Opinion
No. 6439.
December 10, 1974. Rehearing Denied January 14, 1975. Writ Refused March 14, 1975.
APPEAL FROM TWENTY-FOURTH JUDICIAL DISTRICT COURT, DIV. "H", PARISH OF JEFFERSON, STATE OF LOUISIANA, HONORABLE THOMAS C. WICKER, JR., J.
Holloway, Baker, Culpepper Brunson, Bobby L. Culpepper, Jonesboro, for plaintiffs-appellants.
Christovich Kearney, R. K. Christovich, New Orleans, for defendant-appellee.
Before SAMUEL, REDMANN and BOUTALL, JJ.
Plaintiffs, husband and wife, filed this suit against Texas International Airlines, Inc. to recover $15,000 for personal injuries and medical expenses. They allege that on January 26, 1971 Mrs. Bean, a fare paying passenger, fell while boarding an airplane operated by the defendant and that the damages sought resulted from that fall. They further allege the accident was caused by various enumerated acts of negligence on the part of the defendant. Suit was filed on December 26, 1972, one year and eleven months after the alleged accident.
Based on the theory that the accident was one in tort which prescribed in one year under LSA-C.C. Art. 3536, the defendant airline filed an exception of prescription to the petition. The exception was maintained and plaintiffs have appealed.
Plaintiffs argue the accident is governed by the contract of carriage between them and the defendant, thus making the prescriptive period ten years pursuant to LSA-C.C. Art. 3544. Thus, the only question presented is whether the action in suit is a quasi offense which prescribes in one years under LSA-C.C. Art. 3536 or one which arises in contract and prescribes in ten years under LSA-C.C. Art. 3544.
Our conclusion is that the injury is the result of a quasi offense and prescribes in one year. The law requires the common carrier to transport in a safe manner those who offer themselves as fare paying passengers. However, our jurisprudence consistently has recognized that an action against a common carrier for failure to carry a passenger without physical harm is a tort or quasi offense which prescribes if suit is not brought thereon within one year of the accident. The contract of carriage between the plaintiffs and the defendant merely determines the duty owed by the defendant and does not change the nature of the cause of action or the prescriptive period applicable thereto.
Stephenson v. New Orleans Ry. Light Co., 165 La. 132, 115 So. 412; Warner v. New Orleans C.R. Co., 104 La. 536, 29 So. 226; Sizeler v. Employers' Liability Assurance Corp., La., 102 So.2d 326.
See Sizeler v. Employers' Liability Assurance Corporation, supra, footnote 1.
For the reasons assigned, the judgment appealed from is affirmed.
Affirmed.
Does an airline by its contract with a fare-paying passenger have a contractual obligation to provide safe boarding equipment for the passenger to board the plane? If so, plaintiffs have alleged a breach of contract by defendant airline. Plaintiffs have also alleged damages from the breach — medical expenses and pain and suffering.
A ruling that tort actions are prescribed by one year does not explain why plaintiffs' claim for damages for breach of contract is being dismissed.
Nor does it explain why damages during paid transportation is breach of contract if one's furniture is damaged, but not breach of contract if one's body is damaged.
In my opinion the majority's result is correct as to general damages and incorrect as to medical expenses.
I agree that general damages for personal injury are not recoverable as damages from ordinary breach of a contract because C.C. art. 1934 ordinarily limits contract-breach damages (in part) to "the amount of the loss . . . sustained. . ." See Greenburg v. Fourroux, La.App. 1974, 300 So.2d 641. (Jiles v. Venus Community Center B.M.A. Ass'n, 1939, 191 La. 803, 186 So. 342, which awarded damages for mental anguish on a theory of breach of contract, can be distinguished as a case of tort as well as of breach of contract.)
But medical costs are an "amount" of loss, a reduction of plaintiff's patrimony, sustained from defendant's breach of its contract to provide safe passage.
See Litvinoff, Louisiana Civil Law Treatise, Obligations, § 44, at p. 61.
No medical costs were sought in Stephenson v. New Orleans Ry. L. Co., 1927, 165 La. 132, 115 So. 412, which was a wrongful death action by the passenger's survivors for their own loss. Warner v. New Orleans C.R. Co., 1901, 104 La. 536, 29 So. 226, describing itself as an "action in damages," similarly did not inquire whether medical expenses were recoverable in contract. In Sizeler v. Employers Liab. Assur. Corp., La.App. 1958, 102 So.2d 326, writ refused, a claim including medical expense was presented on a theory of contract against an auto repairman who, as an accommodation, provided his customers transportation to the business district. During transportation plaintiff wife was injured. We rejected the entire claim (including medical) as prescribed by tort prescription. In my opinion we should declare Sizeler inapplicable to common carriers' contracts of passage (or else overrule it), in respect to actual pecuniary losses like medical costs.