Mrs. Virginia Kelly, Curtis Melancon, Henry Melancon, Jr., Mrs. Ella Lovig, and Lynn Melancon v. Hartford Accident & Indemnity Company , 294 F.2d 400 ( 1961 )

RIVES, Circuit Judge.

This appeal is from a judgment sustaining the defendant’s motion to dismiss the plaintiff’s action for the wrongful death of Mrs. Lillian Melancon Adams. The complaint alleged that on January 15,1959, Mrs. Adams was a guest passenger in an automobile operated by her husband, Andrew P. Adams; that “the automobile was caused to be in collision with a truck, when the automobile went into the opposite and oncoming traffic lane”; that Mrs. Adams’ husband “negligently failed to keep a proper lookout ahead, to maintain his automobile under proper control, to stay in his own traffic lane, and to otherwise operate the automobile in such a manner as to have avoided the collision” ; and that “as a result of the collision Mrs- Lillian Melancon Adams sustained severe personal injuries which were fatal to her.”

The plaintiffs are the brothers and sisters of Mrs. Adams. She is survived also by her husband, but not by any descendants or ascendants. The action is brought, pursuant to LSA-Revised Statutes of 1950, 22:655, directly against the liability insurer of Mrs. Adams’ husband. The defendant moved to dismiss the action on the ground that the plaintiffs are without right to bring this action under the law of Louisiana. Attached to the motion to dismiss is an affidavit of one of defendant’s attorneys to the effect that the husband, Andrew P. Adams, has filed suit against the defendant in a Louisiana State court for the wrongful death of his wife, asserting the identical cause of action being asserted by her brothers and sisters, except that damages are demanded on behalf of the husband.¹

The district court, without opinion, granted the defendant’s motion and dismissed the action. This appeal from that decision turns upon the construction of the Louisiana wrongful death statute as it existed at the time of decedent’s death,² in part as follows:

“Art. 2315. Liability for acts causing damage; survival of action

“Art. 2315. Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it; the right of this action shall survive in case of death in favor of the children, including adopted children and children given in adoption, or spouse of the deceased, or either of them, and in default of these in favor of the surviving father and mother or either of them, and in default of any of the above persons, then in favor of the surviving blood brothers and sisters, or either of them, for +he space of one year from the death. However, should the deceased leave a surviving spouse, together with minor children, the right of action shall accrue to both the surviving spouse and the minor children. The right of action shall accrue to the major children only in those cases where there is no surviving spouse or minor child or children.

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“The survivors above mentioned may also recover the damages sustained by them by the death of the parent or child or husband or wife or brothers or sisters or adoptive parent, or parents, or adopted person, as the ease may be.” LSA-C.C. Art. 2315.

The appellants suggest that decision on appeal of the husband’s action in the state court proceeding should be awaited. The present appeal was submitted on December 1,1960, more than eight months ago, and we think that its decision should not be longer delayed, inasmuch as the majority of this Court agree with the district court that, irrespective of whether or not the husband is ultimately held to have a right to sue his insurer, the decedent’s brothers and sisters are without right to bring this action under the law of Louisiana.

In Dowell, Inc. v. Jowers, 5 Cir., 1948, 166 F.2d 214, 219, 2 A.L.R.2d 442, this Court, with Judge Lee, a distinguished Louisiana lawyer and judge, as its organ, construed the Louisiana wrongful death statute as follows:

“A careful reading of the parts set forth above and of Louisiana case law on the subject shows that under the article two causes of action are given to the named beneficiaries, one the survived action, i. e., the action which the deceased had at the time of death; the other an action given by the Code to the named beneficiaries in their own right for the damages they suffer by reason of the death of their decedent. Eichorn v. New Orleans & C. R. Light & Power Co., 112 La. 236, 36 So. 335, 104 Am. St.Rep. 437; Reed v. Warren, 172 La. 1082, 136 So. 59; Voss, ‘The Recovery of Damages for Wrongful Death,’ etc., 1931, 6 Tulane L.R. 201 et seq.”

The appellee questions whether that construction is really in accord with the decision of the Supreme Court of Louisiana in Reed v. Warren, 1931, 172 La. 1082, 136 So. 59. The construction asserted in Dowell, Inc. v. Jowers, supra, has not been authoritatively corrected by the Louisiana state courts, and the appellants insist that it is correct. See also 16 Tulane L.Rev. 409, 413, n. 190. We agree with the appellants to that extent, but we think that the brothers and sisters neither succeed to the decedent’s claim for her own injury nor have any independent right to damages such as loss of affection, etc. suffered by reason of the death of their sister.

That the brothers and sisters do not succeed to the decedent’s claim for her own injury would appear to be settled by the decision in Addison v. Employers Mutual Liability Insurance Co. of Wisconsin, La.App.1953, 64 So.2d 484, 485. In that case, Mrs. Addison sued her husband’s liability insurer for injuries allegedly resulting from her husband’s negligence and, while her suit was pending, Mrs. Addison died. Her children who were all majors were made parties plaintiff in place of the deceased. Despite the fact that the husband was the alleged tort feasor, the appellate court held that “exception was properly taken” to the substitution of the children as parties plaintiff, and that the husband “succeeds to her claim and stands in her shoes.” The husband was denied recovery because “the obligation was extinguished by confusion when plaintiff’s wife died and he succeeded to her rights.”

As to any independent right of the brothers and sisters to damages such as grief, loss of affection, etc. suffered by reason of the death of their sister, the general rule of construction has been thus stated:

“But time and time again our courts have reiterated the definite principle that the right of action for damages for the death of a human being is in derogation of a common right and cannot be extended by implication to other surviving relations than those to whom it is expressly granted by statute.”

Goodwin v. El Dorado Baking Co., La.App., 2d Cir., 1947, 31 So.2d 230, 232, 233.

In that case it was held that an insane daughter above the age of majority had no right of action for her mother’s death where the decedent was also survived by her husband. The decision of that case was made easier by the plain language of the last sentence of the first paragraph of Article 2315, supra, which was quoted by the Court with emphasis: “The right of action shall accrue to the major children only in those cases where there is no surviving spouse or minor child or children.”

Here the appellants argue that the earlier expression, “in default of any of the above persons,” is more'ambiguous, and should be construed to mean “in event of non-recovery” by the earlier ranking beneficiaries. To support that argument, the appellants rely not on the decisions, but on law review articles simply stating the opinions of the authors as to a rule or interpretation which would be “more just.” 6 Tulane L.Rev. 201, 236; 16 Tulane L.Rev. 386, 412. The adoption of a “more just” State law is not a matter for the consideration of a federal court but is appropriately addressed to the State legislature.³

The rule of strict construction asserted in Goodwin v. El Dorado Baking Co., supra, by which we are bound under the Erie doctrine, forbids us so to extend the right of recovery under the statute. “In default of” is used synonymously with “where there is no” as that phrase appears in the last sentence of the first paragraph of Article 2315, supra, heretofore quoted. That use reinforces our view that the ordinary and natural meaning of the phrase “in default of” appears to be “in the absence of,” and that it was so employed in Article 2315.

It seems clear to us that, Mrs. Adams having left a surviving husband, her brothers and sisters neither succeeded to her claim for her own injury, nor were granted any independent right of action for grief, loss of affection, or other damages suffered by reason of the death of their sister. The judgment is therefore

Affirmed.

1 . We are informed by the appellants that the state trial court dismissed the husband’s action against his insurer for his wife’s death, basing its decision on the case of Addison v. Employers Mutual Liability Insurance Co. of Wisconsin, La. App.1953, 64 So.2d 484, discussed later in this opinion, and that an appeal has been taken from said dismissal.

2 . The statute was amended by Acts 1960, No. 30, § 1.

3 . Indeed, some of the suggestions in the Law Review articles may have been adopted by the 1960 Amendment referred to in footnote 2, supra.

VIII. Rule 12(b) F.R.Civ.P.:

“ * * * If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be. given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.”