Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


May 8, 1959


The opinion of the court was delivered by: John E. Miller, Chief Judge.

The complaint herein was filed originally in the Circuit Court of Miller County, Arkansas, on April 14, 1959, and in due course removed by the defendant to this court. The plaintiff is a resident of Texarkana, Texas, and the defendant is a corporation organized under the laws of Louisiana and is engaged in business in Arkansas as a common carrier of passengers for hire.

The complaint alleged that the plaintiff duly paid her fare for travel on the defendant's bus and rode thereon from Texarkana to Shreveport, Louisiana; that in alighting upon her arrival in Shreveport on January 4, 1958, she slipped and fell, suffering various personal injuries; and that the defendant was negligent in failing to provide a safe place to disembark or an attendant to assist the plaintiff in alighting from the bus.

On April 30, 1959, the defendant filed its motion to dismiss upon the ground that the statute of limitations of Louisiana, which is alleged to govern, is a bar to the claim, and also upon the ground that the plaintiff had heretofore executed a release discharging the defendant from any claims or actions by reason of the alleged injuries and claims.

It is the defendant's position that the plaintiff's right of action, if any, accrued in Louisiana; that Louisiana gives a statutory but no "common law" right of action for personal injuries, that State being governed by the Civil Code and not by common law. There is also a statutory period of limitation or "prescription" which bars either the plaintiff's remedy or her cause of action after one year. Conceding that statutes of limitations are ordinarily "statutes of repose" which are procedural and bar the remedy only, the defendant argues that in this case, since the Code gives the right of action and then bars it after a one-year period, the bar extinguishes the cause of action itself and is substantive. Therefore, the defendant contends the limitation in Louisiana applies as the substantive law of the place of the tort, if any, rather than the more generous limitation period applicable procedurally in the law of this forum.

The plaintiff does not deny that the period is limited to one year by Louisiana law, but contends that this is a "statute of repose" which merely bars the remedy, that it is procedural only, and that, therefore, the procedural limitation of the forum applies.

Both parties are in agreement that if the Louisiana limitation "extinguishes" the cause of action (rather than merely barring the remedy), that law will apply and bar this suit. The rule is stated in Leflar, Conflict of Laws, at pages 199-200:

    "Statutes of limitations are generally treated as
  procedural so that the statute of the forum
  governs * *. Where the extrastate right sued on is,
  however, based upon a statute, and the limitation
  period is set by the very statute which creates the
  right itself, as is usually the case with the Death
  Acts, the forum will respect the limitation period
  set by the law of the place of the tort."

Goodrich, Conflict of Laws, at page 267 states the same rule as follows:

The question immediately before the court, therefore, is whether the Louisiana period of limitations is one which is procedural and bars the remedy only, or whether, as defendant urges, it is substantive and extinguishes the cause of action.

It appears that personal injury actions in Louisiana are based wholly upon Article 2315, LSA-Civil Code of Louisiana, and no rights are derived except from this statute. It provides in part:

    "Every act whatever of man that causes damage to
  another, obliges him by whose fault it happened to
  repair it."

This statute is read together with Article 3536, providing for a one-year prescription or limitation. See Page v. Cameron Iron Works, D.C., 155 F. Supp. 283, at page 286, and cases cited, reversed on other grounds in Page v. Cameron Iron Works, 5 Cir., 1958, 259 F.2d 420. There is no contention that Article 3536 is inapplicable.

Statutes of limitation under Louisiana law are denominated either as statutes of "prescription" or of "peremption." The statute, if one of prescription, bars the remedy merely, but does not extinguish the cause of action and must be specially pleaded. If the statute is one of peremption, the cause of action is extinguished. In Succession of ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.