#### HARRIS v. TRADERS & GENERAL INS. CO. et al.

No. 2264.

Court of Appeal of Louisiana. First Circuit.

Oct. 8, 1941.

Rehearing Denied Nov. 19, 1941.

Writ of Error Granted Jan. 5, 1942.

Fred G. Benton, of Baton Rouge, and Jones & Jones, of Marshall, Tex., for appellant.

Taylor, Porter, Brooks & Fuller, of Baton Rouge, for appellees.

DORE, Judge.

This case presents purely a question of law. It involves the interpretation of Sections 31 and 18 of Act 20 of 1914, with amendments, (our Workmen’s Compensation Statute). These sections deal with the time limit and the procedure for the bring- ■ ing of an action under the Act. Section 31 provides 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."*Act No. 85 of 1926. (Italics ours.) With reference to the procedure it is provided under Section 18 (Section 17 not being involved in this case) that the action *25must be brought in a district court which would have jurisdiction in a civil case or the district court of the Parish in which the injury was done or the accident occurred or in any court at the domicile, or at the principal place of business, of the defendant having jurisdiction of the amount of dispute, at the option of the plaintiff.

It appears that the plaintiff was employed in Caddo Parish, Louisiana, in the motor transportation business, by L. T. Campbell, a resident of Gregg County, Texas, and that the said Campbell carried workmen’s compensation insurance under the terms of the Louisiana statute with the defendant insurance company, a corporation domiciled and having its principal place of business out of the State of Louisiana, but doing business in the State of Louisiana.

It further appears that plaintiff was injured in Cass County, Texas, on or about November 27, 1936, while in the employ of the defendant, L. T. Campbell, for which injuries he is now seeking compensation.

It further appears that the plaintiff first filed his claim for compensation with the Industrial Accident Board of Texas, and, upon being denied relief by that agency, on October 13, 1937, filed suit against the legal representatives of Campbell, he having died in the meantime, and against his insurer, in the District Court of Gregg County, Texas, praying for compensation under the terms of the Louisiana Workmen’s Compensation Law. The defendants filed a general demurrer to this suit, based, in the main if not entirely, on lack of jurisdiction of the Texas court. The demurrer was sustained and plaintiff’s suit was dismissed on January IS, 1938.

After the dismissal of his suit by the District Court of Gregg County, Texas, plaintiff filed suit, on February IS, 1938, in the District Court of. Caddo Parish, Louisiana, obviously with the hope of obtaining personal service on the legal representatives of L. T. Campbell, which hope was never realized. The insurance company was cited through the Secretary of State of Louisiana, and made a special appearance to enter an exception of no jurisdiction ratione personae, which exception was properly sustained by the Caddo Parish court.

On March 6, 1940, while the suit was still pending in Caddo Parish, plaintiff filed his suit in the District Court of East Baton Rouge Parish, and was there met (1) with an exception of lis pendens based on pend-ency of the action in Caddo Parish; (2) with an exception of no jurisdiction ratione personae and ratione materiae; (3) an exception of vagueness on the ground that plaintiff’s petition failed to state whether the accident occurred in Louisiana or in Texas; and (4) a plea of one and two years’ peremption.

The plea of lis pendens was abandoned upon the dismissal of the suit in Caddo Parish. The exception to the jurisdiction was also dismissed, on the ground that the insurance company could be sued in East Baton Rouge Parish, the domicile of the Secretary of State, its process agent. The exception of vagueness was sustained and plaintiff given ten days in which tó amend his petition, and it was then agreed between the parties that the accident occurred in Cass County, Texas, in satisfaction of the plea of vagueness. The plea of peremption was sustained, and it is from the judgment sustaining this plea that plaintiff appeals, and consequently the only question before us is whether or not plaintiff’s suit was perempted.

Since the suit in East Baton Rouge Parish was not filed until after two years from the date of dismissal of plaintiff’s suit by the' District Court of Gregg County, Texas, it is unnecessary for us to discuss the legal effects of the filing of plaintiff’s suit in Gregg County, Texas, unless we can find that the Caddo Parish suit tolled the peremption statute. By filing his suit in Caddo Parish plaintiff knowingly took the chances of securing personal service on the defendants, and should that have happened undoubtedly the peremption statute would have been tolled, but since personal service was not obtained in the Caddo Parish suit it cannot be said that that suit had any effect on the case, since the Caddo Parish Court never had jurisdiction ratione personae of either defendant. In other words, it is our opinion that the Caddo Parish suit had no more effect on the peremption statute than a suit in any other court having *only*potential jurisdiction of the case.

As to the suit in East Baton Rouge Parish, we are of the opinion that it was properly filed and that the court had jurisdiction, but because more than two years had expired since the dismissal of the suit by the District Court of Gregg County, Texas, the cause of action was *26perempted under the terms of the statute. We fully realize that the compensation law was written for the benefit principally of the employee and should be liberally interpreted, and we wish that we could find some reasonable theory under which plaintiff’s case could be tried on its merits.

Plaintiff, in his original brief, contends that by virtue of Act 39 of 1932, the filing of his action in Caddo Parish interrupted the period of peremption. Yet in his supplementary brief, he admits that Act 39 of 1932 has no application to the case at bar, but seriously contends that Civil Code, Article 3518 does apply, and Section 31 of the compensation statute is a statute of prescription rather than of peremption.

In several cases in which Section 31 was involved, the courts of this State, including ours, have indiscriminately referred to the limitation period as therein contained as a plea of prescription or per-emption. However, we feel that this question has been finally put to rest by the decision of the Supreme Court in the case of Brister v. Wray Dickinson Co., Inc., 183 La. 562, 164 So. 415, wherein that court drew the distinction between the two terms and left but little doubt that the limitation provided in said Section 31 was one of peremption, and not of prescription.

The several courts of this State had under consideration Civil Code, Article 2315 and other similar articles or statutes of the State dealing with peremptive periods. They, in those decisions dealing with peremptive period, decided that Articles of the code dealing with “the Causes Which Interrupt Prescription” and “the Causes Which Suspend the Course of Prescription” (3516-3527), do not apply to peremptive periods. See Matthews v. Kansas City S. Ry. Co., 10 La.App. 382, 120 So. 907 and the cases therein cited and discussed. We are therefore of the opinion that Article 3518 has absolutely no application to the case at bar.

As previously stated, it is our conclusion that the peremptive period was not suspended by the filing of the suit in Caddo Parish, and since more than two years intervened between the dismissal of the suit in the Texas court and the filing of the suit in East Baton Rouge Parish, • we fully agree with the trial judge that plaintiff’s cause of action is perempted, regardless of the effect of the Texas suit, and accordingly the judgment appealed from is affirmed.

OTT, Judge

(dissenting).

In my opinion, the plaintiff has sufficiently complied with Section 18 of the Compensation Statute (Act 20 of 1914, as amended) so as to keep alive his claim for compensation up to the time he filed the present suit against the insurance company in East Baton Rouge Parish, although more than a year had elapsed from the date of the accident to the date of filing this suit. Whether the limitation period of one year fixed by Section 31 of the Act for filing the suit is to be considered a statute of peremption or one of prescription, in either case, the plaintiff has done all that could be reasonably required of him under Section 18 to have his claim adjudicated by a court of competent jurisdiction.

For the purpose of this suit and in order that plaintiff’s claim for compensation should not be forever barred under Section 31, it is necessary for him to show that within one year of the accident he *begwi proceedings*before the judge of the district court which would have jurisdiction in a civil case, or before a judge of the district court in the parish where the accident occurred, or before any court at the domicile of the defendant, having jurisdiction of the amount in dispute.

The suit filed by plaintiff in Gregg County, Texas, was filed at the domicile of the employer, or his representatives, and within a year after the accident. If that court had jurisdiction of the amount in dispute, obviously, under the p**Lin provisions of the statute, he *began a proceeding*within the year as is required by the statute to keep his claim alive so long as that suit was pending. Plaintiff alleges in his petition in this suit that the district court of Gregg County, Texas, was a court having jurisdiction over the parties and the subject matter, and that his cause was dismissed by said court over his objection. It was therefore incumbent on defendant in this suit to allege and show that the suit in the Texas court was dismissed for lack of jurisdiction over the parties and the subject matter involved in that suit. This the defendant has not done.

The briefs inform us that the case was dismissed by the Texas court on the authority of Johnson v. Employers Liability Assurance Corporation, Tex.Civ.App., 99 S.W.2d 979, and Federal Underwriters Exchange v. Doyle, Tex.Civ.App., 110 S.W. 2d 618, Id., Tex.Civ.App., 111 S.W.2d 742. *27But it is clear from a reading of those cases that the Texas court declined to entertain jurisdiction of a compensation case under the Louisiana law, not because the court did not have power and authority to adjudicate the claim but because as a matter of policy it declined to do so under the state of facts shown in those cases. In the first of those cases the accident happened in Louisiana, the employer was a resident of Louisiana, and the work was being performed in Louisiana, and in the other case the employee was working in Louisiana at the time of his injury. In this case, however, as is now conceded, the accident occurred in Texas, and we have no showing in the record as to whether or not the Texas court considered this difference in the factual situation in dismissing plaintiff’s suit in that state. In any event, it is obvious that the Texas court did not retain jurisdiction because of the policy of the courts of that state as announced in the two cited cases and not because it had no power to render a valid judgment. This is indicated in the syllabus of the Johnson case reading as follows:

> “Policy of each state decides whether and to what extent its courts will entertain jurisdiction of transitory actions arising in other jurisdictions under their peculiar statutes.”

Immediately after plaintiff’s suit was dismissed by the Texas court, he filed a suit on the same claim for compensation in the District Court of Caddo Parish against his employer and his insurer, the parish in which the contract of employment was entered into and in which he was alternately working for his Texas employer. The insurance company, the defendant in the present suit, appeared and filed an exception to the jurisdiction of the district court ratione personae. Obviously, if service of citation could have been made on the employer, or his representatives, in Caddo Parish, the district court of that parish would have had jurisdiction to adjudicate the claim and to render a valid judgment. So it was not because of lack of jurisdiction in that court to adjudicate the claim that the case was dismissed there, but because citation could not be served on the employer or his representatives. In other words, if plaintiff could have secured personal service on the employer in this state (as he had a right to assume that he would be able to do) the court of that parish would have had the right to adjudicate his claim, and the mere fact that citation could not be served on the employer does not alter the fact that plaintiff filed a suit in a court of competent jurisdiction. For instance, a compensation claimant might file his suit within the year in the parish where the accident occurred, and because no service could be made on the employer and for that reason could not have his case heard, certainly would not mean that the claimant had hot filed his suit in a court of competent jurisdiction and the period of limitation certainly would not run against him while he was trying to get service on his employér.

I therefore conclude that plaintiff has begun proceedings in courts of competent jurisdiction which prevented the period of limitation from running against him pending the suits. In the cases cited by defendant where plaintiff’s claim was held to have been barred by the period of limitation he did not file any kind of suit in a court of competent jurisdiction within the period of limitation. In my opinion, the purpose of the requirement that a suit be brought by the claimant within one year after the accident under the penalty of barring his recovery is of a three fold nature; (1) to enable the employer to determine when his potential liability for an accident would cease; (2) as a matter of public policy to prevent suits based on stale claims where the evidence might be destroyed or difficult to produce; (3) to fix a statute of repose giving rise to a conclusive presumption of waiver of his claim on the part of an employee where he fails to bring his suit within the fixed period.

In this suit, none of the foregoing reasons for barring plaintiff’s claim on account of the lapse of the peremptive period exists, but on the contrary, plaintiff has not only continued to press his claim, but he has informed both his employer and the insurance company in the Texas court by proper citation as to the amount and nature of his claim, and in the second suit in Caddo Parish, the insurance company was again served with citation and informed of the amount and nature of his claim. Under Sections 23 and 24 of the Compensation Act, the insurer of the employer is primarily liable with the employer for the payment of compensation and a proceeding brought against either in a competent court would prevent the running of the prescriptive or peremptive period. Moreover the insurer can be sued in any *28court having jurisdiction over the employer and the insurer is limited to defenses which may be made by the employer. It therefore seems to me that the defendant insurance company is in no position to prevent plaintiff from having his claim heard and adjudicated as the insurance company has been sued and informed of the amount and nature of plaintiff’s claim in three courts which had jurisdiction to pass on the claim if in the first suit the Texas court had seen fit to entertain jurisdiction and in the second suit in Caddo Parish, if service could have been made on the employer or his representatives; and, admittedly, the District Court of East Baton Rouge Parish has jurisdiction to adjudicate the matter.

I therefore respectfully dissent.