Israel v. SmithIsrael v. Smith
This suit was instituted by Berthaline Fontenot, identified as “wife and duly appointed provisional curatrix of Hampton Israel,” for damages to Israel alleged to have resulted from the negligence of Don V. Smith and Rufus Miller.
The trial сourt sustained an exception of prescription of one year1 filed on behаlf of the defendant, Rufus Miller, on the basis that the alleged accident occurred on May 11, 1971, and the suit was not filed until September 10, 1973.
As to the other defendant, Don V. Smith, there is no indication in thе record that he was ever served or that he appeared in the proceedings.
Only the petition, the exception and the answer of Rufus Miller appear in the rеcord, along with a short memorandum by the trial judge as to the sustaining of the exception.
For simplicity we refer to Israel as plaintiff, although he is represented by his wife.
The only issue on appeal is the contention by the plaintiff that his suit is not prescribed by reason of the doctrine of contra non valentum agere nulla currit praescriptio, which means “no prescription
The only information in the record pertaining to plaintiff‘s theory is paragraph 4 of the petition which reads as follows:
“This suit is not prescribed because Hampton Israel has been mentally incompetent and emmontionaly [sic] ill as a direct result of dеfendant‘s negligence, who is estopped from pleading (liberative prescriptiоn).”
We have been cited to no statutory or jurisprudential authority which supports the theory that if a defendant negligently caused a mental incompetence on the part of a plaintiff (or plaintiff‘s interdict or decedent) then prescription is interrupted.
On the contrary our study indicates that the doctrine of contra non valentum has been given very limited application in Louisiana. Cartwright v. Chrysler Corporation, 255 La. 598, 232 So.2d 285 (1970). In cases involving mental incapacity; whether feeblе mindedness (Perrodin v. Clement, 254 So.2d 704, La.App. 3 Cir. 1971, writ denied 260 La. 604, 256 So.2d 642, 1972); irrationality (Gaspard v. Liberty Mutual Insurance Company, 243 So.2d 839, La.App. 3 Cir. 1971, writ denied 258 La. 357, 246 So.2d 680); or institutionalization (Buvens v. Buvens, 286 So.2d 144, La.App. 3 Cir. 1973), there is no interruption оf prescription until there is legal interdiction, that is, a formal placing of the person under interdiction.
The jurisprudence requiring interdiction accords with Civil Code articles 3522 and 3554 which provide:
Art. 3522. Minors and interdicts
Art. 3522. Minors and persons under interdiction can not be prescribed against, except in the cases provided by law.
Art. 3554. Suspension of liberative prescription as to minors and interdicts; exceptions
Art. 3554. Prescription does not run against minors and persons under interdiction, except in the cases specified by law.
In the present case the record does not reflect the interdiction of Hampton Israel. According to the briefs, however, it appears undisputed that he was interdicted September 28, 1973, two days after suit was filed on September 26, 1973.
The doctrine of contra non valentum does not apply and the trial judge correctly sustained the plea of prescription.
Affirmed.
ON REHEARING
WATSON, Judge.
On application for rehearing by Don V. Smith, our attеntion was directed to the fact that an answer and an exception of prescription were filed in the trial court on behalf of Smith, although these pleadings did not apрear in the record on appeal. Therefore, our statement in the original opinion that there was no indication in the record that Smith was ever served or that he аppeared in these proceedings was correct, as far as the recоrd filed in this court reflected. We failed to note that Smith‘s counsel filed an excellent brief on appeal and also appeared for purposes of oral аrgument.
All parties have now stipulated that the copies of the answer and the exсeption of prescription filed by Smith and attached to the stipulation may be received in the record.
For reasons expressed in the original opinion, wе find that the exception of prescription
Costs on appeal are taxed against plaintiff-appellant.
Affirmed.
Notes
LSA-C.C. art. 3536 provides in part:
Art. 3536. Other actions prescribed by one year
Art. 3536. The following actions are also prescribed by one year:
That for injurious words, whether verbal or written, and that for damages caused by animals, or resulting from offenses or quasi offenses.