Bordelon v. LA. Railway & Navigation Co.

Citations

• 12 Teiss. 405
• 1915 La. App. LEXIS 84

Syllabus

<p>Syllabus.</p> <p>1. In contemplation of law an action is “commenced” only when the defendant is served with the process of the Court.</p> <p>2. The obvious purpose of the provision contained in C. C., 3470, that “there are no other prescriptions than those established by the Statutes of this State,” is to deny to Courts in this State the power assumed by Courts of Equity in other jurisdictions, to reject a demand on the ground that it has become “stale,” and thus reserve to the law-making power alone the right to fix the time within which the several kinds of civil actions shall be commenced.</p> <p>3. A clause in a contract between individuals, neither being under any legal obligation to serve the other, limiting the time within which suits may be commenced upon a cause of action growing out of such contract, is not contrary to law or public policy.</p> <p>4. There 'is a difference between stipulation against the consequence of one’s own negligence, and a stipulation limiting the time within which' an action founded upon such negligence may be brought; the one affects the rights of the parties, the other concerns the remedy only.</p> <p>5. An agreement fixing a limit of six months within which to commence an action against a carrier for damages done to a shipment is not unreasonable; it is in accord with. the spirit, if not the letter of the Civil Code, which provides (C. C., 3237) that the privilege granted upon ships and other vessels for the damage done to cargo, shall be prescribed in six months.1</p> <p>6. The term “contrary to law” when applied to the provisions of a contract, means “in contravention of some prohibitory law;” it has no application to an agreement which merely modifies the law by providing a rule different from that which the law would itself provide, had no agreement been entered into thereon.</p>