LaBORDE v. EAGLE TRUCKING CO., 409 So.2d 1266 (La.App. 2 Cir. 1982)

BETTY OLIVER LaBORDE AND GENE ARTHUR LaBORDE, PLAINTIFFS-APPELLANTS, v. EAGLE TRUCKING COMPANY, LINCOLN INSURANCE COMPANY, GUARANTEE INSURANCE COMPANY FELIX PORTA, DEFENDANTS-APPELLEES.

No. 14746.Court of Appeal of Louisiana, Second Circuit.
January 25, 1982. Writs Denied April 21, 1982.

APPEAL FROM FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO, STATE OF LOUISIANA, HONORABLE PAUL LYNCH, J.

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Mecom Scott by Leroy H. Scott, Jr., Shreveport, for plaintiffs-appellants.

Bodenheimer, Jones, Klotz Simmons, Shreveport by G. M. Bodenheimer, for defendants-appellees.

Before HALL, MARVIN and JASPER E. JONES, JJ.

MARVIN, Judge.

[1] Does CC Art. 2317 afford to a decedent’s surviving parents a cause of action for wrongful death when they do not have a cause of action under CC 2315 because the decedent’s spouse and child also survive?[1] [2] The trial court answered this precise issue negatively and the parents appeal the judgment dismissing the action on defendants’ peremptory exception of no cause of action. [3] The wrongful death action has been much discussed by the bench and bar in Louisiana.[2] The Supreme Court has said that the legal right and cause of action of one injured by loss of economic aid [and] love and affection is independent of any action which the decedent might have had and which would have passed to his heirs. King v. Cancienne, 316 So.2d 366
(La. 1975). Nonetheless, the wrongful death action is still considered as a creature of legislation specifically provided in those certain and limited circumstance and forth in amendments to CC Art. 2315. Flynn v. Devore, 373 So.2d 580 (La.App. 3d Cir. 1979). [4] The parents here argue that other Supreme Court cases have expanded traditional tort recovery beyond mere negligence and into fault and strict liability in some instances.[3] The theory common to these cases perhaps is best expressed i Arceneaux v. Domingue, 365 So.2d 1330 (La. 1979), to the effect that delictual responsibility [does] not necessarily depend upon negligent acts, but upon fault, and that the custodian of an instrumentality that poses an unreasonable risk of injury to another is at fault. 365 So.2d at p. 1335. [5] Fault is more comprehensive term than negligence, and fault encompasses many acts which are not morally wrong, but are merely violative of laws or of legal duties. Seals v. Morris, 410 So.2d 715 (La. 1981); Langlois v. Allied Chemical, 258 La. 1067, 249 So.2d 133 (1971). [6] Perhaps the legislature may one day agree that parent ought to recover for the loss of a child in all circumstances of wrongful death, rather than under the circumstances delineated by the present statute. The courts thus far, however, have not accepted invitations to go beyond the clear

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import of the statute and instead have generally construed the statute creating the wrongful death action strictly rather than liberally. Roche, cited in footnote 2.

[7] Civil Code Art. 2315 begins Chapter 2 of Title V of Book III of the Civil Code. This chapter, entitled “Of Offenses and Quasi Offense”, includes the strict or custodial liability of CC 2317 as an offense or Quasi offense. The right to recover damage if the injured person dies because of a CC 2317 offense or quasi offense is set forth in CC 2315, and because of the surviving spouse and child, these parents do not have the right or cause of action to recover for the wrongful death of their son. [8] Other plaintiffs have unsuccessfully asserted that other statutory and constitutional provisions effectively “extend” the CC 2315 wrongful death action to circumstances and persons not within the clear import of the article. Branch v. Aetna Cas. Sur. Co., 370 So.2d 1270 (La.App. 3d Cir. 1979), writ denied. Other provisions of law, constitutional, statutory, and, as in this appeal, Civil Code Article 2317, will not be used by the courts to extend or to broaden the action for wrongful death that is exclusively set forth in CC Art. 2315. Se Branch, supra. [9] At appellants’ cost, judgment is AFFIRMED.