Corbett E. Nini, Jr., was injured July 19, 1966 while employed by defendant Sanford Brothers, Inc. He received workman's compensation until January 16, 1967. On December 7, 1967 Nini authorized his attorney to file suit for workmen's compensation benefits. The suit was prepared on December 8, 1967. On Saturday, December 9, 1967 Mr. Nini was killed in an unrelated accident.
The suit was filed December 11, 1967, on which day Nini's attorney was informed of his client's death.
Defense counsel wrote plaintiff requesting additional time to plead, and subsequently filed a motion for summary judgment on March 20, 1968, alleging the fact of Nini's death and the fact that no one had been substituted as the party plaintiff.
On October 11, 1968, hearing date on the motion for summary judgment, the court, without objection from defendants, granted Mrs. Corbett E. Nini, Jr. leave to substitute herself as party plaintiff in her capacity as provisional administratrix and natural tutrix of the minor children of the marriage.
On November 8, 1968 defendants filed an exception of prescription based on the fact that Mrs. Nini had not been substituted as a plaintiff until more than a year after the last compensation had been paid on January 16, 1967.
Finding that the amended petition related back to the filing of the suit, the trial judge overruled the exception of prescription. At the trial on the merits, there was judgment in favor of plaintiff for workmen's compensation benefits and for medical expenses.
The Court of Appeal affirmed, only amending the judgment to grant plaintiff legal interest on the amount recovered (258 So.2d 647 (1972)).
The defendants assign as error: the finding that the original suit, filed after the death of the plaintiff, interrupted prescription; the finding that allowing Mrs. Nini to be substituted as party plaintiff related back to the original petition; the fact that the Court of Appeal relied on the absence of the exception of no cause or right of action in determining the issues.
It is true that both the Court of Appeal and the trial court emphasized the absence of an exception of no cause of action, and held that the amended petition, in which the widow was substituted as a party plaintiff, related back to the original petition.
We do not consider the absence of an exception of no cause of action of any importance in determining the issues presented. However, we find no disagreement with the district court and the Court of Appeal in their finding that the amended petition "relates back" to the date of the filing of the original petition. C.C.P. 1153 provides:
See, Tate, Amendment of Pleadings in Louisiana, 43 Tul.L.Rev. 211 (1969),
When the defendant knows or should know, prior to the expiration of the prescriptive period, that legal demands are made upon him from the occurrence described in the petition filed, prescription is interrupted. The specific statutory provision concerning running against workmen's compensation claims is found in R.S. 23:1209:
Whether the one year period provided in R.S. 23:1209 is "peremptive" or "prescriptive,"
In Harris v. Traders and General Insurance Company, 200 La. 445, 8 So.2d 289, the objects of time limitations for bringing workmen's compensation actions were discussed, and the following language approved at 8 So.2d 289, 293:
Professor Malone states of Harris in Malone, supra, note 3, p. 493:
In Louisiana, the essence of interruption of prescription by suit has been notice
Such was the conclusion of the Court of Appeal for the First Circuit in Nettles v. Great American Insurance Company, La.App., 155 So.2d 87. The court held that the father's filing of a suit on behalf of his son for personal injuries interrupted prescription, even though the father had no capacity to sue because his son, a minor at the time of the accident, had reached twenty-one years of age before the suit was filed on his behalf. The court relied on cases from this court, and quoted with approval from 9 Tul.L.Rev. 285, 286 (1934):
Nettles relied in part on Flower v. O'Connor, 17 La. 213 (1841), where the court held that a suit on a note by a former partner in a defunct partnership interrupted prescription as to all those former partners and heirs of former partners to whom the cause of action belonged. As authority, the court quoted a selection from Pothier to the effect that when it is established that the defendant has been judicially notified, so as to acquire a sufficient knowledge of the rights which are sought to be enforced against him by a suit, there results a legal interruption in favor of those to whom the rights may belong. 8 Oeuvres de Pothier, Traite de la Prescription, Partie I, Chapitre II, No. 54 (1835). The court said:
Embodying the same fundamental idea is National Surety Corporation v. Standard Accident Insurance Company, 247 La. 905, 175 So.2d 263 (1965),
Because the elemental basis of legal interruption of liberative prescription in tort suits is informing the defendant of the legal demand, the argument that "a suit by a dead man is no suit" is specious.
That the plaintiff lacks the capacity to sue, for whatever reason, does not mean that no suit would exist. Only the application of a fiction could reduce a suit to nothing. Every essential for a legal interruption is present: the petition states a real and genuine (not spurious) cause of action, filed in a court of competent jurisdiction and proper venue, informing the defendant that judicial demand is made for workmen's compensation benefits arising from a particular accident.
For these reasons, the judgment of the Court of Appeal is affirmed, at defendants' cost.
BAILES, J., dissents and assigns reasons.
BAILES, Justice (dissenting).
I cannot agree with the majority. The filing of the petition after the death of Mr. Nini was nothing more than the filing of a paper. The attorney-client relationship had terminated on the death of Mr. Nini. There was no notice as contemplated by the law for the interruption of prescription. The right of action that existed in the decedent terminated at his demise and a new right of action perhaps was created in certain other persons.
C.C.P. Article 681 provides:
See C.C.P. Articles 683, 684, 692-695, and 700 for the exceptions, none of which are applicable here.
In 70 C.J.S. p. 686, the word person is defined as follows:
I respectfully dissent.