No. 89-CA-71 | La. Ct. App. | Jun 7, 1989
The plaintiff appeals dismissal of her suit on an exception of prescription. We affirm.
Pearl Warren alleges she was injured in a fall that occurred on May 10, 1987, between 2:00 p.m. and 3:00 p.m. She filed suit on May 11, 1988 at 8:40 a.m. Her counsel’s novel argument is that the one year prescription period set out in LSA-C.C. art. 3492 began at 2:00 p.m. on May 10, 1987 and did not expire until 2:00 p.m. on May 11, 1988. He contends that the petition filed several hours before 2:00 p.m. was therefore timely. He cites no authority for computing prescription time in hours and our research has revealed none.
As far back as 1855, the jurisprudence held that the year is calculated “from and after the day of the commission of the tortious act,” making no mention of the time of day, only the date. Wartelle v. King, 10 La. Ann. 655" date_filed="1855-09-15" court="La." case_name="Wartelle v. King">10 La.Ann. 655 (La.1855). More recently, in Delahoussaye v. Thibodeaux, 498 So. 2d 1137" date_filed="1986-12-10" court="La. Ct. App." case_name="Delahoussaye v. Thibodeaux">498 So.2d 1137 (La.App. 3rd Cir.1986), writ denied 501 So. 2d 236" date_filed="1987-02-06" court="La." case_name="Meyers v. Sabine Parish School Board">501 So.2d 236 (La.1987), the court held that a suit filed on February 22, 1985 was untimely when the vehicular accident in which the plaintiff was injured occurred on February 21, 1984. The court set out the law as follows, at 1138:
LSA-C.C. Art. 3492 provides that the prescriptive period of one year applicable to delictual actions commences to run from the day injury or damage is sustained. Additionally, LSA-C.C. Art. 3456 further provides that if a prescriptive period consists of one or more years, prescription accrues upon the expiration of the day of the last year that corresponds with the date of the commencement of prescription. Accordingly, in the absence of an interruption or suspension of prescription, prescription ran in the case sub judice on February 21, 1985. See Scales v. State, 411 So. 2d 658" date_filed="1982-03-09" court="La. Ct. App." case_name="Scales v. State">411 So.2d 658 (La.App. 4th Cir.1982); Mangin v. Auter, 360 So. 2d 577" date_filed="1978-06-13" court="La. Ct. App." case_name="Mangin v. Auter">360 So.2d 577 (La.App. 4th Cir.1978). [Emphasis supplied.]
The exception of prescription was correctly maintained in Ms. Warren’s suit and the judgment appealed from is affirmed. The cost of this appeal is to be borne by the appellant.
AFFIRMED.