#### John W. WARD, Jr., et al. v. DOUGLAS PUBLIC SERVICE CORP.

No. 8426.

Court of Appeal of Louisiana, Fourth Circuit.

Nov. 10, 1977.

On Rehearing April 6, 1979.

Sessions, Fishman, Rosenson, Snellings & Boisfontaine, New Orleans (Robert S. Black, New Orleans), Attorney-Curator Ad Hoc, for plaintiff-appellant.

Glenn L. Morgan, New Orleans, for plaintiffs-appellants.

Law office of Bruce J. Borrello, Stephen L. Huber, George J. Riehaud, A. Miles Pratt, III, Denise M. D’Aunoy, Metairie, for defendant-appellee.

Before LEMMON, GULOTTA and SCHOTT, JJ.

SCHOTT, Judge.

Plaintiffs have appealed from a judgment maintaining an exception of prescription and dismissing their suit.

In their original petition filed on Wednesday, August 13,1975, plaintiffs alleged that the automobile accident which gave rise to their claim occurred on August 12, 1974. *724After being met with an exception of prescription they amended their petition to include the following:

> “VIII

> Agents of defendant Douglas’s insurer acting on behalf of Douglas and the insurer acknowledged the obligation to make plaintiffs whole several times, even into 1975, were aware of plaintiff John Ward’s medical problems, assured him that all expenses were to be taken care of and in fact paid for some expenses. By such actions prescription was interrupted as to all defendants.”

The trial on the exception was submitted on the record and the argument and memo-randa of counsel. The record contains written interrogatories addressed by the parties to each other with their answers, but no further evidence was taken at the trial.

At the time of the trial the use of the interrogatories and answers was controlled by LSA-C.C.P. Arts. 1492 and 1428, as they read prior to the passage of Act 574 of 1976. Defendant’s answer to plaintiffs’ interrogatories may be considered by us pursuant to Art. 1428(2). However, the record does not disclose that any of the circumstances contained in Art. 1428(3) were present so as to authorize plaintiffs to offer their answers to the interrogatories as evidence in their behalf. Neither does the record suggest that they attempted to offer them as evidence in the first instance. Finally, there is no stipulation between the parties with respect to plaintiffs’ answer to the interrogatories.

In answer to plaintiffs’ interrogatories defendant Douglas Public Service Corporation stated as follows: Liberty Mutual Insurance Company was its liability insurer. A collision between its truck and plaintiff’s automobile occurred on August 12, 1974, and Liberty Mutual was notified the following day. On August 13 Liberty Mutual first contacted plaintiff. It caused an appraisal of plaintiff’s automobile to be made on August 14 and paid property damage of $161.58 on August 19, 1974.

Plaintiffs, whose claim prescribed on the face of their petition, had the burden to prove that prescription was interrupted. *Wooden v. Hartford Insurance Company,*335 So.2d 742 (La.App. 2nd Cir. 1976); *Tassin*v. *Allstate Insurance Company,*310 So.2d 680 (La.App. 4th Cir. 1975) writs refused La., 313 So.2d 836. The evidence properly before us including defendant’s answer summarized above is not sufficient proof of plaintiffs’ case.

Nevertheless, since plaintiffs have referred to their answer to defendants’ interrogatories and insisted that these facts establish an interruption of prescription, in the interest of making a full disposition of the issues we will consider them.

In these answers plaintiffs stated: Several times in 1974 a Miss Beaver said the insurance company would pay for the automobile repairs and medical expenses; Miss Beaver and others told plaintiff he didn’t need a lawyer and the insurance company would pay the bills no matter how long it took; the insurance company made one payment on the car; plaintiff talked to an attorney around October, 1974, but after Miss Beaver said they would pay for everything and that he didn’t need an attorney he thought it would be “silly” to get one.

On the basis of these answers plaintiffs contend that there was an acknowledgment of the obligation under C.C. Art. 3520 or that the *maxim contra non valentem agere nulla currit praescriptio*applies.

In the *Wooden*and *Tassin*cases it was held that an acknowledgment sufficient to interrupt prescription must be a clear, concise and express recognition of the right which the creditor claims. In the *Tassin*case is a lengthy discussion of the doctrine of *contra non valentem*which provides an insight into the quality of the evidence necessary to support the application of the doctrine.

Even if the answers to the interrogatories were properly before us they are self serving, they were not made with the benefit of cross examination, they are vague and they are not descriptive of all the circumstances which accompanied these contacts between plaintiff and the representative of defendant’s insurer.

*725We have concluded that plaintiffs have not borne their burden of proof to defeat prescription.

Accordingly, the judgment is affirmed at plaintiffs’ cost.

AFFIRMED.

LEMMON, J., dissents and assigns reasons.

LEMMON, Judge,

dissenting and assigning reasons.

The legal issue in this appeal is whether an unconditional payment, as debtor, of part of the damages caused by a tort constitutes a tacit acknowledgment of the debt by the person in favor of whom prescription runs and serves to interrupt prescription. I vote in the affirmative. C.C. art. 3520, 3551.

The undisputed payment in this case by defendant’s liability insurer was five days after the insurer’s appraisal of the automobile damage caused by defendant’s tort, and this payment could not reasonably be construed as anything but an *unconditional*payment by a debtor of part of the debt.1 If plaintiff had been holding a promissory note executed by defendant in the amount of the tort-caused damages, there would be no argument that payment on the note of the amount attributable to property damage interrupted prescription as to the entire note. I see no valid basis for distinction, *for purposes of interruption of prescription,*between payment on a liquidated debt and payment on an unliquidated debt.2 2 Civil Law Translations — Aubry & Rau, Property, § 215, no. 304 (La.St.L.Inst.Trans.1966); 2 Planiol, Treatise on the Civil Law, § 665 et seq. (La.St.L.Inst.Trans.1959); 5 Civil Law Translations — Baudry-LaCantinerie & Tissier, Prescription, §§ 476, 527-535 (esp. 531), 647.

On the problem of evidence plaintiff’s amended petition alleged, among other things, interruption of prescription by payment of part of the damages. Defendant, while denying this allegation in its answer, admitted in answers to interrogatories that its insurer appraised and paid the automobile damage. While technically the record does not show that the answers to interrogatories were introduced into evidence, I would not affirm an otherwise incorrect judgment of dismissal on the basis of this technical deficiency. I would at worst remand to allow defendant to rebut this evidence.

1

. Obviously, the tortfeasor’s debt for the property damage could not exist separately from the debt for all of the tort-caused damages.

2

. There is a difference, perhaps, for purposes of determining whether payment constitutes an admission conclusive of liability, but that is not at issue in this appeal from a judgment maintaining an exception of prescription prior to trial on the merits.

ON REHEARING

PER CURIAM.

We granted a rehearing in this case because it came to our attention that appellant John W. Ward, Jr. had died. His legal representative did not appear voluntarily and the identity and residency of any such legal representative was not known to the court and was not furnished by the attorney who formerly represented the deceased appellant and who still represents Mrs. Ward.

Accordingly, on October 27, 1978, we ordered the publication of a summons pursuant to Rule XVIII, § 3, of the Uniform Rules-Courts of Appeal. Following the publication of this summons on November 1, 20, and December 8, 1978, in the New Orleans States-Item and on November 2, 21, and December 9, 1978, in the New Orleans Times-Picayune, and having gotten no response from the legal representative of the deceased John W. Ward, Jr., on January 3, 1979, we appointed a Curator Ad Hoc to represent the unknown legal representative of the deceased John W. Ward, Jr. against whom further proceedings herein could be contradictorily conducted.

On March 28, 1979, the Curator made a return to this court in which he outlined his *726efforts to contact the representative of the deceased appellant and reported that he was unable to make such contact.

We are satisfied that every effort has been made to locate a representative of the deceased appellant, and having reconsidered our opinion of November 10, 1977, we reinstate that opinion, with notice of our action to be given to the attorney for Mrs. Ward as well as the Curator Ad Hoc for John W. Ward, Jr.

ORIGINAL OPINION REINSTATED.