No. 29146. Precedential Processed

Vitale v. Checker Cab Co.

Louisiana Supreme Court · Filed May 7, 1928 · 117 So. 579

Cited by

Opinion text

O’NIELL, C. J. (concurring). It appears to me that there is a logical reason for our holding'that, although the right of action of the wife to claim damages for the physical injuries suffered by her is not defeated by the fact that her husband was guilty of contributory negligence, nevertheless she has no right of action for damages suffered by her in consequence of his death in a ease where,,because of his contributory negligence, he would have had no right of action for damages for the physical injuries suffered by him if they had not resulted in his death. It was by the Act 223 of 1855 that article 2315 (then 2294) of the Code was enlarged, so as to provide for the survival of the right of action in case of the death of the injured person. As to that item or element of damages, of course, no right of action can survive in case of the death of the person injured if, because of his contributory negligence, he would not have had a right of action if he had not died. As to that item or element of damages, the survival of the right of action does not depend upon whether the death of the person injured was the result of the injuries which he suffered. But the additional right of action, which was granted to certain surviving relations by the paragraph which was added to article 2315 by the Act 71 of 1884 (afterwards enlarged by the Act 120 of 1908 and Act 159 of 1918), to recover the damages suffered by them by reason of the death of the injured person, does depend upon whether the death was the result of the injury done to him by the person whose fault or negligence caused the injury. The reason why the wife’s right of action to claim damages for the physical injuries inflicted upon her by the fault or negligence of another is not defeated by the husband’s contributory negligence is that her right of action to that extent accrues to her immediately, and not in consequence of the physical injury and death of her husband. To that extent the wife’s right of action does not depend upon the husband’s being injured at all. But the right of action which the law grants to the wife to claim damages suffered by her in consequence of the death of her husband caused by the fault or negligence of a third person, ought to depend upon whether the husband would have had a right of action to claim damages for the physical injuries suffered by him if they had not been fatal. In other words, the wife or any other of the beneficiaries mentioned in the amendment of the statute should not have a right of action for damages for physical injuries causing the death of the person injured unless he would have had a right of action if the injuries had not caused his death.