May 23, 1938.
1. ABATEMENT AND REVIVAL.
Under Louisiana statute, a cause of action for injuries in favor of automobile guest which arose out of accident which occurred in Louisiana, survived for period of one year after his death to his wife and minor child as sole beneficiaries thereof to exclusion of other adult children (Rev. Civ. Code La., art. 2315).
2. ABATEMENT AND REVIVAL.
Under Louisiana law, no right accrued to estate of automobile guest who died after commencement of suit against owner of automobile for injuries received in accident which occurred in Louisiana on account of physical pain and suffering and other damages sustained by guest by reason of injury sued for (Rev. Civ. Code La., art. 2315).
3. ABATEMENT AND REVIVAL.
Under the common and civil law of Louisiana, a right of action for a personal injury is abated by the death of the injured person, subject to exception in statute, whether such person dies from the injury or from some other cause and regardless of whether he has instituted suit to recover damages (Rev. Civ. Code La., art. 2315).
4. ABATEMENT AND REVIVAL.
Under Louisiana law a cause of action for personal injury is not inheritable, but survives only by virtue of statute in derogation of common and civil law of Louisiana (Rev. Civ. Code La., art. 2315).
5. ABATEMENT AND REVIVAL.
The Louisiana statute relating to survival of cause of action for personal injuries must be strictly construed (Rev. Civ. Code La., art. 2315).
6. LIMITATION OF ACTIONS.
A statute which creates a cause of action not known to the common law and fixes a time within which an action must be commenced thereunder is not a statute of limitation, but the right given thereby is a conditional one and the commencement of the action within the time fixed is a condition precedent to liability under the statute, the time prescribed being an integral part of the statute and the completion of the time prescribed completely extinguishing the cause of action.
The failure of the widow and minor child of an automobile guest to exercise right to prosecute cause of action for personal injuries received in automobile accident which occurred in Louisiana which had belonged to automobile guest during his life, within one-year period prescribed by Louisiana statute, would effect an absolute lapse of the right, the stipulated time not being a mere prescription (Rev. Civ. Code La., art. 2315).
8. ABATEMENT AND REVIVAL.
Although the court in which was pending an automobile guest's action for injuries received in automobile accident in Louisiana had jurisdiction to revive suit after death of guest, court was without authority to do so in the name of administrator of the estate of the guest or to authorize him to prosecute a cause of action, which under Louisiana statute accrued alone to the wife and minor daughter of the guest instead of to the estate or to all the heirs (Rev. Civ. Code La., art. 2315).
Under Louisiana law, an automobile owner's invitation to a guest to ride in an automobile on which the tires had been driven 17,000 miles did not constitute "negligence" or involve an unreasonable risk of harm for which owner would be liable for injuries received by guest when tire blew out, in absence of proof that tires contained any apparent defects or defects which could have been discovered by the owner in the exercise of ordinary care, notwithstanding that owner knew that his tires were worn and weak as compared with condition of newer tires.
A motorist is not liable for injuries to guest which are the result of a defect in the vehicle not known to the motorist, but the motorist is liable only for active negligence which increases the hazard or creates a new one.
A person gratuitously transported in an automobile whether at his request or at the owner's invitation assumes all ordinary risks of injury incident to automobile travel.
The risk of riding on tires which had been used for approximately 17,000 miles and which had no apparent defects discoverable by owner of automobile in exercise of ordinary care was "ordinary risk of automobile travel" which was assumed by guest, precluding recovery for injuries received by guest when tire blew out.
It is common knowledge that tires which have been used for a considerable distance and which are weak as compared with new tires but which have no apparent defects discoverable by the owner in the exercise of ordinary care may be found on a large percentage of automobiles in constant use by persons in the more humble stations of life.
APPEAL from the circuit court of Lauderdale county. HON. ARTHUR G. BUSBY, Judge.
Jacobson Snow, of Meridian, for appellant.
This suit is for injury and damages sustained in an alleged tort or negligence in an automobile accident in the State of Louisiana, and the substantive rights of the parties are governed by the laws of the State of Louisiana, where the accident occurred.
Mangum v. Reid, 178 Miss. 352, 173 So. 284; Green v. Maddox, 168 Miss. 171, 149 So. 882; Boothe v. Teche Lines, Inc., 165 Miss. 343, 143 So. 418; D'Antoni v. Teche Lines, Inc., 163 Miss. 668, 143 So. 415; Sharples v. Watson, 157 Miss. 236, 127 So. 779; Floyd v. Vicksburg Cooperage Co., 156 Miss. 567, 126 So. 395; Railroad v. Williams, 102 Miss. 735, 59 So. 883; Restatement of Law, Conflict of Laws, pages 478 to 484.
Under the laws of Louisiana the administrator of a deceased person has no right of action for damages for an injury causing death, and an administrator cannot maintain such action in Mississippi for the wrongful death of his intestate in Louisiana.
Article 2315, Revised Civil Code of Louisiana.
The original suit was filed by Joe Farris in his lifetime, and after his death, could only be maintained by his beneficiaries under the laws of the State of Louisiana, to-wit, Mrs. Mary Farris and Victoria Farris, her minor daughter, in an action instituted within one year from his death, which occurred on June 7, 1935. The amendment filed on October 29, 1936, stated a new cause of action, and the new cause of action could not be brought under the laws of the State of Louisiana because it was filed more than one year after the death of the decedent, Joe Faris.
Article 2315, Revised Civil Code of Louisiana; Louisville Nashville R.R. Co. v. Dixon, 168 Miss. 14, 150 So. 811; Dunn Construction Co. v. Bourne, 172 Miss. 620, 159 So. 841; Currie v. Credit, 176 So. 723; Miss. Central R.R. v. Maples, 107 Miss. 720, 65 So. 644; Brister v. Wray-Dickerson Co., Inc., 159 So. 430; Guillory v. Avoyolles Ry. Co., 104 La. 11, 28 So. 899; Illinois Central R.R. Co. v. Wales, 177 Miss. 875, 171 So. 536; Cox v. Mortgage Co., 88 Miss. 88, 40 So. 739; Reed v. Warren, 136 So. 59; Kerner v. Trans-Mississippi Terminal R.R. Co., 158 La. 853, 104 So. 740; Baltimore Ohio Southwestern R.R. Co. v. Carroll, 280 U.S. 491, 74 L.Ed. 566; Clark v. G.M. N.R. Co., 132 Miss. 627, 97 So. 185; Travelers' Ins. Co. v. Inman, 167 Miss. 288, 138 So. 339; Orleans Dredging Co. v. Frazie, 173 So. 431; Mo. K. T.R.R. Co. v. Wulf, 226 U.S. 570, 57 L.Ed. 355, 33 Sup. Ct. 135; Central Railroad of Georgia v. Jones, 108 S.E. 618; Ford, Bacon Davis, Inc. v. Valentine, 64 F.2d 800.
The court below erred in not affording appellant his rights under the demurrers to the amended declaration and special pleas to the declaration after the demurrers were overruled, under Article 4, Section 1, of the Constitution of the United States, declaring that full faith and credit should be given in each state to the public acts of every other state.
There can be no recovery in this suit for any money expended by the beneficiaries for hospital, doctor and drug bills for the decedent Joe Farris.
Freibert v. Sewerage and Water Board of New Orleans, 159 So. 767; Article 2315, Revised Civil Code of Louisiana.
The court below erred in refusing to grant the appellant the requested peremptory instructions.
Person gratuitously transported in motor vehicle, whether at their request or at owner's or authorized driver's invitation, assumes all ordinary risk of injury incident to automobile travel.
Green v. Maddox, 168 Miss. 172, 151 So. 160; Gower v. Strain, 169 Miss. 344, 145 So. 244; Banta v. Moresi, 119 So. 901; Smith v. Roueche, 153 So. 487; Christos v. Manos, 134 So. 741; Ferry v. Holmes Barnes, Ltd., 124 So. 848; Lasseigne v. Kent, 142 So. 867; 4 Blashfield, Cyclopedia of Automobile Law and Practice, pages 336 and 337, sec. 2515; Higgins v. Mason, 174 N.E. 77; Kemp v. Stephenson, 247 N.Y.S. 650; Galbraith v. Bosch, 196 N.E. 36, 267 N.Y. 230; O'Shea v. Lavoy, 20 A.L.R. 1008; Dr. Pepper Bottling Co. v. Gordy, 174 Miss. 392, 164 So. 236.
The scintilla of evidence rule is not recognized in Mississippi, but verdicts must be based on substantial and reasonably believable evidence.
Y. M.V.R. Co. v. Lamensdorf, 178 So. 80; Y. M.V.R. Co. v. Skaggs, 179 So. 274; Teche Lines, Inc. v. Bounds, 179 So. 747; Universal Truck Loading Co. v. Taylor, 174 Miss. 353, 164 So. 3; Great A. P. Tea Co. v. Davis, 177 Miss. 562, 171 So. 550; Gunning v. Cooley, 281 U.S. 90, 74 L.Ed. 720.
M.V.B. Miller and Reily Parker, all of Meridian, for appellees.
It was the contention of the appellee in the court below that the defendant would be liable to the plaintiff if the tires in question were unsafe and dangerous and the defendant knew of such unsafe condition and negligently used the automobile thereafter and the automobile was caused to wreck and injure the deceased as a proximate result of such negligence, then the defendant was liable. And we now contend that this was the question submitted to the jury by the appellees and that the law is correctly stated therein.
The appellant contends that the law of Louisiana is to be applied in this case, and we agree with them in this regard, and accept the law of Louisiana as governing on this trial. But we do not disagree, in the main, as to what the law of that state is.
The general rule is that, where an owner of an automobile knows of its defects and allows another to drive it without warning him of its defects, which are unknown to the driver, he is guilty of negligence and liable for whatever damage is caused by accident in which the defect of the car was the cause.
Christos v. Manos, 134 So. 713; Sears v. Interurban Transportation Co., 125 So. 748.
From the testimony in this record and the instruction granted by the court as requested by the appellees, it will be seen that the jury was required to find that the tires were in fact dangerous and unsafe, and that the appellant knew of such unsafe condition, and that the injuries were sustained as a proximate result thereof, and for that reason there is no error of law as applied to the merits of the case.
While the demurrer was pending, and before it was heard, the appellees realizing that where an injury causing the death was inflicted in the State of Louisiana, and an action for same was brought in this state, the laws of Louisiana fixed the rights of the parties to the suit and is not in conflict with the policy of this state, and that under the laws of Louisiana the administrator of a deceased person has no right of action for damages for an injury causing his death, and an administrator cannot maintain such action in Mississippi for the wrongful death of his intestate in Louisiana, as was held by this court in the case of Railroad v. Williams, 102 Miss. 735, 59 So. 883, but did, on October 29, 1936, file a petition to amend his declaration, and in his petition he asked to substitute the survivors of Joe Farris, deceased, in the place and stead of Fred Farris, Administrator of the Estate of Joe Farris, deceased.
This is not a case where two different laws may be applied to the same facts, and one law is definitely relied upon as the basis of recovery to the exclusion of the other law, and after the right under the other law has expired, an amendment is asked whereby the expired right is sought to be applied. It is not a case where a party is entitled to a named relief under the law, and after the expiration of the right to sue has expired, and a new set of facts are asserted as the basis of a new right or an additional recovery. The cases referring to such condition are not applicable here because the facts are not the same. And in all the cases decided, it is the facts that the court looks to as a basis of decision, in order that the plaintiff may be permitted to pursue the real issue to a conclusion when started.
Even when a declaration omits to state charges which are essential to liability, such failure only constitutes a defectively stated cause of action and an amendment, which would furnish the additional essential allegation, may be added by amendment without being barred by the statute of limitations.
I.C.R.R. Co. v. Wales, 171 So. 536; N.Y.C. H.R. Ry. v. Kinney, 67 L.Ed. 294; Tully v. Herrin, 44 Miss. 626; McDonald v. State of Nebraska, 101 Fed. 171.
An examination of the record in this case will reveal that every declaration filed demanded damages only for the pain and suffering of the deceased, and the expenses incident to his treatment therefor. It is not true that any damages sustained by the new or substituted plaintiffs were demanded, and the pleadings will so show.
The cause being pursued in this action has never changed, but from the beginning has been based upon the same acts and charging the same negligence and asking for the same injury and elements of damage.
M.K. T. Ry. v. Wulf, 57 L.Ed. 355; Clark v. G.M. N.R.R. Co., 97 So. 185; Broom v. Southern Ry., 76 So. 525; Grand Lodge K. of P. v. Hill, 70 So. 347; McCall v. Lee, 11 N.E. 522; N.C. St. L.R.R. Co. v. Anderson, 185 S.W. 677, 1918C L.R.A. 1115.
Argued orally by Gabe Jacobson, for appellant, and by Marion W. Reily and M.V.B. Miller, for appellee.
This appeal is from a judgment rendered in the Circuit Court of Lauderdale county for the sum of $4,000.00 on account of personal injuries and damages sustained by Joe Farris, of Meridian, Mississippi, in an accident which occurred on the 2nd day of April, 1934, while he was riding as a guest of the appellant in an automobile in the state of Louisiana.
The suit was originally filed by the said Joe Farris on the 11th day of February, 1935. While the case was pending he died on June 7th, 1935, and left surviving him his wife and four children, one of whom was a minor. The case was predicated upon article 2315 of the Revised Civil Code of Louisiana, which provides, among other things, that, "Every act whatever of man that causes damages to another, obliges him by whose fault it happened to repair it," and whatever cause of action Joe Farris had in his lifetime survived for a period of one year after his death to his wife and his minor daughter, as sole beneficiaries thereof, to the exclusion of the other three adult children, as therein provided for. But on October 10th, 1935, an adult son of Joe Farris took out letters of administration for the purpose of conducting the original suit, and to enforce any and all rights and liabilities accruing to the estate of Joe Farris, deceased, although there were none so accruing, on account of the physical pain and suffering and other damages sustained by him, by reason of the injury sued for. On that date an order was entered by the Circuit Court attempting to revive the cause in the name of the administrator, and to authorize him to file an amended declaration. A demurrer to this amended declaration was interposed, which was set for hearing in vacation, and finally sustained in term time on October 29th, 1936. Whereupon a petition was presented, asking that Mrs. Mary Farris, the widow of Joe Farris, and his four children, Fred Farris, Venea Farris, A.J. Farris, adults, and Victoria Farris, a minor, be substituted as plaintiffs in the place and stead of the administrator. This authority was granted, and thereafter the declaration was amended so as to substitute the names of only the wife and minor daughter as plaintiffs, they being the sole beneficiaries of the survived cause of action as aforesaid. This last declaration alleged the same facts as to the accident and injury to Joe Farris as alleged by the administrator, and sought recovery of the same elements of damage.
Since the right of action for a personal injury does not survive the death of the injured person, either under the common law or the civil law of Louisiana, it is abated by the death of the person injured, except for article 2315 of the Civil Code of that state, whether such person dies from the injury or from some other cause, and regardless of whether he has, or has not, instituted suit to recover the damages. In other words, the cause of action held by the injured person is not inheritable, but survives only by virtue of the above-mentioned statute in derogation of common law and civil law. And under the decisions of the Supreme Court of Louisiana the statute must be strictly construed. Kerner v. Trans-Mississippi Terminal R. Co. 156 La. 853, 104 So. 740; and Reed v. Warren, 172 La. 1082, 136 So. 59.
It is well settled that a statute which creates a cause of action not known to the common law, and fixes a time within which an action must be commenced thereunder, is not a statute of limitation, but the right given thereby is a conditional one, and the commencement of the action within the time fixed is a condition precedent to any liability under the statute. The time prescribed is an integral part of the statute, and the completion of the time prescribed completely extinguishes the cause of action.
In Brister v. Wray-Dickenson Co., Inc., 159 So. 430, the Court of Appeals of Louisiana held that the failure to exercise the right within the prescribed delay, under the Workmen's Compensation Law, effects an absolute lapse of the right, and that the stipulated time within which the right must be exercised was not a mere prescription. By analogy the same rule is applicable here.
Relying on the provisions of article 2315 of the Revised Civil Code of Louisiana, and the decisions of the Supreme Court of that state, appellant also demurred to the amended declaration which sought to substitute the appellees as plaintiffs, the ground of the demurrer being that they were not made parties to the suit until after the expiration of one year from the death of Joe Farris; and appellant contends that by this amendment a different cause of action to that sued on by Joe Farris was asserted for the first time on behalf of the appellees — the former cause of action being one of common or civil law liability, and the latter being a statutory cause of action. This demurrer was overruled.
However, the real question is whether the amendment relates back to the attempted revival of said suit in the name of the administrator, whereby he was seeking within a period of one year after the death of Joe Farris to recover for the same injury, and on the same facts later asserted by the appellees, as beneficiaries under article 2315 of the civil code.
It must be conceded that although the court below had jurisdiction to revive the suit, he was without legal authority to do so in the name of the administrator of the estate of Joe Farris, deceased, or to authorize him to prosecute a cause of action, which accrued alone to the wife and minor daughter, instead of to the estate or to all of the heirs. However, the question as to whether the amendment which substituted the real beneficiaries after the one-year period expired had the effect of relating back to the attempted revival of the suit in the name of the administrator, so as to prevent the application of the limitation of one year, is not without difficulty in view of the decision of the U.S. Supreme Court in the case of Missouri K. T.R. Co. v. Wulf, 226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. 355, Ann. Cas. 1914B, 134; where a suit brought by the plaintiff in her individual capacity within two years after an accident had occurred as governed by the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq., and on which cause of action suit could be brought only by the personal representative within that time, was allowed to be amended accordingly, after the expiration of two years, where she was the sole beneficiary thereof in either instance, the Court saying that the amendment was not equivalent to the commencement of a new cause of action, but that the change was in form, and not in substance, where the same facts were relied on to show liability.
But the decision in the case at bar need not necessarily rest on the issue as to whether or not the cause of action was barred before the appellees became parties to the litigation in such capacity as to prosecute the same for their own joint use and benefit. The judgment must be reversed on the facts relied on to constitute actionable fault on the part of appellant under article 2315 of the Civil Code of Louisiana. The proof shows, without material conflict, that the automobile in which the appellant invited Joe Farris and others to ride with him from Meridian to Shreveport had been driven approximately 17,000 miles as a family car, mostly in the city; that the tires on this car were the ones with which it was equipped when purchased new about sixteen months previous to the accident; that before they left Meridian, on April 2d 1934, the appellant, in company with his son, had a mechanic examine or check the car to ascertain whether it was in a suitable condition for making the trip; that both they and the mechanic examined the tires, and that there were no apparent defects in any of them; that appellant's son then drove the car from Meridian on the trip, as far as Tallulah, Louisiana, a distance of more than 150 miles, and at a much greater rate of speed than it was being driven at the time of the accident, without any tire trouble having developed on the way; that upon leaving Tallulah, Louisiana, one of the other guests, a Mrs. Abraham, who was a competent driver of several years' experience, was driving the car at a reasonable and lawful rate of speed, not in excess of 45 miles per hour, on a straight and paved highway, when the tire on a rear wheel had a "blow-out" and came off the wheel; that thereupon the lady lost control of the car, and it turned over and injured Joe Farris; that he and other injured guests were carried back to Tallulah, Louisiana, and that some of the occupants proceeded on in the car to Shreveport and then returned to Meridian, after the spare tire was transferred to this wheel at the scene of the accident; that at least two, if not all three, of the other tires were used on the car continuously thereafter, until they had been driven a total distance of 25,100 miles; that the car had been kept in a dry garage when not in use, and no proof was offered by appellees to show whether the tire in question had ever been punctured or abused.
The proof further shows, without the slightest conflict, that tires of that make and quality are customarily used with reasonable safety until they have been driven at least 25,000 miles; that the life of a tire depends on the manner in which it has been used, the number of punctures sustained, whether it has been kept in a damp instead of a dry place when not in use, and on many other considerations as to the care taken of them; and it was shown that blowouts are not peculiar to tires used for any given maximum amount of mileage.
The result is that under the decisions of the courts of Louisiana, which control in the present case, it cannot be said that one is negligent, or that his act involves an unreasonable risk of harm to another when such other is invited to ride in a car on which the tires have been driven 17,000 miles, in the absence of proof that the tires contain any apparent defects, or defects which could have been discovered by the owner in the exercise of ordinary care, and where it is only shown that the owner knew that his tires were worn and weak as compared with the condition of newer tires.
That the appellant in good faith believed that the tire in question was reasonably safe for travel is evidenced by the fact that he permitted its use by his own family, and both he and his son were passengers in the car when the accident occurred.
In the case of Banta v. Moresi, Court of Appeals of Louisiana, 9 La. App. 636, 119 So. 900, 901, the Court said: "Counsel for plaintiff endeavors to hold defendant responsible because, as he contends, he knew, at the time he invited plaintiff for the ride to Arnaudville, that the tires on his car were in bad condition. There is no proof that there were any apparent defects in the tires, or that defendant had any reason whatsoever to believe that there were any, latent or otherwise. It was his family car, and it cannot be justly supposed that he would have used it if the tires had been in a precarious condition, as he had ample means to replace them. It was shown, it is true, that the car had traveled 14,000 miles, but it appears from the evidence of experienced men in the automobile business that tires of the character in question, after being used over 25,000 miles, are still in good running order. Because the tires on his car had gone over 14,000 miles, therefore, affords no ground for the contention that defendant knew or even should have known that the tires might have been in bad condition, if in fact they were. The proof is, however, that a new tire may be deflated at any time and without previously showing any defects in its make or construction. This, it appears, may likewise happen to an old tire. Such being the proof on this question, we find no merit in the contention that defendant had any knowledge of any defect in the tires of his car. As a matter of fact, he could not have had such knowledge, if any existed, as the deflating of a tire may be the result of causes for which it is difficult if not impossible, to account, as appears from the testimony."
In Huddy on Automobiles, 7th Ed., Sec. 803, which has been quoted with approval by the Louisiana courts, the rule is thus stated: "In some cases the rule seems to have been adopted that the driver of a motor vehicle is not liable for injuries received by his guest, when such injuries are the result of a defect in the vehicle not known to the driver. This view is sustained by the reasoning that the relation between the parties is that of licensor and licensee, and following the principle of defective buildings and premises, it is said that a licensee takes the vehicle as he finds it. Under such a rule, the driver is liable only for active negligence, which increases the hazard or creates a new one."
Moreover, our Court in the case of Green v. Maddox, 168 Miss. 171, 172, 149 So. 882, 151 So. 160, where the injury was sustained in Louisiana, recognized the rule that a person gratuitously transported in a motor vehicle, whether at his request or at the owner's invitation, assumes all ordinary risks of injury incident to automobile travel; and we think that riding on tires which have been used for approximately 17,000 miles, and which have no apparent defects discoverable by the owner in the exercise of ordinary care, is one of the ordinary risks of automobile travel being assumed daily throughout the country. It is a matter of common knowledge that such tires may be found on a large percentage of the cars now in constant use by persons in the more humble stations of life. A familiar instance is the great number of cars being sold by what are known as "used car" agencies, and where such tires are considered by ordinarily prudent persons to be reasonably safe for use. A knowledge that these tires are weak, as was shown by the statement of the appellant in this case to the husband of one of the guests before they left Meridian, may cause the owner to be apprehensive of tire trouble on a trip, and at the same time not be sufficient to cause him, as an ordinarily prudent person, to regard them as dangerous or unsafe for use. The failure of appellees in their attempt to prove that the tire in question had "boots" in it as a result of punctures, or to show other apparent defects, than the mileage traveled on the tire, was a failure to make substantial proof of negligence.
The requested peremptory instruction for the appellant we think, should have been given.
Reversed and judgment here for the appellant.
Reversed and judgment here.