185 La. 948

#### CALLENDER v. MARKS.

No. 33937.

Supreme Court of Louisiana.

Nov. 4, 1936.

Rehearing Denied Nov. 30, 1936.

Dickson *&*Denny, of Shreveport, for relator.

Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, for respondent.

HIGGINS, Justice.

Plaintiff brought this action ex delicto under the provisions of article 2315 of the. Revised Civil Code to recover damages said to have been sustained by his property, as a result of the collapse of a reservoir alleged to have been negligently construct*87ed by the defendant. The defendant pleaded prescription of one year, based upon articles 3S36 and 3537 of the Revised Civil Code. The trial judge sustained the exceptions and dismissed the suit, and the plaintiff appealed.

.The Court of Appeal affirmed the judgment of the lower court on the ground that, as the previous suit, based upon the same claim, did not state a cause of action and was dismissed by the trial judge, prescription had not been interrupted, and that the present suit was filed too late, or more than one year after the alleged damage occurred. A rehearing was refused, and, upon the plaintiff’s application, we granted a writ of certiorari, for the purpose of considering the case.

The Court of Appeal, in its opinion, stated the case as follows:

> “This suit involves the demand for damages which was excluded in the companion case, bearing the same title, this day decided by us. 166 So. 891. The petition in that suit lacked sufficient allegations of fact to show negligence and fault on the part of defendant in the construction of the proposed reservoir, and, by reason of that, an exception of no cause of action was • sustained resulting in the rejection of the demand for damages.

> “The petition herein, which was filed October 11, 1933, contains allegations, regarding the nature, kind, and amount of damages claimed, identical with those in the other case. It differs only to the extent that here allegations respecting defendant’s fault and negligence are made and those relating to the cancellation of the lien are omitted.

> “Before answering, defendant filed pleas of prescription of one year and of res judicata and an exception of no cause or right of action, all of which were overruled after respective hearings.

> “Answer was filed, and, by agreement of counsel, this and the other case were consolidated for the purpose of trial.

> “After trial, judgment was -rendered in this cause in plaintiff’s favor for $1,200.

> “Defendant then filed a motion for a rehearing, which was granted. The case was again submitted, and the trial court rendered and signed a judgment sustaining defendant’s plea of prescription of one year and dismissing plaintiff’s suit at his cost. From this judgment plaintiff has appealed.”

Counsel for appellee, in their brief, make the following statement:

> “The point at issue herein is whether or not the timely filing by plaintiff of his first suit, wherein he claimed damages of the defendant in the identical amount that he later claimed in the second suit, interrupted the running of prescription. If it did, then plaintiff’s second suit was timely filed and defendant’s plea of prescription of one year should not have been sustained. If it did not, then plaintiff’s second suit was filed too late and defendant’s plea of prescription of one year was properly sustained and plaintiff’s suit was properly dismissed.”

The law is clear that where a petition states a cause of action and is filed within the prescriptive period, prescription is interrupted by the filing or instituting of the suit. Rev.Civ.Code, arts. 3516, 3518, and Act No. 39 of 1932.

The jurisprudence is well established that where a petition imperfectly states a cause of action due to insufficiency of allegations, but informs the defendant of the nature of the claim or demand, an amended petition supplying the deficiency may be filed even after an exception of vagueness or an exception of no right or cause of action has been sustained, and after the prescriptive period has elapsed, because the amendment does not set up a new, different, or separate cause of action, but merely clarifies and amplifies the allegations of the original petition or de-" mand which interrupted prescription. Reeves v. Globe Indemnity Co. of New York, 185 La. 42, 168 So. 488; McCoy v. Arkansas Natural Gas Co. et al., 184 La. 101, 165 So. 632; National Park Bank v. Concordia Land & Timber Co., 159 La. 86, 105 So. 234—240; James v. City of New Orleans, 151 La. 480, 91 So. 846-848; Missouri, etc., R. R. Co. v. Wulf, 226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. 355, Ann.Cas. 1914B, 134.

Where an exception of no right or cause of action is sustained because the petition does not state any right or cause of action whatsoever, prescription is not interrupted by the filing thereof, and the amended petition, or the subsequent suit, which does set forth a cause of action or another demand based on different grounds than those contained in the original petition, does not date back to the filing of the original petition, and, if filed after the prescriptive period has elapsed, *88will be dismissed upon a plea of prescription. National Park Bank v. Concordia Land & Timber Co., supra; De Bouchel v. Koss Const. Co., Inc., et al., 177 La. 841, 149 So. 496; Union Pacific R. Co. v. Wyler, 158 U.S. 285, 15 S.Ct. 877, 39 L.Ed. 983; Sicard v. Davis, 31 U.S. (6 Pet.) 124, 8 L.Ed. 342.

In the instant case, as shown by the finding of the Court of Appeal and. by the record, the exception of no right or cause of action filed in the original suit was sustained, because of insufficient allegations of fact in the petition. The plaintiff, therefore, filed a petition or demand which imperfectly stated his cause of action and was entitled to amend or file another suit, because the dismissing of the petition on the exception of no right or cause of action was equivalent to a non-suit. McCoy v. Arkansas Natural Gas Co. et al., supra.

The fact that the plaintiff’s petition in the original suit was defective only because he failed to allege sufficient facts, which he could have alleged, is shown by the petition in the second suit and the overruling of the exception of no cause of action filed thereto by the defendant and the judgment in his favor on the merits. Plaintiff in the second suit did not assert a new, different, or separate cause of action. The cause of action attempted to be stated, or the demand made in the original, as well as a second petition, is one and the same. It is identical. Defendant was fully apprised of the nature of the claim of the plaintiff and what was being demanded of him. Therefore, it is our opinion that prescription was interrupted.

The above line of reasoning and jurisprudence is in accord with the cases which hold that a citation, though insufficient to support a judgment, will interrupt prescription if it notifies the defendant of the grounds of the plaintiff’s claim and that he is asserting that claim. Vernon v. Illinois C. R. Co., 154 La. 370, 97 So. 493; Succession of Saunders, 37 La.Ann. 769-772.

Counsel for the defendant has referred us to the case of Chennault v. Stovall et al., 160 So. 146, decided by the Court of Appeal, Second Circuit. It is sufficient to say that, if the opinion of the Court of Appeal in that case can be interpreted and construed contrary to the holding of the above authorities and conclusions, it cannot stand.

For the reasons assigned, it is ordered, adjudged, and decreed that the judgment of the Court of Appeal is annulled, avoided, and set 'aside, the plea of prescription is overruled, and the case is remanded to the Court of Appeal for further proceedings consistent with the views herein expressed; defendant to pay all costs.

BRUNOT, J., dissents.

ODOM, Justice

(concurring).

I concur in the decree in this case because from what the Court of Appeal says in its opinion I think plaintiff’s petition in the first suit did set out a cause of action. That suit was dismissed because the petition “lacked sufficient allegations of fact to show negligence and fault on the part of defendant.” From this I infer that plaintiff in the first suit alleged negligence and fault on the part of the defendant, but the facts set out to show negligence and fault were not sufficient to support that allegation. That suit, I think, interrupted prescription and could have been amended after the lapse of one. year for the purpose of setting out facts in support of the allegation of negligence and fault.

O’NIELL, Chief Justice

(concurring in the decree).

I concur in the ruling that prescription was interrupted in this instance, by the filing of the original suit. But I have some misgiving lest the rule on the subject will be rendered too indefinite by the statement: “Where an exception of no right or cause of action is sustained because the petition does not state any right or cause of action whatsoever, prescription is not interrupted by the filing thereof, and the amended petition, or the subsequent suit, which does set forth a cause of action, or another demand based on different grounds than those contained in the original petition, does not date back to the filing of the original petition, and, if filed after the prescriptive period has elapsed, will be dismissed upon a plea of prescription.” Of course, if the petition, in any case, shows affirmatively that the plaintiff has no cause or right of action — instead of merely failing to show that he has a cause of action — a judgment sustaining *89a demurrer to the suit puts the matter forever at rest, as res judicata. Hence the question of interruption of prescription is not apt to arise in such cases. But a judgment dismissing a suit on an exception of no cause of action, where the petition merely lacks an essential allegation, of a fact which might nevertheless exist, the judgment is only a judgment of nonsuit. Laenger v. Laenger, 138 La. 532, 70 So. 501. The filing of the original petition, in such a case, disclosing the nature of the plaintiff’s claim, has the effect of interrupting prescription. An apt illustration of the rule was given in a very recent case. Reeves v. Globe Indemnity Company of New York, 185 La. 42, 168 So. 488. There the plaintiff sued the liability insurer alone for damages for personal injuries resulting from an automobile accident, but did not charge any negligence whatever on the part of the owner or driver of the automobile. The allegation was simply that an accident had occurred, within the purview of the terms of the policy. The defendant insurer filed an exception of no cause of action. Before the exception was disposed of, the plaintiff filed a supplemental petition alleging negligence on the part of the owner and the driver of the car. The supplemental petition was filed more than a year after the accident had occurred. The defendant, therefore, pleaded the prescription of one year. It was held that the filing of the original petition had interrupted prescription, even though no cause of action was alleged.

It appears to me that the cases cited in the majority opinion in this case, as being instances where the original petition did not state any right or cause of action whatsoever, have features which distinguish them from the present case, and from Reeves v. Globe Indemnity Company of New York. For example, in National Park Bank v. Concordia Land & Timber Co., 159 La. 86, 105 So. 234, the proceeding which the plaintiff contended had interrupted prescription was a garnishment proceeding, brought in an attempt to seize an unliquidated claim for damages. Even in that case I thought (159 La. 86, 109, 105 So. 234, 242) that the garnishment proceeding had interrupted the prescription. In the case of De Bouchel v. Koss Construction Company et al., 177 La. 841, 149 So. 496, the plaintiff sued for damages on two causes of action, one being for false imprisonment, and the other for malicious prosecution. The allegations of the petition disclosed a cause of action against one of the defendants, but not against the Koss Construction Company, for damages for malicious prosecution; and, on an exception of no cause of action, the suit against the Koss Construction Company, so far as it was a suit for malicious prosecution, was dismissed. Thereafter the plaintiff attempted, by supplemental petition, to sue the Koss Construction Company for damages for malicious prosecution, as well as for the false imprisonment. The supplemental petition was filed more than a year after the plaintiff had been acquitted of the charge for which he had been imprisoned and prosecuted. It was held that the original petition did not interrupt prescription so far as the claim against the Koss Construction Company for damages for malicious prosecution was concerned. In that case the court treated the demand for damages for false imprisonment and the demand for damages for malicious prosecution as if they were two separate suits. On that theory the ruling on the plea of prescription was correct. In Union Pacific R. R. Company v. Wyler, 158 U.S. 285, 15 S.Ct. 877, 39 L.Ed. 983, the plaintiff, by supplemental petition, stated a cause of action entirely different from the cause of action which he had stated in his original petition, the fault charged against the railroad company being entirely different. It was held, therefore, that the original petition did not interrupt prescription against the cause of action set forth in the supplemental petition. The case of Sicard v. Davis, 31 U.S. (6 Pet.) 124, 8 L.Ed. 342, seems to have been decided on its merits, and does not impress me as being appropriate to the proposition now under consideration. The three appropriate decisions cited in the majority opinion, as I have pointed out, are among the exceptions, which prove the rule.