1914, as finally amended by Act No. 242 of 1928, alleging that her son died as the result of the injury; that he left no widow or descendants; and that she was wholly dependent upon him for support. She asks for compensation, as provided in the act. The suit was filed in the parish of Webster. Defendant excepted to the jurisdiction of that court on the alleged ground that its domicile was in the parish of Cad-do at the time the suit was filed. As there seems to have been no ruling on this exception, and as it is not urged here, we shall not notice it. Defendant also pleaded prescription of one year.’ Reserving its rights under these exceptions and pleas, defendant answered, admitting the employment, injury, and death of the said Hicks, but denied all other allegations, and especially denied that his death was due to the accident or that plaintiff was dependent in whole or in part upon her son. [177] There was judgment for plaintiff overruling the plea of prescription and awarding plaintiff compensation at $5.85 per week for three hundred weeks. Defendant appealed. ON THE PLEA OF PRESCRIPTION Section 31, Act No. 20 of 1914, as finally amended by Act No. 85 of 1926, reads as follows: “That in case of personal injury (including death resulting therefrom) all claims for payments shall be forever barred unless within one year after the accident or death of the parties shall have agreed upon the payments to be made under this act or unless within one year after the accident, proceedings have been begun as provided in Sections 17 and 18 of this act. Where, however, such payments have been made in any ease, said limitations shall not take effect until the expiration of one year from the time of making the last payment.” The employee, Eva Hicks, was injured in February, 1929, and died in August of that year, or within one year from the date of the accident. He and his employers did not agree upon the payments to be made under the act, nor did he begin proceedings to recover such payments pri- or to his death. His mother filed the present suit on February 20, 1930. There is some conflict in the testimony as to the date on which the employee was injured, but our conclusion is that he was injured more than one year prior to the date on which this suit was filed. The suit was filed, however, in less than one year from the date of his death. Counsel for defendant contends that plaintiff’s action is barred under the letter of the law. His contention is that, in all cases where dependents were entitled to compensation under the act, they must bring their action for such within one year from the-date of the accident, or be forever barred. We do not think so. To hold that, under section 31 of the act, suits by dependents are barred by one year from the date of the accident, would be in effect to hold that in some cases, at least, they could not recover at all. To illustrate: Suppose an employee received an injury in the course of his employment which produced death one hour before the expiration of one year. The act provides that dependents are entitled to compensation where death ensues within one year after the accident. In such eases, the dependent widow for the benefit of herself and minor children, if she had any, or the dependent mother, as the case may be, would have just one hour in which to bring suit or be “forever barred.” Or to reduce the proposition to an absurdity, let us suppose that death occurred five minutes previous to the expiration of the year. In such case, it would be impossible for a widow or a mother to bring suit within one year. They would therefore have a right without a remedy. The act gives dependents a right and a remedy, and their remedy is to bring their action within one year from the date of the death and not from the date of the accident. Their cause of action rises, not from the accident itself, but from death, caused by the accident. They have no cause or right of action unless death ensues and none until then. The holding as to prescription in the case of Guderian v. Sterling Sugar & Railway Co., Limited, 151 La. 59, 91 So. 546, 547, is applicable here, although the facts were different. There the suit was under the Compensation Acts, and prescription of one year was pleaded. In that ease the plaintiff sued for the loss of an eye, which resulted from a blow which at first produced no injurious effects upon it, but la [178] ter caused its loss. Plaintiff instituted his suit more than one year after the date on which the blow was struck, but less than a year from the date of the loss of the eye. The court said: “Plaintiff’s cause of action did not arise until he lost his eye. Tt is self-evident that one cannot sue until his cause of action arises. Concerning the prescription of one year applicable to offenses and quasi offenses, prescribed by article 3536 of the Civil Code, this court, in South Arkansas Lumber Co. v. Tremont Lumber Co., 146 La. 61, 83 So. 378, said: “ ‘A person cannot bring suit until his cause of action has accrued, and until a cause of action has accrued, prescription cannot run against it. Jones v. T. & P. R. R. Co., 125 La. 542, 51 So. 582, 136 Am. St. Rep. 339. “While the above was said in relation to another, though a kindred prescription, yet the fundamental principle involved is equally as applicable here as it was there. To the same effect as the South Arkansas Lumber Co. case is the case of Rady v. Fire Insurance Patrol, 126 La. 273, 52 So. 491, 139 Am. St. Rep. 511.” The plea of prescription was properly overruled.