I respectfully dissent from the ruling of the majority of the court on the plea of prescription presented on behalf of the defendants in these cases.
The articles of the Civil Code which govern and have to be considered on this plea are articles 3536, 3537, 3467, and 3469.
The first of these articles fixes the period of prescription:
"The following actions are also prescribed by one year:
"That for injurious words * * * and that for damages * * * resulting from offenses or quasi offenses. * * *"
The second mentioned article fixes the starting date of the period of prescription in the following language:
"The prescription mentioned in the preceding article runs:
"With respect to the merchandise injured or not delivered, from the day of the arrival of the vessel. * * *
"And in the other cases from that on which the injurious words, disturbance or damage were sustained."
It is thus established, therefore, that the period of prescription in these cases is one year, commencing from the day on which the damage was sustained. (Italics mine.)
According to the allegations of the petition in each case, the automobile accident and the resulting damages sustained took place on December 17, 1932. The date, December 17 of the following year, happened to fall on a Sunday, and the plaintiffs, claiming that date fixed the end of the period in which they had to file their suits, and that it was a dies non, took the next day, that is, Monday, December 18, 1933, as the final date, and did on that day file their suits, which they contend were filed in time.
The next article of the Civil Code mentioned as bearing on the subject, article 3467, provides that: "The time required for prescription is reckoned by days, and not by hours; it is only acquired after the last day allowed by law has elapsed."
Then article 3469 provides that: "In such prescriptions as are acquired in one or more years, the time is reckoned according to the years of the calendar which have elapsed during the time of possession."
It is thus seen that by the terms of article 3467 the last day of the prescriptive period must have entirely expired. In other words, the party claiming the prescription cannot claim it by a certain number of hour or moments. Some of the French commentators, in their discussions on this point, use the expression taken from the Roman law, "a momento ad momentum." See Pothier, vol. 4, p. 616; Duranton, vol. 21, p. 557. These authors point out the difference in the computation of the period as far as the time of expiration is concerned between the prescription *Page 150 acquirendi cansi and the prescription liberandi causi. Pothier distinctly states that as to the prescription established against a personal action of a creditor against his debtor it is accomplished after the last day has entirely expired, which seems to be in accord with article 3467 of our Code, by the provisions of which, of course, we are governed. In Rady v. Fire Insurance Patrol of New Orleans, 126 La. 273,52 So. 491, 139 Am. St. Rep. 511, the Supreme Court distinctly held that the day a quo is to be excluded in computing the prescriptive period of one year in an action for damages, citing article 3467 of the Civil Code. The court also cited as authority the case of De Armas v. De Armas, 3 La. Ann. 528. Referring to this latter case, it is noted that the prescriptive period involved was not that of one year, but one of forty days fixed by special statute. In speaking of the days ad quem and a quo, the court says that the former is included, but that the article of the Code is silent as regards the latter. The court then resorts to French authorities to support its holding that the day a quo is not included in the computation. It must be borne in mind, as just stated, that the prescription claimed in that case was one of a short period, and that the action was not one for damages, as that in this case, which is prescribed by oneyear which begins to run from the day on which the damage wassustained. (Italics mine.) There are numbers of cases from other jurisdictions as well as from this state in which, in construing the expression "reckoned by" or "reckoned from," the courts have held that the time must be computed from the day after that on which the event which gives rise to the action happened. As an example of such a case in this State, reference may be made to McWilliams v. Comcaux, 135 La. 210, 65 So. 112. But why the expression "reckoned by" as used in article 3467 of the Civil Code should be resorted to in order to hold that the action for damages which is prescribed by one year, commencing to run fromthe day on which the damage was sustained, realty means that prescription runs only from the day after that on which the damage was sustained, I am unable to understand. (Italics mine.) Reckoning from the one day or the other in this case would make a difference so marked as to eliminate the real question on which the pica is based. In other words, if the day on which the damage was sustained, December 17, 1932, is taken as the starting point, the last day plaintiffs had would then have been Saturday, December 16, 1933, and the court would not be called on to say what effect, the last day being otherwise, a Sunday, would have in the matter. Of course, if what is referred to here as the holding of the Supreme Court with regard to the exclusion of the day on which the damage was sustained is what is really meant, it must be conceded that this court, as one of inferior jurisdiction, is bound to follow that ruling, and I will now proceed to a consideration of the real issue that is presented.
It is to be observed that under article 3469 of the Civil Code, in prescriptions that are acquired in one year, such as that with which we are here concerned, the time must be reckoned according to a calendar year. A calendar year, of course, consists of 365 days, except in case of a leap year, which is 366 days. The year 1933 with which we are particularly concerned in this case was not a leap year, and naturally we do not have to take that matter into account.
Now, computing 365 days from, and including December 18, 1932, which was the day after that on which the accident complained of happened, and that on which, according to the decisions, prescription began to run, we get to midnight of December 17, 1933, the day on which it had been acquired and the action barred. If, therefore, these plaintiffs are given the whole of the following day, December 18, 1933, they will have had 366 days, which is one day more than the calendar year. Of course, it could be argued on the other side that, had plaintiffs been compelled to file their suits on Saturday, December 16, 1933, the 17th, being a dies non, they would have had but 364 days, or one day less than a calendar year. We can readily see the circle into which such argument would lead us and how it would serve but little purpose in a solution of the question. The majority opinion seems to be based principally on the ground that the law does not favor the forfeiture of a right, with which I agree as a general proposition, but I contend that, where a party has been given a whole year by the law to exercise the right he claims, he has already received a favor, and that, if he neglects to protect it and meets a situation such as is presented in this case, he has no one to blame but himself. Pothier, who has already been cited, in explaining some of the differences in computing the time of prescription by which property is acquired and that by which a person is liberated from debt, makes this significant commentary: "La raison de difference est, que dans la prescription contre les actions personelles, la loi a pour object de punir la negligence du creancier; elle lui prescript uncertain *Page 151 temp dans lequel elle vent qu'il entente son action: passe lequel, elle veut qu'il n'y soit plus recu."
I attempt the following translation: "The reason for this difference is, that as regards the prescription against personal actions, the object of the law is to punish the negligence of the creditor: it prescribes a certain time within which it wants him to institute his action: past which, it no longer wishes it to be received."
I maintain that a person who awaits 364 days in which to institute a suit for damages and then, finding that the three hundred and sixty-fifth day, which is his last day in which to do so, is a Sunday, and because of that claims the whole of another day more than the calendar year, has been guilty of negligence by his inaction, and, as Pothier states, the purpose of the law is to punish him by prescribing that his suit can no longer be entertained.
I concede that there is a vast conflict of authority in the decisions cited by counsel on both sides in these suits, but that conflict seems to have arisen in cases in which the period of limitation had reference to the pertormance of some act prescribed by special statute or to matters of practice. In such cases, the period is generally one of days; short periods in which only one or two Sundays may have intervened, and they are usually excluded in the computation of the time allowed. In some instances, the last day is expressly excluded by the terms of the statute itself. As examples of such statutes in this state, I may refer to article 575 of the Code of Practice, as amended by various acts of the Legislature, which regulates the matter of appeals, and in which Sundays are excluded, and also article 318 of the same Code, which specially provides for the exclusion of the day on which service of notice is made and the day on which an act is to be done, in all cases where the delay is given to do something or to answer.
The point I make is expressed better than I can state it in 62 C. J. p. 1000, under the topic "Time," at section 49, which has special reference to the performance of acts when the last day given to perform them falls on Sunday:
"As Sunday is dies non juridicus in regard to judicial and official acts and proceedings, and as the performance of common labor as well as the transaction of ordinary business on that day is generally prohibited by statute, it is a general ru'e, made so by statute in many jurisdictions, that, except where the act in question may be lawfully done on Sundays, when the last day of a period of time within which an act is to be done falls on Sunday, that day is excluded from the computation, and the act may be rightfully done on the following secular or business day; * * * or in case of an act to be done by a Court, it may be done on the next succeeding day, after Sunday, on which the Court can perform the duty imposed on it. This rule is generally applied alike to the construction of statutes and to matters of practice, or to any act allowed or required by law, or by rule or order of Court, except where it is specifically otherwise provided. The ruleapplies, however, only where there is some act to be performed onthe last day, which is Sunday, and hence it does not apply whereSunday is the last day of a period which is fully elapsed beforethe act is to be done." (Italics mine.)
Other expressions bearing directly on the point involved are to be found in a decision from the state of Kentucky, Geneva Cooperage Co. v. Brown, 124 Ky. 16, 98 S. W. 279, 124 Am. St. Rep. 388. Because of the striking similarity of that case with the one presently before us, I take the liberty of quoting rather copiously from the decision:
"In the construction of this statute, the word `year' means a calendar year. Ky. St. 1903, § 452. And a calendar year is ordinarily and in common acceptation considered to be 365 days. But if the calendar year is computed from a given day in a month, say September 19, 1903, and the time within which the action must be brought expires in one year, it would expire on the next day before the 19th of September of the following year namely, on the 18th of September. And it happens that in thus computing the time in this particular case, and counting from September 19, 1903, to September 18, 1904, inclusive, the appellee had 366 days in which to institute this action. Ordinarily there would be included in this period 365 days, but as 1904 was a leap year, one day was added. So that, giving the statute the most favorable construction, and extending the meaning of `calendar year' to its extreme limit, the action is yet barred. * * *
"Nor can there be any question that, under the rule of construction adopted by this court, the day on which the injury occurred must be included. * * *
"It is said, however, that the 18th of Sep tember, 1904, fell on Sunday, and as the action could not have been instituted upon that day, the person entitled to bring the suit *Page 152 should be allowed the whole of the next day in which to institute his action; and in support of this proposition our attention is called to Owen v. Howard Ins. Co., 87 Ky. 571,10 S.W. 119, which was a suit upon an insurance policy providing that no action upon it could be maintained unless commenced within 12 months next after the fire occurred, and, as the last day of the year was Sunday, it was held that the action might be instituted on the following day, the court resting its conclusion upon the ground that, as the statute of limitation relied on was the result of a contract, it should be fairly and equitably construed to effect the intention of the parties, and relieve the contract of an interpretation that would defeat its enforcement. And this seems to be the view generally taken in the construction of limitation clauses in contracts, although intervening Sundays will be counted. It is only when the day of performance falls on Sunday that it will be excluded and the next day al'owed. Salter v. Burt, 20 Wend. (N. Y.) 205, 32 Am. Dec. 530; Avery v. Stewart,2 Conn. 69, 7 Am. Dec. 240; State v. Michel, 52 La. Ann. 736, 27 So. 565, 49 L.R.A. 218, 78 Am. St. Rep. 364. But this rule hasnever been extended to embrace statutory provisions limiting thetime in which an action must be brought. Indeed, there seems tobe no good reason why the court should take the liberty ofextending the period of limitation fixed by the legislativedepartment, when the time fixed is sufficient to give all personsinterested ample opportunity to protect their rights byinstituting an action [italics mine]; although it seems to be generally accepted that, when the period of time within which an act must be done is less than a week, an intervening Sunday will be excluded; if more than a week, the Sunday will be included. Am. Eng. Ency. of Law, vol. 26, p. 10; State v. Michel, 52 La. Ann. 936, 27 So. 565, 49 L.R.A. 218, 78 Am. St. Rep. 364. * * *
"Our attention has been directed to section 454 of the Statutes of 1903, providing that `if any proceeding is directed by law to take place, or any act is directed to be done, on a particular day of a month, if that day happen to be Sunday, the proceeding shall take place or act shall be done on the next day.' This section is found in the chapter on the construction of statutes, but its meaning cannot be extended to embrace provisions in the statute of limitations. By its terms, it is confined to a proceeding directed by law to take place, or an act directed to be done, which must be construed to mean in the course of judicial proceedings.
"After a full investigation of the authorities, and a careful consideration of the question, we cannot escape the conclusion that an action under this statute must be brought within a year, and, if the last day of the year happens to fall on Sunday, the time in which it may be brought cannot be extended to the following day."
Such seems to me to be the logical view to take rather than resting the matter on the broad principle of avoiding the forfeiture of a right. The right in this instance is one which the parties have enjoyed for a whole year, and if, having a just and honest claim against these defendants, they have waited until the expiration of that period and find themselves confronted with the situation in which their laches have placed them, they should, as Pothier says, be punished for their negligence in having failed to exercise that right in time.
For the reasons stated, I favored sustaining the pleas of prescription and of dismissing the suits on that ground. The majority of the court having decided otherwise, it became necessary for me to consider the cases on their merits, and, after doing so, I agreed with the reasons rendered by Judge MOUTON and concur in the decree contained in the opinion handed down by him.