Opinion
No. 5451.
May 26, 1976.
APPEAL FROM 10TH JUDICIAL DISTRICT COURT, PARISH OF NATCHITOCHES, STATE OF LOUISIANA, HONORABLE W. PEYTON CUNNINGHAM, JR., J.
Lunn, Irion, Switzer, Johnson Salley by Jack E. Carlisle, Jr., Shreveport, Jack O. Brittain, Natchitoches, John P. Godfrey, Many, for defendant-appellant.
Gold, Hall, Hammill Little by John F. Simon, Alexandria, Watson, Murchison, Crews Arthur by William P. Crews, Jr., Natchitoches, for defendant-appellee.
G. F. Thomas, Jr., Nachitoches, William J. Doran, Jr., Norman J. Sisson, Robert J. Jones, Sharon P. Frazier, David K. Balfour, Baton Rouge, for plaintiff-appellee.
Before MILLER, WATSON and BERTRAND, JJ.
Plaintiff, Tom Elkins, filed this suit to recover for personal injuries and property damage resulting from an automobile accident on January 18, 1972. Named defendants were Reliance Insurance Company and Fireman's Insurance Company of Newark, New Jersey, both of which were alleged to have uninsured motorist coverage on the Buick automobile operated by Elkins. The automobile was owned by Elkins' employer, Daray Motor Company, which provided it for Elkins' regular use. The suit was subsequently compromised and dismissed as to Reliance. Fireman's filed a third party demand against Ronnie E. Brummerloh, the owner and operator of the other automobile involved in the accident; and against the Louisiana Department of Highways, Louisiana Paving Company, Inc., and the city of Natchitoches, Louisiana, all allegedly negligent as to Louisiana Highway 6. Louisiana paving Company, Inc. filed an exception of prescription to the third party demand on the ground that the accident occurred January 18, 1972, and the petition of Elkins was not filed until March 21, 1975. This exception was sustained by the trial court and Fireman's has appealed.
Other pleadings in the record are not pertinent to this appeal.
Fireman's contends that the trial court erred in maintaining the exception of prescription because prescription was interrupted by a companion suit filed January 10, 1973. The record in this appeal contains no evidence to support this contention; there is nothing to establish the filing of another suit. Accordingly, this contention cannot be considered.
On the record presented, the third party demand of Fireman's Insurance Company of Newark, New Jersey, against Louisiana Paving Company, Inc., based on negligence, has prescribed and was properly dismissed on the peremptory exception of prescription.
For the foregoing reasons, the judgment of the trial court sustaining the exception of prescription filed by Louisiana Paving Company, Inc. is affirmed. All costs of this appeal are assessed to defendant-third party plaintiff-appellant, Fireman's Insurance Company of Newark, New Jersey.
AFFIRMED.