Opinion
No. 5854.
November 2, 1973. Rehearing Denied November 30, 1973 Writ Granted January 25, 1974.
APPEAL FROM CIVIL DISTRICT COURT, PARISH OF ORLEANS, NO. 528-669, DIVISION "G", STATE OF LOUISIANA, HONORABLE PAUL P. GAROFALO, J.
Richard A. Dowling, New Orleans, for plaintiffs-appellants.
Dermot S. McGlinchey, C. G. Norwood, Jr., Deutsch, Kerrigan Stiles, New Orleans, for defendant-appellee.
Before LEMMON, J., and BAILES and FLEMING, JJ. Pro Tem.
This suit was filed on August 20, 1971, alleging a tort against "Mercury-Ford-Comet Company of Lorain, Michigan" which occurred on August 22, 1970. Service of process was made upon the Secretary of State on August 23, 1971. Ultimately a copy of a petition was sent to a plant operated by the Ford Motor Company in Kansas City, Missouri, and in response to this the Ford Motor Company, a foreign corporation authorized to and doing business in Louisiana, who had appointed the C. T. Corporation System as its registered agent for service of process, filed a motion to quash the service which motion was granted on May 23, 1972. An Amended petition naming "Ford Motor Company of Lorain, Ohio" was filed June 7, 1972, corrected June 16, 1972, which was also served on the Secretary of State. "Ford Motor Company" filed an exception of prescription which was sustained. From that judgment the plaintiff has taken this appeal.
In this court the appellant contends that although the original defendant is non-existent the filing of the suit interrupted prescription as to all potential defendants citing R.S. 9:5801.
This issue was considered and determined by this court in the case of Jacobs v. Harmon, La.App., 197 So.2d 704 (1967), which is dispositive of this case. In the Jacobs case suit was filed shortly before the prescriptive period expired against "A. A. Harmon, doing business as Alto Trailer Sales." The service was made upon Mr. Harmon six days after the prescriptive period had elapsed. It was determined that the business had been incorporated previously so the plaintiff amended his petition to join the proper party defendant, Alto Trailer Sales, Inc. This court found that the suit against the wrong first defendant did not interrupt prescription. This court said:
"* * * Imprimis, we note: (1) no solidary liability existed between Harmon the original defendant, and either of the other two defendants brought in by supplemental petition (there was no liability at all on the part of Harmon individually); (2) no fraud has been alleged or proved; and (3) the record is devoid of any evidence indicating the defendants, or any of them, misled or obstructed plaintiff in obtaining the true facts."
In this case there is no indication of solidary liability between the original defendant and the new defendant; no fraud has been alleged or proved; not only is the record devoid of evidence indicating that the plaintiff was misled, it appears that in the motion to quash the defendant was clearly identified. The filing of the suit in no way conveys to the Ford Motor Company information that would cause prescription to be interrupted in view of the fact that service of citation was made after the period of prescription had accrued and even then Ford Motor Company had no notice until January 10, 1972, when the misdirected citation was sent to one of its plants in Missouri.
As was said in the Harmon case supra:
"Certainly, the filing of the suit, by itself, in actual fact conveys no such information to the named defendant; simply as a result of the filing he can have no such knowledge to impart to the proper defendant who has not been impleaded. The only legal manner by which the named defendant can receive notice and knowledge of the claim, and of the origin and basis of the suit thereon, is by service of citation and petition. Only after such service does he possess the knowledge which he can impart to the proper defendant."
If the Ford Motor Company was ever properly served, which is not without question, it was service after the period of prescription barred the plaintiff's remedy if any.
The judgment is affirmed. Costs of this proceeding are to borne by plaintiff-appellants.
Affirmed.
LEMMON, J., dissents with written reasons.
Prescription is interrupted by the commencement of a civil action in a court of competent jurisdiction and in the proper venue. R.S. 9:5801. A civil action is commenced by the filing of a pleading presenting the demand. C.C.P. art. 421. Therefore, nothing more than the filing of a petition in the proper court is necessary to interrupt prescription as to all defendants named in the petition. Schrader v. Coleman E. Adler Sons, 225 La. 352, 72 So.2d 872 (1954).
In the present case the sole issue is whether Ford Motor Company was effectively named as a defendant in the original petition. If not, any claim against that company has prescribed. To determine that issue, a court should not ordinarily consider any events (such as service of citation) which occurred after the filing of the original petition, since issues relative to the interruption of prescription by the filing of a petition must be determined as of the time of filing. Levy v. Stelly, 277 So.2d 194 (La.App. 4th Cir. 1973), cert. denied, La., 279 So.2d 203 (1973).
Plaintiffs timely-filed original petition named "Mercury-Ford-Comet Company of Lorain, Michigan" as the defendant in an action to recover damages against the manufacturer of a "certain Comet Mercury automobile, `Caliente model'." Allegedly, when plaintiffs purchased the Comet locally, the sales slip indicated the named defendant had manufactured the automobile. Plaintiffs allegedly sustained damages when the automobile "came apart" during operation.
An affidavit by a staff attorney for Ford Motor Company, attached to the motion to quash the service, attested to the fact that at the pertinent time Ford Motor Company manufactured the Comet-Mercury line of automobiles and operated an assembly plant at Lorain, Ohio. However, according to the affidavit, Ford Motor Company had no facility at Lorain, Michigan and had no affiliated corporation known as Comet-Mercury-Ford of Lorain, Michigan.
The majority relies on Jacobs v. Harmon, supra, which in my opinion was wrongly decided. The Jacobs decision recognized that prescription against the proper defendant could be interrupted by a timely petition in which that defendant was improperly named. However, this court held that under such circumstances, the petition must be filed and the citation and service must also be effected within the prescriptive period. The court reasoned that only when notice was actually conveyed to the proper party in some capacity was prescription interrupted, pointing out that mere filing of the suit conveyed no notice to anyone.
R.S. 9:5801 only requires the timely filing of a suit in a court of competent jurisdiction and venue in order to preserve a plaintiff's cause of action. The statute does not presently require that citation be made or even attempted within a certain period in order to protect plaintiff's claim.
Thus, if the present claim had been filed against Ford Motor Company, but the petition never served, the cause of action would still be preserved. In that hypothetical situation, perhaps justice would require discretionary protective action by the trial court if the defendant shows prejudice because of intentionally delayed notice, but the claim itself would not necessarily be barred.
See, for example, Miller v. New Orleans Public Service, Inc., 250 So.2d 108 (La.App. 4th Cir. 1971).
In my opinion the test as to whether the filing of a petition naming an improper defendant interrupts prescription as to the proper defendant (in the absence of considerations of solidary liability, fraud, or misrepresentation) is whether the proper defendant, upon reading the petition, would be reasonably informed that the suit asserts a claim against him.
If "Ford Motor Corporation" or "Comet Motor Company" or "Ford Automobile Company" had been named, the exact same issue would be before the court, namely, did such a designation effectively serve to name Ford Motor Company as a defendant. The question is therefore one of degree — how close is the improper name to the proper name? In resolving questions of degree, the usual test is reasonableness.
When Ford Motor Company finally received a copy of the original petition in the present case, that company immediately determined that plaintiffs had attempted to assert a claim against Ford Motor Company. I therefore believe that since the petition, when eventually served, reasonably informed Ford Motor Company of a claim against it, the filing of the petition interrupted prescription as to Ford Motor Company under present statutory requirements.