Givens v. Prof. Nurses Home Health Serv.

516 So. 2d 120 (1987)

Viola GIVENS v. PROFESSIONAL NURSES HOME HEALTH SERVICES, INC.

No. 87-C-2386.

Supreme Court of Louisiana.

December 11, 1987.

*121 PER CURIAM.

GRANTED. The peremptory exception of prescription was incorrectly sustained by the trial court and the court of appeal on the ground that there was no proof of solidary liability at the hearing on the exception.

Pearson v. Hartford Accident & Indemnity Company, 281 So. 2d 724 (La. 1973) held that if the pleadings factually allege a solidary liability, which would have interrupted prescription, a plea of prescription should not be sustained at a preliminary hearing in the absence of controverting evidence. Suit against either an employer or employee will interrupt prescription as to the other. Foster v. Hampton, 381 So. 2d 789 (La.1980). Also see Carona v. State Farm Ins. Co., 458 So. 2d 1275 (La.1984) and LSA-C.C. art. 1803. There is solidary liability under the uncontroverted allegations of the petition. Additionally, plaintiff introduced a certified copy of the first suit in this suit. No contrary showing was made.[1]

The judgments maintaining the plea of prescription are reversed and the matter is remanded to the trial court.

REVERSED AND REMANDED.

[1] This does not bar a later plea of prescription if trial on the merits does not establish solidary liability. Pearson, supra.