Opinion
No. 31560.
March 4, 1935. Suggestion of Error Overruled April 15, 1935.
1. MASTER AND SERVANT.
Insurer and employer are liable in solido under Louisiana Workmen's Compensation Act (Acts La. No. 20 of 1914, as amended).
2. MASTER AND SERVANT.
Louisiana statute requiring compensation proceedings to be instituted within one year from time cause of action accrued held to bar proceedings in Mississippi against employer not sued within one year period notwithstanding that under Louisiana law both employer and insurer were liable in solido for compensation and insurer had been sued within the one year period and that such suit under Louisiana procedural statutes interrupted prescription against debtors in solido, since one year limitation period constituted part of substantive law which would be enforced in Mississippi while procedural statutes would not be so enforced (Acts La. No. 20 of 1914, section 31, as amended by Acts La. No. 85 of 1926, p. 124; Civ. Code La., arts. 2097, 3552; Code Miss. 1930, section 2320).
3. LIMITATION OF ACTIONS.
In cause of action arising in another state, Mississippi Supreme Court enforces Mississippi rules of procedure, which include Mississippi statutes of limitations with exceptions and interruptions thereof, both in courts of law and equity.
4. LIMITATION OF ACTIONS.
In Mississippi, suit against one of several persons liable in solido does not interrupt limitation statute as against other not so sued (Code Miss. 1930, section 2320).
APPEAL from chancery court of Pearl River county.
HON. T. PRICE DALE, Chancellor.
Suit for compensation by J.E. Bourne, employee, opposed by the Union Indemnity Company, insurer, wherein the Dunn Construction Company, employer, was subsequently made a party. From a decree for employee, employer appeals. Reversed and bill dismissed.
Parker Shivers, of Poplarville, for appellant.
The appellant, Dunn Construction Company, contends that its demurrer should have been sustained; that section 31 of the Louisiana Compensation Act of 1914, as amended, limited complainant and his rights to maintain a suit to one year from the date of the accident or from the date of payments as a result of the accident.
Louisville Nashville R.R. Co. v. Dixon, 150 So. 811, 168 Miss. 14; Floyd v. Vicksburg Cooperage Co., 126 So. 395, 156 Miss. 567; Travelers Insurance Co. v. Inman, 138 So. 339, 167 Miss. 288.
Appellant takes the position that as to the bar provided by Section 31 of the Louisiana Compensation Act, the statute law of the State of Mississippi and the rulings of the Supreme Court of the State of Mississippi shall govern, that this is a question of procedure and the law of the forum should control and does control.
Section 2320, Code of 1930; Sections 2097 and 3552, Louisiana Civil Code.
We take the position that as to any statute where the limit of time within which suit may be brought is a condition attached to the right, an integral part of the right, granted by the statute or cause of action, the time limit is as is held by the courts of both Mississippi and Louisiana not a statute of limitations and, therefore, the provisions of law relative to the interruption of prescription do not apply, it being held specially by the Louisiana Court that such a right or time limit is a pre-emption.
Mathews v. Kansas City Southern Ry. Co., 10 La. App. 382, 120 So. 907-11; Kerner v. Trans-Miss., etc., Co., 158 La. 853, 104 So. 740; Partee v. St. Louis S.F.R. Co., 204 F. 970, 51 L.R.A. (N.S.) 721; Gulf Ship Island R.R. Co. v. Bradley, 110 Miss. 152, 69 So. 666.
There is no better established principle in our jurisprudence than this, that no man shall be affected by a suit and decree to which he was neither party nor privy and of which he had no legal notice.
Section 110, Griffith's Mississippi Chancery Practice.
The record here discloses that the Dunn Construction Company was not a party to any cause of action until September 5, 1933, at which time the amended and supplemental bill was filed bringing it into the picture for the first time.
Foster v. Canning Co., 71 Miss. 624, 15 So. 931; Moore v. Luke, 70 So. 84, 110 Miss. 207; Pennington v. Purcell, 125 So. 79, 155 Miss. 554.
It is well settled in the State of Mississippi that the filing of an amended bill, making new parties, as in the present case, is a new cause of action in so far as the new parties are concerned, and any statutes of limitations or statutes barring the recovery at an earlier date apply and can be availed of by the persons being made defendants or a new party by a supplemental bill.
Griffith's Chancery Practice, Section 398; Brown v. Gouldsby, 34 Miss. 437; Potts v. Hines, 57 Miss. 735; Cox v. Mortgage Co., 88 Miss. 88, 100.
Section 2313 of the Mississippi Code of 1930 reads as follows: "The completion of the period of limitation herein prescribed to bar any action, shall defeat and extinguish the right as well as the remedy; but the former legal obligation shall be a sufficient consideration to uphold a new promise based thereon."
Musser v. First National Bank of Corinth, 147 So. 783, 165 Miss. 873; Green v. Green, 110 So. 218, 145 Miss. 87; Travelers Ins. Co. v. Inman, 138 So. 339, 167 Miss. 288.
In applying the remedy, the law of the forum controls and the court having jurisdiction of the parties applies the remedies of the forum as nearly as practically possible to the rights existing under the foreign law.
Floyd v. Vicksburg Cooperage Co., 126 So. 395, 156 Miss. 567; Louisville Nashville R.R. Co. v. Dixon, 150 So. 811, 168 Miss. 14.
The period of one year prescribed in their Workmen's Compensation Law is not a mere statute of limitations but is a matter of substance integral in the statute, a change in it with regard to the allowable period for suits could not be made so as to effect suits for injuries occurring previous to the change or amendments.
White v. Louisiana Western R.R. Co., 140 So. 486; Floyd v. Vicksburg Cooperage Co., 126 So. 395, 156 Miss. 567.
The law must be interpreted as expressing precisely what it says or what the words are commonly understood to mean.
Koch v. Bridges, 45 Miss. 257; State v. Gragiacomo, 71 Miss. 417; Hawkins v. Carroll, 50 Miss. 735; Peeler v. Peeler, 68 Miss. 141; Hammer v. Lumber Co., 100 Miss. 349, 56 So. 466; State v. Traylor, 100 Miss. 544, 56 So. 521; Rhys v. Mood, 113 So. 367; Wyatt v. Finely, 118 So. 874.
Hathorn Williams, of Poplarville, for appellee.
The Louisiana Workmen's Compensation Act created an obligation in solido against the Union Indemnity Company and the Dunn Construction Company, and the filing of suit against Union Indemnity Company, within one year from the date of the accident, suspended the running of the statute as to both the Union Indemnity Company, the insurer, and Dunn Construction Company, the employer.
Sections 2097 and 3552, Louisiana Civil Code; Ryers v. Rothschild, 155 So. 785; Bernard v. Aetna Ins. Co., 150 So. 305; Dodd v. Lakeview Motors, Inc., 149 So. 278; American Heating Plumbing Co. v. West End Country Club, 131 So. 466; Zeller v. Louisiana Cypress Lbr. Co., Ltd., 121 So. 671; Continental Supply Co. v. Fisher Oil Co., 100 So. 64; Lutz v. Long-Bell Lbr. Sales Corporation, 153 So. 319; Turner, Wilson Co. v. McMain, 29 La. Ann. 298; Frazier v. Hardee, 21 La. Ann. 541; Article 7, Sections 10 and 29, Constitution of Louisiana.
Under the well settled law of Louisiana, appellant and the Union Indemnity Company are joint obligors and the filing of the suit against, and service of process upon, the Union Indemnity Company interrupted the running of the one year statute of limitations as to appellant. It appears, therefore, that the question presented for the decision of this court is whether or not this court will follow the well settled law of Louisiana on this point.
Travellers' Ins. Co. v. Inman, 128 So. 877; Floyd v. Vicksburg Cooperage Co., 126 So. 395.
When the Court of Appeals of Louisiana, which is the court of last resort in compensation cases, held, as is shown in the many cases cited above, that the employer and the insurer in compensation cases are jointly liable, and that filing of suit against one suspends the running of the statute of limitations as to both, then such decisions by the court became a part of the statute to the same extent as if it had been written in the face of the statute.
59 C.J. 1036, par. 613; 25 R.C.L. 462, par. 5; Douglas v. Pike County, 101 U.S. 677, 25 L.Ed. 968; Marine National, etc., v. Kaltz-Zumen et al., 55 Sup. Ct. Rep. 226, 79 L.Ed. 208; U.S. v. Guaranty Co., 55 Sup. Ct. Rep. 221, 79 L.Ed. 199.
Louisiana statutes will be interpreted by the Supreme Court of Mississippi in accordance with the aforesaid decisions of the courts of Louisiana.
59 C.J. 1037, par. 614; Floyd v. Vicksburg Cooperage Co., 126 So. 395.
The statutes of a foreign state will be interpreted in accordance with the decisions of the courts of that state.
59 C.J. 1037, par. 614; 25 R.C.L. 952, par. 206.
Argued orally by H.H. Parker, for appellant, and by E.B. Williams, for appellee.
Bourne, appellee, instituted this suit in the chancery court of Pearl River county originally against the Union Indemnity Company seeking to recover compensation alleged to be due him under the Workmen's Compensation Act No. 20 of the Laws of Louisiana of 1914, and amendments thereto, for injuries sustained while working for the Dunn Construction Company. This suit was brought within twelve months of the date of the accrual of the cause of action. The liability against the Union Indemnity Company was that of insurer, as contemplated by the act. The cause was transferred to the federal court and remanded by it to the chancery court. The insurer had become insolvent in the meantime, and thereupon on September 5, 1933, Bourne filed his supplemental or amended bill for the first time making the Dunn Construction Company, the appellant here, a party thereto. This amended bill was filed more than twelve months after the cause of action accrued.
The Dunn Construction Company appeared and demurred to the bill on the ground that the cause of action was barred by the twelve-month limitation found in section 31, Act No. 85, Laws of Louisiana of 1926 (page 124). The cause of action here arose subsequent to the passage of that act. The demurrer was overruled, the Dunn Construction Company answered, and there was a decree in favor of Bourne for the amount claimed to be due him, from which the Dunn Construction Company prosecutes an appeal here.
It is necessary to state further that Bourne was an employee of the Dunn Construction Company, and the injury alleged to have been sustained by him occurred while he was engaged in its service on a contract being executed and performed wholly in the state of Louisiana.
The sole assignment of error presented here is that the court below erred in overruling the demurrer filed by appellant to appellee's bill.
Confessedly, there was no effort to sue the Dunn Construction Company within the twelve-month period. It is the contention of the appellee that the Union Indemnity Company, the insurer, and the Dunn Construction Company, the employer, are liable in solido to Bourne, the employee of the Dunn Construction Company, and, further, that having instituted suit against the insurer, a party liable in solido with the appellant to the appellee, within the twelve-month period, then said suit brought against the insurer intercepted the running of the twelve-month period of limitation as to this appellant, as provided in section 31. Section 31 is 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 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 case, said limitations shall not take effect until the expiration of one year from the time of making the last payment."
The interrupting statutes in the Civil Code of Louisiana, relied on by appellee, are as follows:
"Art. 2097 (2092). A suit brought against one of the debtors in solido interrupts prescription with regard to all."
"Art. 3552 (3517). Id. Debtors in Solido; Heirs. A citation served upon one debtor in solido, or his acknowledgment of the debt, interrupts the prescription with regard to all the others and even their heirs. . . ."
Section 31, quoted above, is part of the Louisiana Workmen's Compensation Act, while the sections interrupting prescription are part of what we conceive to be the general statutes of limitations or prescription of the state of Louisiana. The insurer and the employer are liable in solido within the terms of the compensation act. See Bernard v. Ætna Ins. Co. (La. App.), 150 So. 305, and Dodd v. Lakeview Motors, Inc. (La. App.), 149 So. 278. In these cases the Court of Appeals of Louisiana applied their general statutes interrupting prescription.
The controlling principle governing the decision of this case was announced and determined by this court in the case of Louisville Nashville R. Co. v. Dixon, 168 Miss. 14, 150 So. 811, wherein this court held, with reference to the particular act here under review, that it created a right of action not existing under the common law, and by its own terms fixed the time within which the action must be begun and that this time limit is a substantive condition inherent in the statute and not a statute of limitations or prescription, and that the right to institute action thereunder becomes extinct after the time fixed therein has elapsed. Our court also called attention to the case of Norwood v. Lake Bisteneau Oil Co., 145 La. 823, 83 So. 25, wherein the Supreme Court of Louisiana held that the twelve-month period was a statute of prescription, and, as we understood it, not a bar to the action, although the statutes providing for interruption were not a part of the act.
Subsequently, in White v. Louisiana Western R. Co., 174 La. 308, 140 So. 486, the Supreme Court held that the period of one year limitation referred to in section 31 was not a mere statute of limitations, but was so much a matter of substance integral in the statute that a change in it with regard to the allowable period for suits could not be made so as to affect suits on liability occurring prior to the change or amendment, and further held that such a change in the statute would impair the obligation of a contract. The view of the Supreme Court in the White Case was followed and amplified by the federal Circuit Court of Appeals for this district in Ford, Bacon Davis, Inc., v. Volentine (C.C.A.) 64 F.2d 800.
We are therefore of the opinion that we are justified in construing this period of limitation to be a part of the substantive law of the state of Louisiana, which is binding upon us, not being contrary to our own public policy, and in the Dixon Case, supra, we declined to apply an exception or interruption arising under our statute to this twelve-month limitation, and for the same reason we will not here apply the general statute of limitations nor the exceptions or interruptions thereof, as provided by the prescription statutes of the state of Louisiana. As we view it then, this twelve-month statute contained in section 31 is such a limitation upon the right to bring the action that it will not only be enforced in this state but, as we understand it, everywhere. The limitation accompanies the obligation, at least in this state. As the time has elapsed, the right has gone, and that time provided for in section 31 is not a mere matter of procedure but is an integral part of the right to bring the action; and in our view the Louisiana general statutes of limitations, and the interruptions thereof, are not pointed to nor aimed at this Workmen's Compensation Act. The general statutes of limitations and the interceptions thereto, or interruptions thereof, are part of the procedure of Louisiana and not part of its substantive law. So regarding them, they cannot be applied by us to this cause of action in this state. We enforce our own rules of procedure, which include our own statutes of limitations with the exceptions and interruptions thereof both in courts of law and equity. Fears v. Sykes, 35 Miss. 633; Rucks v. Taylor, 49 Miss. 552; Perkins v. Guy, 55 Miss. 153, 30 Am. Rep. 510; Scharff v. Lisso, 63 Miss. 213; Wright v. Mordaunt, 77 Miss. 537, 27 So. 640, 78 Am. St. Rep. 536; Fisher v. Burk, 123 Miss. 781, 86 So. 300; 12 C.J., p. 447, section 27; and 25 Cyc. pp. 1018, 1019
Our own statute of limitations, section 2320, Code of 1930, is directly the opposite of the above-quoted Louisiana statute, and is in this language: " Bar of statute of limitations against one does not affect another jointly interested. — In all cases where the interests are joint, one shall not be barred because another jointly interested is, but the statute of limitations provided in this chapter shall be severally applied, and not jointly, to the right of actions, in whatever cause, pertaining to each of all the parties, though jointly interested."
Therefore, the rule in Mississippi is that a suit against one of several persons liable in solido does not interrupt the statute as against the other not so sued, and this we have enforced. Griffith's Chancery Practice, sections 110, 298; Brown v. Goolsby, 34 Miss. 437; Potts v. Hines, 57 Miss. 735; Foster v. Canning Co., 71 Miss. 624, 15 So. 931; Cox v. Mortgage Co., 88 Miss. 88, 40 So. 739; Moore v. Luke, 110 Miss. 205, 70 So. 84; Pennington v. Purcell, 155 Miss. 554, 125 So. 79.
Having determined that the twelve-month period of limitation, herein being considered, is a rule of substantive and not adjective law, we are of opinion that when the Dunn Construction Company was finally brought into the suit, so far as it was concerned, the twelve-month statute had barred the action, and the suit against one jointly liable with it would not, in this state, interrupt the running of that statute, and as to the appellant here, the cause of action is finally barred.
We are not dealing here with a title acquired to physical property by the running of the statutes of prescription or limitations of another state or interruptions thereof or exceptions thereto, but we are concerned here with a statute creating a cause of action unknown to the common law with its own limitations and restrictions contained therein.
Reversed and bill dismissed.