author: WESTERFIELD, Judge.'

text:
    COOPER et al. v. BLANCK.
    No. 9329.
    Court of Appeal of Louisiana. Orleans.
    Dec. 10, 1923.

       Eurnished by the Court for publication March, 1949.

   WESTERFIELD, Judge.'

This is an action ex delicto under Article 2315, Revised Civil Code. The plaintiffs, Mr. and Mrs. Cooper, allege that they were tenants of the defendant under a written lease, occupying the premises No. 1642 Elysian Fields Street, in this City, belonging to the defendant; that during the term of their lease Mrs. Cooper while lying in bed in the leased premises was injured by falling plaster from the ceiling of the bed room, striking her in the abdomen causing her to suffer great pain and anguish and causing the premature birth of a child with which Mrs. Cooper was then pregnant some eight months. The child lived several days and it is alleged died as a result of the prenatal injuries inflicted upon it by the falling plaster. Mrs. Cooper sues for damages in the sum of $5,000 as compensation for the pain and suffering she experienced and Mr. and Mrs. Cooper sue ,(a) “for the suffering endured by their said child previous to its death” and (b) “for the mental anguish, suffering and pain caused to them by the death of their child” in the sum of $10,000.

An exception of no cause of action was filed by defendant and prior to the hearing of the exception plaintiffs filed a supplemental petition, in which the claim asserted on the part of the husband and wife jointly is further elaborated by the following allegation “that at the time Mrs. Cooper was injured she had been pregnant for eight months; that the falling of the plastering on her stomach caused the subsequent death of her said child; and that she and her husband suffered as damages through the loss of said child, the companionship, support, love and affection which they had the right to expect from said child.”

Upon the trial of the exceptions the judge a quo held that there was a cause of action as to -the claim of the mother for injuries sustained iby her and overruled the exception to this extent, 'but that as to the claim of the father and mother jointly, there was no cause of action and maintained the exception to that extent.

From this ruling of the Court the plaintiffs have appealed and there is therefore before us for consideration the question of the right of the father and mother to recover under Article 2315 of the Revised Civil Code for (a) the suffering caused their deceased child as having survived to them and (b) for the death of their'said child as having been conferred upon them directly under the terms of the Article.

It is to be observed that Article 2315, Revised Civil Code confers upon parents two distinct causes of action for the death of their children. They may sue for the suffering experienced by the child or in other words such action as the child itself might have brought had it survived the injuries which caused its death, and they may sue for the loss of the companionship, affection, support and comfort and other joys and satisfaction incident to parentage of which they have been deprived. The latter cause of action was conferred upon them by an amendment of the codal provision in 1884, as strangely enough the law previously had refused to put a value upon human life.

Justice Manning in the case of Van Amburg v. Railroad Company, 37 La.Ann. 650, 651, 55 Am.Rep. 517, in referring to the Act of 1884, observed: “The second item of damage cannot be considered. Legislation and jurisprudence have combined to perpetuate the extraordinary doctrine that the life of a free man cannot be made the subject of valuation, and under the domination of that dogmatic utterance, made earlier than the Roman Digest, reproduced therein, and echoed by the courts of all countries from then till now, the singular spectacle has been witnessed of courts sanctioning damages for short-lived pains and refusing them for a long-life sorrow and the pecuniary losses consequent upon the death of one from whom was derived support, comfort and even the necessary stays of life. Legislation has at last come to the relief of future sufferers. The act of 1884 applies the remedy that the public conscience has long remanded, hut it has missed application to this case only by a few days.”

So far as the present case is concerned the two causes of action are closely related, perhaps inseparably so, and we will discuss them together.

If the child had been injured subsequent to its birth, no matter how soon thereafter, and had died from the effects of such injury, no matter how short its span of life, there could be no doubt that its parents could have maintained an action against the party responsible for its injury, and in view of the writer of this opinion, at least such action might be based upon the damages done the child, the right of action for which survived to the parents, as well as the damages to themselves as parents because of the death of their child.

The question for consideration here is therefore whether the fact that the injury was inflicted .prenatally alters the situation. In other words, when, in contemplation of law, does life begin. Is it at the time of conception of the mother, as an ovum or at a more advanced stage of pregnancy, as an embryo, or' when nearing the final stage of pregnancy as a foetus or only when physically separated from the mother by birth.

Considered from a physiological standpoint the stage of pregnancy at which the foetus may be said to be viable, has not been definitely established.

In Wharton & Stifle’s Medical Jurisprudence, Vol. 3, at page 35, Chapter 63, we find the following: “As to the early limit of pregnancy, we have again two points to consider: The first, as to what is meant by being born alive, and the second, as to viability. To the medical man the fetus still unborn is alive, so that an abortion at any period might produce a live fetus. From a legal point of view, if we take voluntary or reflex independent motion as a criterion of life, there is nothing much more definite to guide us.”

The Author then quotes from Berthod: Wharton & Stifle’s Medical Jurisprudence, Vol. 3, at page 35.

“ ‘Dans certains cas les embryons ou les foetus expulses par avortement donnet des signes evident de vie et si par hazard l’oeuf est reste intact, on les voit s’agiter dans le liquide amniotique; nous avons meme recueillis une observation de ce genre dans un cas de grossesse gemellaire. Les foetus de quatre mois restent quelquefois plus d’une demihe'ure sans respirer; on peut alors suivre facilement les battements du coeur et ceux-ci se ralentissent des que le foetus se refroidit, ils s’accelerent quand on le rechauffe. Aussi lorsque ces foetus sont menaces d’une mort imminent par suite de refroidissement qui les envahit, on peut les ranimer et prolonguer leur vie en les plongeant dans un tasse d’eau a la temperature de 37-40 C., ainsi que nous avons en plusieurs fois ¡’occasion de le faire.

“ ‘Au cinquieme mois les enfants res-pirent, mais d’une facón si incomplete qu’ils ne tardent pas a succomber. A la fin du sixieme mois la respiration s’etablit et les enfants peuvent vivre pendant plusieurs heurs et meme plusieurs jours.’ ”

From the same authority we give the following interesting account, of a child prematurely born as a result of the mother’s miscarriage 144 days after conception, or less than five calendar months. “ ‘It breathed with a kind of convulsive gasp at intervals of one or two minutes. The heart beat regularly for forty-five minutes. The child repeatedly opened its mouth, and thrust forward its tongue.’ It measured (it was a female) ten inches in length, and weighed fourteen ounces. The integuments were, for the most, part, firm, and of a light color; the portion covering the abdomen was thin and of a reddish hue. The hair of the head was like down, the rudiments of the nails were plainly discernible, and the iris was entirely closed with the membrana pupillaris. The head was tolerably firm, but the frontal and the parietal bones were imperfect and widely separated. Dating from the first intercourse after the previous miscarriage, the age of the child was 144 days, or less than five calendar months.” (Wharton & Stille’s Medical Jurisprudence, Vol. 3, at page 36.)

While the earliest period at which a foetus may be said to be viable, is still a matter of considerable doubt, the medical authorities expressing the opinion that the controlling factor is the weight of the embryo, the fact that the foetus is in an advanced stage of pregnancy, viable and in fact possessed of prenatal life is indisputable.

“That infants born one or two months before term have been reared to adult life is doubted by no one. And with the introduction of artificial feeding and warmth, the age of viability has been lowered remarkably in the last few decades. Berthod, in his thesis to the University of Paris in 1885 (Les Enfants nes avant Terme. La Conveuse et law Gavage), gives the following table:

“Months of . "Intrauterine Number of Cases Born. Per Cent Alive on Discharge
“Life. from Hospital.
“6 14 30
“6.5 34 53
“7 77 63.7
“7.5 84 78.7
“8 177 85.9
“8.5 107 91.6“

Wharton & Stille’s Medical Jurisprudence, Vol. 3, p. 38)

From the foregoing table it appears that infants who for one reason or another have been forced to make their appearance in the world before the time which nature, in its wisdom, appointed, have been reared to adult life and that beginning with the sixth month of pregnancy, where according to the authority we have just quoted, the percentage is thirty, each day of gestation thereafter increases the chances for life until the final stage of normal gestation, when 91 6/10 per cent, of infants prematurely born have the same chance of normal life as an infant normally born.-

The law from the earliest times recognizes a distinction between offences committed against a living child en ventre sa mere and the embryo of a child which has not attained the stage of development at which it could be said to be living. The biblical expression “quick” as meaning “alive” or “living”' is used by the earlier writers. “And he commanded us to preach unto the people and to testify that it is he which was ordained of God to be Judge of quick and dead.” (Acts 10-42)

In State v. Cooper, 22 N.J.L. 52, 51 Am. Dec. 248, the learned author of the opinion thus reviews the ancient common law. 22 N.J.L. pages 54, 55:

“There appears to be at the common law a distinction equally well settled between the condition of the child before and after the mother is quick. “Life,” says Blackstone, ‘begins in contemplation of law as soon as an infant is able to stir in the mother’s womb.’ 1 Bl.Com'. 129.
“It is not material whether, speaking with physiological accuracy; life may be said to commence at the moment of quickening, or at the moment of conception, or at some intervening period. In contemplation of law life commences at the moment of quickening, at that moment when the embryo gives the first physical proof of life, no matter when it first received it.
“The offence of procuring an abortion seems, by the ancient common law writers, to be treated only as an offense against life. Thus Coke says, ‘If a woman be quick with child, and by a potion or otherwise killeth it in her womb, or if a man beat her whereby the child dieth in her body, and she.is delivered, this is a great misprision, but no murder.’ 3 Inst. SO. It was anciently holden that the causing of an abortion by giving a potion to, or striking a woman big with child, was murder; but at this day it is said to be a great misprision only,, and not murder, unless the child be born alive, and die thereof. 1 Hawk.B. 1. c. 31, sec. 16.
“If a woman be quick or great with child, if she take, or another give her any potion to make an abortion, or if a man strike her, whereby the child within her is killed, it is not murder nor manslaughter by the law of England, because it is not yet in rerum naturae, though it. be a' great crime, 1 Hale’s P.C. 433; If a womán be quick with child, and by a potion or otherwise killeth it in her womb, or if any one beat her whereby the child dieth in her body, and she is delivered of a dead' child, this, though not murder, was by the ancient law homicide or manslaughter. ' But the modern law doth not look upon this offence in quite so atrocious a light, but merely as a heinous misdemeanor. 1 Bl.Com. 129.
“In two of these authorities (Hale and Hawkins) the-term ‘big’ or ‘great’ is obviously used as tantamount, to ‘quick’. ' In-all of them, the authors are treating of the crime of murder, of the offence against human life; and they distinguish between the destruction of the life of the infant before and after birth. There is in non», of them a reference to the mere procuring of an abortion by the destruction of a foetus unquickened, as a crime against the person or against God and religion.”

We quote from an early statute, Revised Statutes of 1829 of the State of New York, Secs. 8 and 9, Vol. 2, p. 661:

“Sec. 8. The wilful killing of an unborn quick child, by any injury to the mother of such child, which would be murder if it resulted -in the death of such mother, shall be deemed manslaughter in the first degree.
“Sec. 9. Every person who shall administer to any woman pregnant with a quick child, any medicine, drug or substance whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purpose, shall be deemed guilty of manslaughter in the second degree.”

In a statute of Connecticut of 1838 we find the following, Sect. 15, pp. 145 and 146: “Sect. 15. Every person who shall wilfully and maliciously administer to, or cause to be administered to, or taken by, any woman, then being quick with child, any medicine, drug, noxious substance, or other thing, with an intention thereby to procure the miscarriage of any such woman, or to destroy the child of which she is pregnant; or shall wilfully and maliciously use and employ any instrument, or other means to produce such miscarriage, or to destroy such child, and shall be thereof duly convicted, shall suffer imprisonment in the Connecticut State Prison for a term not less than seven, nor more than ten years.”

In Clarke v. State, 117 Ala. 1, 23 So. 671, 67 Am.St.Rep. 157, it was held that “Where a child born alive afterwards dies by reason of bruises inflicted on it, before birth, by the beating of its mother, the offense is murder.”

The author of the opinion in this case quotes the following from Blackstone: (at p. 674): “When a child, having been born alive, afterwards dies, by reason of any potion or bruises it received in the womb, it seems always to have been the better opinion that it was murder in such as administered or gave them.”

The statement was made in argument that the question presented here is res nova in this State and we have been directed to no civil law authority. It is claimed that the decisions of the common law States are unanimous in denying recovery for damages to children en ventre sa mere. This is perhaps true as a consideration of the following cases to which we have been referred, would indicate. Allaire v. St. Luke’s Hospital, 184 Ill. 359, 56 N.E. 638, 48 L.R.A. 225, 75 Am.St.Rep. 176: Dietrich v. North Hampton, 138 Mass. 14, 52 Am.Rep. 242; Buel v. United Rys. Co., 248 Mo. 126, 154 S.W. 71, 45 L.R.A., N.S., 625, Ann.Cas.1914C, 613; Drobner v. Peters, 232 N.Y. 220, 133 N.E. 567, 20 A.L.R. 1503.

We select from the foregoing authorities for discussion the case of Allaire v. St. Luke’s Hospital, not only because it is perhaps the best considered case but also because of an important dictum of the majority opinion and an able dissenting opinion by Justice Boggs.

We quote the following from the majority opinion [184 Ill. 359, 56 N.E. 640]: “That a child before birth is, in fact, a part of the mother, and is only severed from her at birth, cannot, we think, be successfully disputed. The doctrine of the civil law and the ecclesiastical and admiralty courts, therefore, that an unborn child may be regarded as in esse for some purposes, when for its benefit, is a mere legal fiction, which, so far as we have been able to discover, has not been indulged in by the courts of common law to the extent of allowing an action by an infant for injuries occasioned before its birth.”

It is to be observed that the author of the opinion intimates that, he cannot accept the view of the civil law.

Justice Boggs in a very learned dissenting opinion thus refers to the point upon which the case was decided at 184 Ill., page 370, 56 N.E. at page 641, 48 L.R.A. 225, 75 Am.St.Rep. 176, “The argument is, that at the common law an unborn child was but a part of the mother, and had no existence or being which could be the subject-matter of injury distinct from the mother, and that an injury to it was but an injury to the mother; that in such case there was but one person, — one life, — that of the mother. A foetus in the womb of the mother may well be regarded as but a part of the bowels of the mother during a portion of the period of gestation; but if, while in the womb, it reaches that prenatal age of viability when the destruction of the life of the mother does not necessarily end its existence also, and when, if separated prematurely, and by artificial means, from the mother, it would be so far a matured human being as that it would live and grow, mentally and physically, as other children generally, it is but to deny a palpable fact to argue there is but one life, and that the life of the mother. Medical science and skill and experience have demonstrated that at a period of gestation in advance of the period of parturition the foetus is capable of independent and separate life, and that, though within the body of the mother, it is not merely a part of her body, for her body may die in all of its parts and the child remain alive, and capable of maintaining life, when separated from the dead body of the mother. If at that period a child so advanced is injured in its limbs or members, and is .born into the living world suffering from the effects of the injury, is it not sacrificing truth to a mere theoretical 'abstraction to say the injury was not to, the child, but wholly to the mother?”

This action is based upon Article 2315, Revised Civil Code which gives to the “child” a tight of action for personal injuries, which survives to the father and mother, and to the parents for, the loss of their, “child”. Our Civil Code, repeatedly refers to the unborn “child”.

Article 29:. “Children in the mother’s womb are considered, in whatever relates to themselves, as if they were already born; thus the inheritances which devolve to them before their birth, and which' may belong to them/ are kept for them, and curators are assigned to take care of their estates for their benefit.”

R.C.C. Art. 252: “If a wife happens to be pregnant at the time of the death of her husband, no tutor shall be appointed to the child till after its birth; hut, if it should be necessary, the judge may appoint a curator for the preservation of the rights of the unborn child, and for the administration of the estate which may belong to such child. At the birth of the posthumous child, such curator shall be of right the under-tutor.”

R.C.C. Art. 954: “The child in its mother’s womb is considered as born for all purposes of its own interest; it takes all successions opened in its favor since its conception, provided it be capable of succeeding at the moment of its birth.”

R.C.C. 956: “When the child is born alive, though it may have been extracted by force from its mother’s womb, suid may have lived 'but an -instant, provided the fact of its living be ascertained, it inherits the successions opened in its favor since its conception, and transmits them accordingly.”

R.C.C. 1482: “In order to be capable of receiving by donation inter vivos, it suffices to be conceived at the time of the donation.-

“In order to be capable of receiving by last will, it suffices to be conceived at the time of the decease.

“But the donations or the last will can have effect only in case the child should be born alive.”

The term children has been held to include a child en ventre sa mere. Heath v. Heath, 114 N.Car. 547, 19 S.E. 155. “A devise to children includes a child en ventre sa mere.” Swift v. Duffield, 5 Serg & R., Pa., 38, 39.

It is argued that the articles of the Code, which we have cited relate to the property rights of the unborn child and have no application otherwise. We find the articles referred to be located as follows: Art. 29 is found in Book I, under the title Persons, general, art. 252, also in Book I, title Persons, subtitle, Minors. Arts. 954 and 956 occur.in Book III, “Things” subtitle, “Of the Different Modes of Acquiring the Ownership of Things”, and under the title of Successions, art. 1482, in Book III under the subtitle of “Donations and Testaments.”

Article 29 which provides that children en ventre sa mere “are considered, in whatever relates to themselves, as if they were already born” is found in the first book of the Code, under the title “Of the Distinction of Persons.” It is true that the illustration -given in the article refers to successions, but we can not conclude that this is the only illustration of the effect of the article. Our present purpose in citing these articles of the Code is to show that under our system of law the foetus is constantly referred to as a “child”. Certain property rights are acquired at the moment of conception, hut a viable foetus capable of sustaining independent existence must, it seems to us, in the contemplation of the Civil Law, at least, be regarded as a child for the negligent killing of which an action can be maintained.

“Life”, said Blackstone, “begins, in contemplation of law, as soon as the infant is able to stir in its mother’s womb.” If the Common Law decisions are uniformly opposed to this view, or if, as was said -in the majority opinion in Allaire v. St. Luke’s Hospital, the doctrine of the Civil law and Ecclesiastical law has not been indulged in by the. Courts of the Common law, we cannot follow them in the application of principles of our law, which while it presents many analogies, is yet a distinct system. Perhaps there is tendency in this State to abandon some -of the doctrines of the Civil law long held sacred in the interest of the common law. An example of such tendency is the introduction of trusts by a recent Act of our legislature. Our courts and lawyers now glibly speak of trustees, cestui que trust, etc. The Counsel in this case in argument and in brief stated that in the absence of precedent in our law, it was our “duty” to follow the common law authorities.

Without commenting upon what seems to be the modern tendency in this respect, we content ourselves with the observation that the civil law is still the basis of our jurisprudence.

In the case of Stewart v. Arkansas Southern R. Co., 112 La. 763, 36 So. 676, where the Court was considering the question of whether fright occasioned by the negligence of another was properly an item in a claim for damages, a number of decisions of the common law were cited as stating the contrary view, but the Court said, 112 La. at pages 768 and 769, 36 So. at page 677: “Under our jurisprudence and special laws, we would not be justified if we were to adopt this simple rule. In our Code (articles 2315-2317) the wise precept of the Institutes of Justinian are incorporated in substance, to wit: ‘Juris praecepta sunt, alterum non laedere, suum cuique tribuere,’ and, as translated and inserted in our Code, its text looks to the liability for all damages.”

Under the title of Conventional Obligations, the Civil Code in Article 1934 paragraph 3 declares:

“ * * * Where the contract has for its object the gratification of some intellectual enjoyment, whether in religion, morality or taste, or some convenience or other legal gratification, although these are not appreciated in money by the parties, yet damages are due for their breach; a contract for a religious or charitable foundation, a promise of marriage, or an engagement for a work of some of the fine arts, are objects and examples of this rule.
“In the assessment of damages under this rule, as well as in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury, while in other cases they have none, but are bound to give such damages under the above rules as will fully indemnify the creditor, whenever the contract has been broken by the fault, negligence, fraud or bad faith of the debtor.”

In Lewis v. Holmes, 109 La. 1030, 34 So. 66, 61 L.R.A. 274, it was held that a disappointed young bride could maintain an action in damages against a milliner for failure to deliver a number of dresses in time for use on her wedding trip. The Court said, at 109 La. page 1034, 34 So. at page 68, 61 L.R.A. 274: “In gauging this disappointment of the bride the surrounding circumstances must, as a matter of course, be considered. And one of these is the fact that entertainments were planned, and that for want of the dresses these entertainments would have to be given up; and another is her humiliation in going to her husband unprovided with a suitable trousseau. We do not think that the amount of $575, fixed by the district judge, is excessive.”

It is argued that the English law known as Lord Campbell’s Act passed in 1846 was the first recognition of the right of action for death by wrongful act as surviving to any one, and that since our Statute of 1884 to the same effect which is now a part of Article 2315 was an adoption of that law, we should give great weight to the interpretations of the British Courts, in considering it. We are disposed to do so, at least as far as the British view is not inconsistent with our system of law. But we do not find the English authorities entirely agreed upon the principles controlling here, for example in the case of The George and Richard, 3 Adm. & Ecc. 466 decided in 1871 where it was held that a child en ventre sa mere could, if borne within due time, maintain an action for the death of its father drowned in a collision at sea, Sir Robert Phillimore in his decision, at p. 480, says: “I now approach the anxious and novel question of the right of the unborn child, of which the widow of Philip Noyes was pregnant at the time of the collision, to claim. There is no doubt that the law in many cases considers and protects the status of the unborn child. A bill may be filed in equity to restrain damages by a tenant for life where the infant, if born, would be the remainderman; so Mr. Justice Vaughn Williams observes on the subject of legacies to children: (1) ‘The leading principle is, that where a bequest is immediate to children in a class, children in existence at the death of the testator, and these alone, are entitled; amongst which children, en ventre sa mere, are to be considered.’ It has been argued, that the peculiar language of Lord Campbell’s Act requires the actual existence of the claimant as a condition precedent to a right of action. I am not of this opinion. Although, as has been said, twenty-five years have passed since Lord Campbell’s Act, and this particular question has not arisen for decision, it seems to have been considered in one case as. within the purview of this statute.” •

In Badie v. Columbia Brewing Co., 142 La. 853, 77 So. 768, our own Supreme Court held that a right of action survived to a child en ventre sa mere and that it could recover after its birth for the loss of its father, killed by the wrongful act oí another. This decision has an important bearing in the instant case for, as we see it, it presents the converse of the proposition we are discussing. If a child en ventre sa mere is in contemplation of law a separate entity, to the extent that a right of action survives to it for injury to its father inflicted during its gestation, why does not the right of action survive to the father for personal injuries to the child, inflicted prior to parturition? The statute Article 2315 provides that the right of action in the event of the death of the child shall survive to the father and in the event of the death of the father to the child in the same terms.

Our Code, art. 29, declares that children in their mother’s womb are, in whatever relates to themselves considered as if they were already born. This Article as it appears in the Code of 1870, is in the same language as it appears in the Code of 1825. In the Code of 1808 it is different. Under the title “Of the Distinction of Persons Established by Nature”, art. 7 reads as follows :

“Art. 7. Children in their mother’s womb, cannot be reckoned among the number of children, not even for the purpose of imparting to the father, the rights and advantages which the law may grant to parents on account of the number of their children.”
“Yet the hope that such children may be born alive, cause them to be considered, in whatever relates to themselves, as if they were already born; thus the inheritances which fall to them, before their birth, and which belong to them, are kept for them, and curators are assigned to take care of their estates for their benefit.”

It will be observed that the words of limitation found in the original text of the Article have been omitted and that since the adoption of the Code of 1825, children en ventre sa mere are considered both “in whatever relates to themselves.” The language used is of the most sweeping character.

The following definition of “whatever” we find in the Century Dictionary: “Of what kind or sort it may be; no matter what; any or all that; applied to persons and things: as, whatever person is appointed must be satisfactory to the court.”

It is suggested that because the illustration given in the article relates to successions, the article has no other application. We cannot adopt this view. If such had been the intention of the framers of the Code, the article would have read “whatever relates to their property rights” or some words would have been used importing qualification or limitation. We attribute the use of an illustration concerning property rights to the fact that such would naturally be the most frequent application of the principle and consequently would the more readily occur to the mind of the author.

If it be objected that there is no period of gestation mentioned at which the embryo may be said to be a child, we reply that we are now considering the case of a foetus which had advanced to the final stage of gestation, just prior to parturition, a stage of prenatal life, when all authorities, medical and legal, agree the foetus is viable.

Blackstone, as we have seen, places the beginning of life in a legal sense at the time when the child is able to stir in its mother’s womb, a much earlier period of prenatal existence.

It was under the ancient law and is now murder to cause the mother to- abort at this period, because the destruction of the child at this period, is a killing of the child. Killing imports death and death, life.

We think it manifest that injury to a child at this period is in contemplation of law, injury to a living child, for which the child if it survives its birth, may maintain an action under art. 2315 of our Code, and if the child be killed at this period, before its birth, we see no reason why its parents cannot maintain an action for the death of their child.

It is said that it is difficult to measure the extent of suffering the child experiences and the extent of loss the parents suffer, under these conditions. No doubt it is, but no more so than it is to value moral suffering, mental anguish, etc.

Moreover, mere difficulty in assessing damages resulting from a wrongful act does not prevent an award. It is the duty of the Courts to give such damages as will approximate the loss. Wall v. Hardwood Mfg. Co. 127 La. 959, 54 So. 300.

Under art. 1934 of our Code damages are not limited to pecuniary loss, but may be based upon the deprivation of some intellectual enjoyment, religious, moral or aesthetic. As we have seen a bride’s disappointment over the absence of dresses intended as a part of her trousseau, is properly the subject of damages ex contractu.

In O’Meallie v. Moreau, 116 La. 1020, 41 So. 243, damages were allowed because a picnic party were compelled to picnic at a place in Milneburg, other than the one they had reserved. The Court holding that they were entitled to compensation for “their disappointment, annoyance, vexation, and mortification”.

If the deprivation of intellectual, moral and aesthetic pleasure, a bride’s chagrin because of the absence of ceremonial dress, and the vexation and annoyance of a party of picnickers may be judicially determined, why, we ask, is there much difficulty in appraising the suffering of an infant injured en ventre sa mere and dying a few days after birth. The deprivation of what Blackstone calls the God given right to live, certainly equals in dignity and certainty of appraisement, the bride’s chagrin and the picnickers disappointment. And we surmise there can be no question in so far as the injury to a parent is concerned, that the loss of a child, whether in esse or in posse, far transcends any consideration of intellectual, moral or aesthetic pleasure. Parentage is the normal state of connubial felicity, and is frequently the sine qua non. The loss of the first opportunity to attain this great benediction may forever consign the spouses to a childless, loveless marriage.

The maternal instinct is one of the great elemental passions of life. Its gratification often marks the difference between a happy, peaceful and contented existence and a leaden footed march through life’s pathway, far sweeter than the music of the spheres, or the soft cadences of “An Aeolian Harp when swept by the fingers of the night wind” to the mother’s ears are the first plaintive notes of the “heir of all the ages.”

Our conclusion is that the parents, either or both of a child, whose death, three days aftr birth, is caused by the negligence of another, by reason of injuries inflicted before birth, and at an advanced stage of pregnancy of the mother shortly before parturition, have a right of action under Article 2315, Revised Civil Code, for damages as having survived to them and for the loss of their said child, as conferred upon them directly under the terms of the article.

We wish to acknowledge our indebtedness to Mr. Benjamin W. Kernan, for the very able brief filed in this case as amicus curiae, which has been of great assistance to us in the consideration of the novel question involved.

For the reasons assigned herein and stated in Johnson v. South N. O. L. & T. Co., Orleans No. 9048, see Louisiana and Southern Digest, the judgment of the District Court is annulled, avoided and reversed, and it is now ordered that this case be remanded for further proceedings, according to law and not inconsistent with this opinion. The costs of this appeal to be borne by defendants.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    RIPP v. PERRAULT (RADECKER, Intervenor).
    No. 19210.
    Court of Appeal of Louisiana. Orleans.
    March 14, 1949.
    E. J. Randle and S. A. Graziano, both of New Orleans, for plaintiff and appellee.
    Steeg & Morrison, of New Orleans (Melvin I. Schwartzman, of New Orleans, of counsel), for intervenor and appellant.
   PER CURIAM.

Plaintiff-appellee, J. M. Ripp, moves to dismiss the appeal taken by William P. Radecker, Jr., the intervenor and third opponent. A chronology of the proceedings in the lower court culminating in the appeal is as follows;

The plaintiff, alleging himself to be the holder and owner of a promissory note made and subscribed by Mack Perrault, which was secured by chattel mortgage, obtained a writ of seizure and sale under which the Civil Sheriff seized the mortgaged automobile.

Radecker filed an intervention and third opposition, alleging among other things that he bought the automobile on April 3, 1948, and was its lawful owner. He asserted that Ripp was not the holder of the note in good faith, and that the note had been paid or extinguished by confusion; that because of the seizure of the automobile, which was wrongful, he suffered certain damages. In the alternative, Radecker called in warranty several former owners of the automobile to defend his right and title thereto. Radecker prayed for an injunction prohibiting plaintiff and the Civil Sheriff from proceeding further under the writ, and for damages. He alternatively prayed that the former owners be cited under the call in warranty, and that he have judgment against them for the value of the automobile.

The lower court issued a rule directed to the plaintiff and the Civil Sheriff ordering them to show cause why a preliminary injunction should not be issued. Counsel for all parties consenting, the lower court issued a temporary restraining order against the Civil Sheriff enjoining, prohibiting, and restraining him from selling the automobile.

Upon a trial, the rule for the preliminary injunction was dismissed and the temporary restraining order was recalled.

The matter was ultimately tried upon its merits and the demands of intervenor and third opponent were rejected and injunc-tive relief was denied. On December 21, 1948, Radecker appealed suspensively and devolutively from the judgment. The day after the order of appeal was signed, Ra-decker suggested to the lower court that his appeal would be useless and ineffectual unless the sale of the mortgaged automobile was stayed pending the outcome of the appeal, and moved for a stay order, which the court refused to enter.

Several days after the transcript of appeal was lodged in this court, the Sheriff sold the automobile under the writ of seizure and sale.

The ground assigned for dismissal is that the correctness of the judgment appealed from is a moot question, because the appeal did not have the effect of staying the sale of the automobile, which has since .been accomplished.

The motion to dismiss seems to be well grounded. It is the function of an appellate court to render judgments that can be made effective, and not to give opinions on moot questions or abstract propositions from which no practical results can flow. When it is impossible for the appellate court to undo what has already been done, it will not determine the questions litigated in the court below, but will dismiss the appeal. The Supreme Court, in Pettingill v. Hills, Inc., 199 La. 557, 6 So.2d 660, 662, said:

“This principle is one of general application. It has been applied to sales under executory process where injunctive relief is sought and denied and execution of the judgment is not suspended by the appeal. Unity Industrial Life Ins. Co. v. DeJoie, 197 La. 38, 200 So. 813; Bank of La Fourche v. Barrios, 167 La. 215, 118 So. 893; Ouachita Nat. Bank v. Shell Beach Const. Co., 154 La. 709, 710, 98 So. 160.”

In Unity Industrial Life Ins. Co. v. DeJoie, 197 La. 38, 200 So. 813, 814, the Supreme Court reiterated what it said in the case of Bank of La Fourche v. Barrios et al., 167 La. 215, 118 So. 893:

“It is clear that the devolutive appeal taken herein by defendant did not suspend the execution of the writ of seizure and sale, under which the property mortgaged was seized on May 5, 1928, and adjudicated to plaintiff bank on June 23, 1928.
******
“Since any decree this court could render would not have the effect of annulling the sale of the mortgaged property after its adjudication to plaintiff bank, the issues here tendered by defendant present merely moot questions, which we decline to decide.”

The demand for damages and the call in warranty are matters incidental to the writ of seizure and sale, the validity of which cannot, after the sale of the property, either be inquired into or passed upon by us.

It is, therefore, ordered that the appeal be and it is hereby dismissed at appellant’s cost.

Motion sustained; appeal dismissed.


author: McBRIDE, Judge. ■

text:
    FRENCH v. T. S. C. MOTOR FREIGHT LINES.
    No. 18994.
    Court of Appeal of Louisiana. Orleans.
    March 14, 1949.
    Rehearing Denied May 9, 1949.

      Flanagan & Landry and Gerald S. Quin-lan, all of New Orleans, for plaintiff-appel-lee.
    St. Clair Adams & Son, of New Orleans, for defendant-appellant.
    Rosen, Kammer, Wolff, Hopkins & Burke, of New Orleans, for intervenor New Orleans Public Service, Inc.
   McBRIDE, Judge. ■

Plaintiff, who was a motorman operating a streetcar, brings this damage suit for $16,035 against T. ' S. C. Motor Freight Lines, a partnership, and its component partners, jointly and in solido, alleging that he was seriously" injured in a collision between the streetcar and a large tractor and trailer owned by defendants and driven by their employee, on April 3, 1945, at about nine o’clock in the evening.

The accident happened at the intersection of Magazine and St. Joseph Streets. The streetcar was travelling in an uptown direction on Magazine Street, which is a one-way street approximately forty feet in width, and the tractor and trailer (which we shall hereafter designate as the “truck”) was proceeding on the right-hand side of St. Joseph Street, a two-way street, out towards the lake. The front of the streetcar struck the right side of the truck, overturning it; the front vestibule of the streetcar was demolished. Plaintiff suffered physical injuries.

The petition alleges that the accident resulted from the negligence of the driver of the truck, chiefly because he did not stop, look, and listen, and did not give consideration to the prevailing circumstances before attempting to cross, but elected to gamble that he could beat the streetcar over the intersection.

The owners of the truck denied negligence on the part of their driver, and alternatively attributed the collision to the contributory negligence of plaintiff, charging, among other things, that he was operating the streetcar at a fast and negligent speed, and that he failed to see the truck in time to apply his brakes and avoid the accident.

The New Orleans Public Service, Inc., plaintiff’s employer, intervened, claiming that plaintiff’s injuries rendered it liable to him for workman’s compensation, some of which it had paid, and that under the provisions of Act 20 of 1914, as amended, it is the subrogee of plaintiff to the extent of its compensation liability. The inter-venor prayed for reimbursement, out of any judgment plaintiff may recover, for the payments made to plaintiff, together with medical expenses and a reasonable attorney’s fee, plus whatever future compensation it may be required to pay.

After a trial on the merits, plaintiff recovered judgment for $11,185; the inter-venor was decreed to be entitled to $1,000, plus attorney’s fees, “same to be paid by preference out of the award in favor of Harold C. French, plaintiff; and further that the intervenor’s liability for compensation shall, upon payment of the principal judgment to Harold C. French, plaintiff, cease for such part of the compensation due under the Employers’ Liability Act of Louisiana, computed at six percentum (6%) per annum, as shall be satisfied by such payment.” The fee of one of the medical experts was taxed as costs against the defendants, who have taken this suspensive appeal from the judgment.

The record abounds with divergent opinions as to speed and distances, and there is much disagreement as to the vital and material question of how far the streetcar was from St. Joseph Street when the truck reached the car track.

It is conceded, at any rate clearly proved, that the truck did not come to a full stop before crossing the car track. The testimony of Guidry, the driver, who was defendants’ employee, is that he started with a heavy load from the T. S. C. terminal, which is located approximately a half block from Magazine Street, and travelled in second gear at about six miles an hour to Magazine Street, where, because of the ¡blind corner and vehicles parked along the curb of Magazine Street, he nosed out to within three or four feet of the riverside car rail and there came “almost to a stop” a “momently stop” which is “just as good as a stop.” He noticed the streetcar about ISO feet away travelling at a speed which he could not judge, but believing he could make it across the track safely, started forward at about four or five miles an hour. He never saw the car again until the impact, and at no time did he hear the sound of its gong.

Guidry stated that the truck was hit at about the spare tire, which is located just in front of the rear wheels of the trailer.

On the other hand, French, the motorman, testified that after having made a service stop at Julia Street he continued up Magazine Street, and that when his car was about fifty or sixty feet.from St. Joseph Street he noticed the truck, which had just reached the property line, coming into Magazine Street at about twelve or fifteen miles per hour, and that it made no stop; his own speed was then about eighteen or nineteen miles an hour. He immediately cut off the power, applied the emergency brakes, and sounded the gong, but his stopping distance was not sufficient and the car struck the trailer about five feet from its front end.

Several passengers on the streetcar testified for plaintiff. Their attention was attracted by-the loud clanging of the streetcar gong, causing them to look up and notice the conditions existing at the intersection.

A Mr. and Mrs. Kirby J. St. Romain occupied the left front seat of the streetcar. St. Romain stated that when he first saw the truck it was about thirty or forty feet from the car track, coming from the left at about twenty or twenty-five miles an hour; and that the streetcar was then about thirty or forty feet from the intersecion. However, on cross examination, the witness testified that he was in error in stating that the truck was thirty or forty feet from the car track when he first saw it, but that it was “pretty close to the front-end of the car.” Mrs. St. Romain noticed the truck coming from the left crossing Magazine Street at a moderate speed, and that it had not yet reached the car track. She fixed the distance the car was from the intersection as that from the witness chair to the rear wall of the courtroom (which measures forty-three- feet, two inches). Her impression was that the car struck the truck at a point between the tractor and the trailer.

Another passenger, Robert D. Brown, Jr., who occupied a seat on the right-hand side towards the rear of the streetcar, stated that when the car was 100 to 115 feet from St. Joseph Street he looked up upon hearing a loud gonging and saw the truck moving at “normal” speed; that it was about two and one-half feet beyond the sidewalk curb at that time, but it continued onward and was struck about eight feet from the right rear wheel.

James Weber, who was seated at about the center on the right-hand side of the streetcar, testified on' direct examination that he looked up and saw the truck coming out into Magazine Street, and that it was “all the way out.” This testimony he later changed by saying that the truck was “just starting to come out St. Joseph Street” when he first observed it, and that no part of the truck was on'the track. He placed the streetcar at fifty feet from the corner when the gong sounded, and thirty feet away when he observed the truck “just creeping out.” On cross examination, the witness persisted in this testimony until there was read to him a statement which he had given and signed on the night of the accident while still at the scene, to the effect that the streetcar was about a half block from the intersection when he first saw the truck. He retracted his testimony and asserted that the recitals contained in the written statement are correct.

The conductorette, Thais Reilly, looked up when the gong was violently clanged, and “the car was close to the intersection.”

Besides Guidry, the defendants produced two of their employees as witnesses. Savoy stated that he had just left the terminal, was walking back St. Joseph Street on his way home, and had crossed Magazine Street. He noticed the truck starting across, and at the same time saw the car a half block away. Riggio, defendants’ night mechanic, was standing on the uptown-river corner of the intersection, but did not see the car or the truck before the accident, and paid no attention to either vehicle before the impact. The gist of his testimony is that he is sure the truck stopped before it attempted to cross the track, because he heard the sound of its air brakes being applied, followed by the sound of the truck starting off. .

Magazine Street, by virtue of the streetcar 'line thereon, is a right-of-way street under the traffic ordinance, and all vehicles are required to come to a full stop before crossing. Ordinance 14,104, C. C. S., adopted May 9, 1934, which amends paragraph (b) of Section 2 of Article VII of Ordinance 13,702, C. C. S., provides: “Section 2.(b) Every operator of any * * * vehicle * * * on any street intersecting any other street, on which street cars or trains are routed by any Ordinance of the City, shall come to a full stop where the street on which they are travelling meets the prolongation of the nearest property line of such other street they are about to enter or cross, and shall listen and look for approaching street cars and trains before crossing or turning into said street, * *

We experience little difficulty in concluding that Guidry was guilty of negligence in attempting to drive the truck across the car track under the circum-tances prevailing when the attempt was made. The trailer and tractor had an overall length of forty-three feet and was heavily laden, weighing some 35,000 pounds including the freight load. The traffic rule emphatically enjoins the driver of a vehicle, before crossing a' street having a car' line, to first stop, look, and listen. Guidry admits that he did not come to a stop. ■ Considering the character of his vehicle, we believe that had he been a reasonably prudent person caution would have dictated that a literal compliance with the provisions of the ordinance was necessary. What we said in the case of Arena v. Morris & Co., 14 La.App. 563, 130 So. 565, 566, is pertinent-here: “The traffic ordinance requiring a vehicle approaching a right of way street to come to a full stop must be observed literally; it will not be sufficient to slacken speed.”

Appellants argue that the fundamental error committed by the trial judge lay in his failure to give consideration to the plea of contributory negligence, to which we now advert.

It is well settled that contributory negligence is a defense which must be specially pleaded to warrant its consideration, and that the defendant carries the burden of proving the allegations relied upon by him. Gaiennie v. Cooperative Produce Co., 196 La. 417, 199 So. 377; Whittington v. Western Union Telegraph Co., La.App., 193 So. 498, 499; Althans v. Toye Bros. Yellow Cab Co., La.App., 191 So. 717.

The motorman estimated the speed of the streetcar at eighteen or nineteen miles per hour. Sidney S. Gale, the superintendent of maintenance of the New Orleans Public Service, Inc., was produced as a witness by plaintiff, and estimated from a map of the public service company that the distance from Julia Street, where the car had last stopped, to the property line of St. Joseph Street, was about 575 feet. The witness stated that if the motorman had atcained a speed of eighteen or nineteen miles an hour before reaching St. Joseph Street, he would have had to be “notching as fast as he could.”

Counsel contends that a streetcar has no preferential rights at a crossing, and that French was negligent in operating his car toward St. Joseph Street, a much travelled crossing, at a dangerous speed without being on the alert and having the car under control so as to be able to avoid a collision with a vehicle traversing the intersection.

We are referred to Bacon v. New Orleans Public Service, Inc., 18 La.App. 96, 137 So. 213, 866, wherein this court held that in the absence of a city ordinance, both streetcars and motor vehicles have-equal rights at crossings. The cited case is not apposite, as it was decided in 1931 before the advent of the amendment to Ordinance 13,702, C. C. S. The ordinance as amended now unmistakably grants a streetcar the right of way.

As we view the case, the plea involves a determination of only two questions: how far was the streetcar from St. Joseph Street when the truck came into view? and, was the motorman alert?

As stated before, there is a divergence in the witnesses’ opinions, and in the estimation of distances there is great variance. The motorman, the St. Romains, and the conductorette placed the streetcar close to the intersection when the truck came out into St. Joseph Street. Weber’s conflicting and confused statements are not at all helpful. On the other hand, Guidry, the truck driver, and Riggio placed the streetcar at a half block, or about 150 feet, away. The trial judge, in his reasons dictated into the record at the conclusion of the trial, made the observation that the testimony of the plaintiff witnesses impressed him, and particularly the testimony of Mrs. St. Ro-main and Brown. However, the latter did not quite agree with Mrs. St. Romain; he stated that the car was about 100 to 115 feet from the corner when he looked up because of the loud ringing of the gong. We think the discrepancy can be easily understood. The streetcar is about forty-seven feet in length, and Brown was sitting on the right-hand side towards its rear, which point of vantage was not as good as that of Mrs. St. Romain, who was occupying the front left seat. In view of Brown’s position, it is obvious that it would have been difficult for him to know with exactness how far the front of the car was from the intersection.

The brakes of the streetcar, according to the testimony of the motorman and two other employees of the public service company, were in good working condition. According to one witness, a brake inspection is made once each week.

Gale also testified as to the operation of a streetcar and maximum stopping distances. At a speed of twenty miles an hour, a “900” type car, such as was involved in the collision, cannot be brought to a stop in less than 133 feet, and at eighteen miles an hour the stopping distance would be 110 feet. If travelling at fifteen miles an. hour, the car could be stopped in ninety feet.

The, trial judge mentioned that Guidry, who -lives in Lafayette, Louisiana, .did not appear to be too intelligent or familiar with the streets of New Orleans and the traffic regulations. Upon a consideration of Gui-dry’s testimony, we quite agree with this appraisal. Guidry himself admits indifference; after he took the first look at the streetcar he gave no further heed to it, and states that he did not hear the sound of its gong, although the motorman and the passengers in the car were emphatic that the bell was clanged violently.

After carefully sifting and analyzing the evidence, it is our, opinion that when the ponderous truck started across the track the streetcar was in close proximity, and that there was insufficient space to permit the motorman to bring it to a stop in time to avert the accident. All passengers who testified corroborated French’s statements that he remained at the controls until the moment of the impact, cutting off the power and applying the brakes, and though the speed was reduced, the car struck the truck.

Counsel points to testimony given by Brown and the conductorette to the effect that before French pounded the gong with considerable force they heard it being tapped lightly, and argues that this would indicate that instead of applying his brakes immediately upon seeing the truck, the motorman tapped the gong lightly and did not utilize the brakes until afterward when a collision appeared imminent. This is theory only, as we find no evidence in the record supporting it. French testified that he simultaneously violently clanged the bell, cut off the power, and applied the brakes at his first view of the truck.

We think that Guidry’s utter disregard of the ordinance, and his recklessness in attempting to cross Magazine Street without bringing his large vehicle to a full stop and surveying carefully the prevailing traffic conditions, can be pointed to as the sole cause of the collision. We fail to see that the motorman was guilty of any act of commission or omission proximately contributing to the accident. It seems that he used every means possible to stop his car upon seeing the truck coming into Magazine Street We do not think defendants have met the 'burden imposed upon them by their plea.

Counsel for defendants cited several cases, each of which can without difficulty be distinguished from the one under consideration. In Boylan v. New Orleans Ry. & Light Co., 139 La. 185, 71 So. 360, 363, Ann.Cas.1918A, 287, the Supreme Court held a motorman to be guilty of negligence in running a streetcar into a fire engine. The motorman’s negligence was expressed as follows: “The motorman was not careful; he did not see the truck'when he ought to have seen it. He was disobeying the rules of the company a moment before the accident happened, as well as the state statute and a municipal ordinance; and he was running the car across a very busy street at a very high rate of speed.”

In Bacon v. New Orleans Public Service, Inc., supra, we said the motorman was negligent in failing to observe a truck and keep it under surveillance, knowing that it must cross his path. He first observed the truck from a distance of 300 feet.

Counsel confidently relies upon Peterson v. New Orleans Ry. & Light Co., 142 La. 835, 77 So. 647. But there the motorman saw the other vehicle enter the intersecting street when the trolley car was about 200 feet from the crossing.

In Sparks Bros. & McGee v. New Orleans Ry. & Light Co., 5 Orleans App. 117, decided in 1908, we held a motorman negligent because he had ample time and space within which to stop the car or slacken its speed, so as to avoid running into a wagon, but failed to do so.

The plaintiff sustained painful and permanent injuries. He remained at -the controls of the streetcar up to the time of the impact and was knocked down and pinned on the floor beneath the wreckage when the front end of the car gave way. He was taken to the Charity Hospital and on the following day was removed to the Southern Baptist Hospital, in which institution he remained for a period of seven weeks. His whole body was black and blue from his ankles to his chest. His chest was strapped on both sides, and his left leg was placed in a cast from the ankle to twelve inches above the knee. The cast was not removed until just before he left the hospital. For three or four months afterwards he used crutches. Plaintiff visited the physician of the public service company twice each week between May and September, 1945.

Plaintiff testified that the company physician’s treatments were unavailing, and that he continued to experience pain and disability. He engaged Dr. George C. Bat-talora and visited him on January 9, 1946, for examination. The X-rays revealed evidence of a healed compression fracture of the external condyle of the upper end of the tibia of the left leg, which had united with some depression of the tibial plateau on the lateral side. The examination disclosed that there was an abnormal motion, indicative of some tearing of the supporting tendons. When standing, plaintiff was knock-kneed in the left leg. Dr. Battalora prescribed a special orthopedic shoe.

When plaintiff visited Dr. Battalora on June 6, 1946, atrophy in the left thigh was noticed. The circumference of the left thigh in its middle third was 20% inches; on the right leg it was 21% inches. Dr. Battalora stated that whenever a patient has a condition in the knee joint that produces pain, there is a disturbance of the blood supply to the muscles of the thigh, and atrophy occurs even • though the patient is attempting to use the limb. The left leg also showed crepitation, which is an audible or palpable grating sensation. Dr. Battalora was of the opinion that this type of condition causes considerable difficulty to a patient having to stand constantly. His belief was that plaintiff could not remain standing for more than a half-hour at a time. He estimated a twenty-five per cent disability in loss of use of the left leg.

French testified that the public service company refused to reemploy him as a motorman because of his condition, and that the injuries have prevented him from doing any other work, except when on one occasion he took a watchman’s job for a few days and earned $27.50. He is forty-two years of age, is married, and has three children depending upon him for support.

Dr. J. T. O’Ferrall, appearing for defendants, examined French during 1946 and again a few days before the trial. His testimony was confined to findings on the latter examination. The examination, accompanied by X-rays, revealed a fracture of the internal condyle of the femur, which he believed was either a fracture of the femur itself or a calcareous deposit within the lateral ligament. There was presence of some pronation of the left foot, but knee motions seemed normal. Dr. O’Ferrall found a ten or fifteen per cent disability, which was not so extensive as to prevent French from carrying on the duties of a motorman. This opinion was based on the doctor’s theory that motormen sit down a great deal of the time. He saw no reason why French could not stand for periods of about thirty minutes without difficulty.

Plaintiff, at the suggestion of the judge below, disrobed during the trial and the physicians examined him. That there is some disability is conclusive, as both doctors agreed to as much. The extent of the disability only was disputed.

Dr. O’Ferrall was positive that plaintiff’s condition could be corrected by the removal of a small bone in the knee, which is a minor operation requiring an incision of not more than an inch, with a convalescence period of about two weeks. French refused to submit to the suggested operation, on the ground that Dr. Battalora had advised him not to do so.

Defendants’ counsel, while conceding that an injured person cannot be compelled to undergo an operation, argues that the refusal to undergo an ordinary operation must be considered in assessing damages. He points to the case of Donovan v. New Orleans Ry. & Light Co., 132 La. 239, 61 So. 216, 48 L.R.A.,N.S., 109, wherein the court said that the science of surgery had made great progress and that surgical operations should not be looked upon with the horror they inspired in former years, and that where a plaintiff declines to undergo. a slight operation that fact must be considered as minimizing his chances of recovery.

However, we cannot disregard Dr. Bat-talora’s statements regarding the surgical procedure. He was positive that operations of the type suggested by Dr. O’Ferrall had not proved successful enough to warrant a patient taking a chance, and so advised French. We do not believe that plaintiff’s reliance on his own physician’s advice should militate against his right to recover.

Considering the testimony to the effect that a streetcar motorman is required to stand while operating the -car through the business district, and considering the fact that both physicians noted disability in the left leg which inhibits plaintiff from standing for long periods, our opinion is that he was unable, up to the time of the trial, to return to his former employment. It must be remembered too that plaintiff wears the special orthopedic shoe. In this case we do not agree with plaintiff’s counsel that French should be classified as being totally and permanently disabled from doing any kind of work. We are not concerned with the provisions of the Workmen’s Compensation Act, for the reason that the provisions thereof are not to be applied to this tort action. While French could not return to his former employment, nonetheless he is not so disabled that he cannot engage himself in other pursuits or fulfill the duties of other gainful occupations.

The ldwer court awarded plaintiff $11,185, but we have not been favored with an itemization. The evidence shows that plaintiff’s medical expenses amounted-to $35, and that his loss of salary (thirty-two months) amounted to $5,760. Believing that the trial judge allowed the above two items, $5,390 was undoubtedly awarded for the personal injuries. There is no doubt plaintiff’s injuries were painful and serious, and we cannot say that the amount allowed is excessive.

Defendants’ counsel cites a- number of cases in support of the argument that the judgment -is highly excessive. As has been stated on numerous occasions, there is no rule or standard for measuring damages to be awarded a plaintiff for personal injuries. Each case must stand on its own facts, and the facts which we glean from the record in this case fully warrant the affirmation of the judgment appealed from.

There is no complaint made insofar as the judgment runs in favor of New Orleans Public Service, Inc., French’s compensation debtor, for the amount of workmen’s compensation paid, attorney’s fees, and also for future compensation liability.

For the reasons assigned, the judgment appealed from is affirmed.

Affirmed.


author: McBRIDE, Judge.

text:
    COIN MACH. ACCEPTANCE CORPORATION v. ROBINSON.
    No. 19113.
    Court of Appeal of Louisiana. Orleans.
    March 14, 1949.
    Rehearing Granted May 9, 1949.
    Milling, Godchaux, Saal & Saunders (G. Henry Pierson, Jr., of New Orleans, of counsel), for plaintiff and appellee.
    Clem H. Sehrt and Edward J. Boyle, both of New Orleans, for defendant and appellant.
   McBRIDE, Judge.

Plaintiff filed this suit in the Civil District Court for the Parish of Orleans against defendant for $1,000, with interest and attorney’s fees, representing the amount due on an account. Defendant answered pleading payment. After a trial of the case on its merits, there was judgment in favor of plaintiff as prayed for, from which judgment defendant has taken this appeal.

The following facts are not disputed: During December, 1946, and January, 1947, the Robinson Distributing Company (of which defendant is the propi'ietor) was indebted to plaintiff on certain accounts numbered W-317, W-338, and W-339. It is not necessary to consider the last two mentioned accounts, as the same have since been paid in full. The records of plaintiff show that defendant still owes a balance of $1,000, with interest and attorney’s fees, on account W-317, which is the subject matter of the present suit.

During December, 1946, defendant, who was the holder and owner of certain promissory notes of one Carl Shaddock, payable to the Robinson Distributing Company and secured by vendor’s liens and chattel mortgages on movable property, negotiated or assigned said notes, “with recourse,” to plaintiff, Coin Machine Acceptance Corporation. The notes, in principal, aggregated more than $100,000.

Shaddock defaulted in payment, and Robinson, becoming apprehensive because of his own liability on the notes, requested plaintiff to foreclose on the chattel mortgages. Plaintiff advised defendant that it would be willing to proceed against Shaddock, if defendant would deposit $1,~ 000 to be applied to the expenses of the foreclosure, including attorney’s fees. Plaintiff was given to understand that Robinson was anxious to have the proceedings instituted as quickly as possible, because Robinson knew, of a buyer in Shreveport who was willing to take the mortgaged property for a price in excess of the amount due on Shaddock’s notes, but that the prospective purchaser would not wait indefinitely. Plaintiff promised to institute the proceedings in a few days.

On December 27, 1946, Robinson sent plaintiff a check, accompanied by a communication reading in part as follows:

“We are enclosing our check for $1000 as partial payment to indemnify you against any losses or expenses incurred in your foreclosure proceedings against Carl Shaddock, doing business as the Shreveport Novelty Company.”

On January 3, 1947, plaintiff advised Robinson that it would do everything it could to “hold down” the legal expenses, and that plaintiff was submitting the Shad-dock matter to its Chicago counsel for transmission to a New Orleans attorney for attention. On January 23, 1947, the Chicago attorneys ultimately dispatched the claim to Mr. Arthur F. Babin, Jr'., an attorney of New Orleans, who, however, did not accept the employment until January 29, 1947.

On January 28, 1947, Robinson became impatient over the delay and addressed a communication to plaintiff reading as follows :

“On December 27, we sent a thousand— dollar check to Mr. Fiorda, which was to have been partial fee for the risky Shad-dock foreclosure in Shreveport. Will you please apply that $1000 against our account W-317? Thanking you, we are, yours very truly, Robinson Distributing Company.”

No foreclosure or other proceedings were ever instituted, because on February 7, 1947, Shaddock made a dation en paiement to plaintiff of the movables on which the chattel mortgages rested, in full settlement of the indebtedness on the notes. Mr. Babin’s bill for fees and expenses amounted to $1,722.93, which was paid by plaintiff.

The sole question involved is whether the plaintiff is entitled to the $1,000 as a payment on the Shaddock notes, or whether Robinson had the right to require its application to account W-317, as directed in the communication of January 28, 1947.

Briefly, plaintiff’s argument is that Robinson, in making the advance 'of $1,000, specifically imputed it to the Shaddock indebtedness, upon which he was secondarily liable, and that he could not afterward validly direct plaintiff to apply the money to any other account. Counsel say that a debtor specifying the account to which a payment is to be imputed has no legal right to change the application of the payment.

In support of his contention, counsel cites several codal articles and authorities, none of which are deemed applicable to this case.

We cannot agree with counsel that the thousand dollars was intended to be an unequivocal payment on the Shaddock indebtedness. The letter of transmittal recites that it was a “partial payment to indemnify you against any loss or expenses incurred in your foreclosure proceedings,” and there is nothing in the record to indicate that either of the parties, at the time, considered that the money would serve other than as a deposit meant to indemnify plaintiff against loss by reason of legal expenses. It was brought home to plaintiff that speedy action was necessary, and plaintiff promised full cooperation and demanded the $1,000 to protect it for expenses. Of course, plaintiff, being the holder of the notes, could have taken its own time in instituting proceedings, but when we consider the circumstances under which the deposit was made by defendant, we conclude plaintiff owed him the duty and obligation of instituting proceedings within a reasonable time, so that defendant could have protected himself by disposing of the property to his advantage. The impatience shown by Robinson because of the delays can readily be well understood; according to his testimony, he called plaintiff’s Chicago office on several occasions by long distance telephone complaining of plaintiff’s lack of cooperation. The last call was made on January 28, 1947, up to which date the local attorney had not even accepted employment. This last call was unavailing, as plaintiff gave defendant no satisfaction whatever.

We think that a delay of thirty days was unreasonable and not in accord with the specific understanding under which the' money was sent to plaintiff, and our opinion is that Robinson had the absolute right to abrogate his indemnity agreement and to require that the $1,000 be imputed to account W-317.

Defendant has- made out his plea of payment, and, accordingly, the judgment appealed from is reversed and plaintiff’s suit is dismissed at its cost.

Reversed.


author: REGAN, Judge.

text:
    DEUTSCH v. FABACHER et al.
    No. 19029.
    Court of Appeal of Louisiana. Orleans.
    March 14, 1949.
    Writ of Certiorari Denied April 25, 1949.
    Samuel J. Tennant, Jr., of New Orleans, for appellant.
    Deutsch, Kerrigan & Stiles, of New Orleans, for appellee.
   REGAN, Judge.

We were persuaded that the reasoning employed by us in obtaining the conclusion reached in our original opinion, 37 So.2d 726, may have been fallacious and, therefore, we granted a rehearing.

Plaintiff maintains that the issues which we must determine on rehearing are as follows:

1. “Whether any of the articles have been sold at auction by Fabacher?

2. “Whether there was any agreement between plaintiff and Fabacher as to a minimum price for which any of the articles should be sold at auction?

3. “Whether the court should not decree that all of the articles which have not been sold must be returned to plaintiff by defendant within five days; and that if defendants fail to comply with that decree, there be judgment against defendants and in favor of plaintiff for the value of the articles ?”

We are of the opinion that our original decree answered the first two questions posed by the plaintiff.

Relative to the third question propounded, plaintiff contends that “this aspect of the case is governed by a direct precedent in the decision of this court in the case of Steckler v. Spicuzza, La.App., 132 So. 382.”

We are unable to agree that “this aspect of the case is governed” by the case cited above. A casual reading of that case indicates that it is obviously distinguished from this case on the “facts”.

In the Steckler case, plaintiff sued the defendant auctioneer for the value of three specific articles, to-wit:

One antique Japanese dresser, Ni O
One oil painting ‘Old Salt/ -6* ^ O
One shadow picture, O

Defendant conceded his liability at least to the extent of $20.00 for the two pictures. As to the antique Japanese dresser defendant claimed that he was unable to effect a sale because of the limit placed thereon by plaintiff, and that he, therefore, placed it in a public warehouse "where it still remains.” (Italics ours.)

In the Steckler case we said:

“It is true that the evidence shows conclusively that for a long time plaintiff endeavored to obtain from Spicuzza (auctioneer) either the return of the dresser or information as to where it could be located, and that he was unsuccessful in these attempts.”

In conformity with this evidence we rendered judgment jin plaintiff’s favor ordering the return of the dresser within five days or alternatively that plaintiff be given the value of the dresser — $200.00.

It is apparent that these “facts” distinguish this case from the one now under consideration, as we shall prove. In the present case plaintiff’s petition itemized the articles upon which the suit was based, and during the course of the trial plaintiff offered in evidence another itemized list of the articles delivered.to the defendant auctioneer by plaintiff’s wife, which did not agree with plaintiff’s own list contained in the petition — nor did either of the itemized lists of the articles in, question agree with the defendant’s consignment book, wherein were listed the articles which defendant acknowledged he had received from plaintiff’s wife. Therefore, in view of the inconsistencies obviously manifested by virtue of these “itemized lists”, we said “plaintiff’s right to sue for the return or the value of the unsold articles retained in the possession of the defendant is reserved”. The judgment in Steckler v. Spicuzza, supra, with reference to the Japanese dresser was based on the undisputed fact that the defendant auctioneer was deliberately and unjustifiedly withholding from plaintiff, -a specific and completely described article.

It was our confirmed opinion in our original decree, and is now, that there exists much doubt as to which specific articles belonging to plaintiff are in the possession of defendant. We are of the opinion that the following testimony of plaintiff’s wife is illustrative of this “doubt”:

“Q. Did you get a receipt for all of the things you delivered to Mr. Fabacher for sale? A. No, and that is what I kept asking for every time I went there. When Mr. Barnes came up to the attic I said ‘I haven’t a complete or accurate list of these things, give me a list of the contents/ and he said ‘Don’t worry, Mrs. Deutsch, as soon as I get these things on the sidewalk I’ll make a copy and send it to you.’
******
“Q. Did you ever speak to Mr. Barnes again? A. Yes, I spoke to the other gentleman whose name I did not know but whose voice I recognized as being the one I ¡had spoken to before. That other gentleman said to me that the girl had quit, and I said ‘She promised she would give me a list of the things I left here and what has been sold.’ He said ‘She has quit on me, but I’ll send you that list in a day or two.’
“Q. Did you get it? A. No.
* * * * * ' *
“Q. Did you ever ¡hear from him further? A. He promised to send me a list but I didn’t get it.
******
“Q. Have you ever received any receipt or accounting from Mr. Fabacher or anyone representing him? A. Never.
“Q. Have you a list of the articles which you delivered to Mr. Fabacher and their value? A. Yes.
“Q. Where did you get that list? A. Well, I made it up; I was thinking of what I had given him and you told me you had written Mr. Fabacher and had to have a list. In a sort of general way I said 'Well, I guess all that stuff is worth about three hundred dollars.’
“Q. Did you ever make up an accurate list of those items? A. Yes, I did, you told me you felt that you had to sue them and you decided and I decided that this had to be a carefully made up list.
“Q. I now show you what purports to be such a list, giving those articles and their values, and ask you who wrote that? A. -I wrote it.
“Q. Is that a correct list of those articles? A. Yes, I think there cure lots of them that I forgot.”

On cross-examination this testimony was elicited from plaintiff’s wife:

“Q. Well, this safe box we are talking about now, what kind of safe box was it? A. I really don’t remember it.
“Q. You don’t remember it? A. No.
“Q. Well, if you don’t remember it how did you get the information to put on this slip? A. Well, I got that information because — I tell you how I did that. I went up in the attic with my clumffew cmd said, ‘George what is missing’ ?
* * * * ■ * *
“Q. So you don’t know anything more about the safe box than your chauffeur told you a safe box was missing? A. That’s right. * * * ”

The record is replete with testimony of this nature.

A careful reconsideration and thorough analysis of this matter convinces us that our former opinion and decree are correct and that they should be reinstated.

For the reasons assigned our original opinion and decree herein are reinstated as the final judgment of this court.

Original decree reinstated.


text:
    BAIRD et ux. v. EMPLOYERS’ LIABILITY ASSUR. CORPORATION, LIMITED.
    No. 19030.
    Court of Appeal of Louisiana. Orleans.
    March 14, 1949.
    H. L. Hammett, of New Orleans, for plaintiffs and appellees.
    Edward Rightor and W. H. Sellers, both of New Orleans, for defendant and appellant.
   PER CURIAM.

Defendant-appellant has filed an application for rehearing wherein counsel point out what they consider several errors in our opinion.

The only point raised which we deem worthy of consideration was stated in the application as follows:

“If the court feels that its judgment is correct and does not grant a rehearing on this application, we feel that the judgment in favor of Mr. Baird should be further amended in these respects. Mr. Baird should not have interest on the full amount from date of judicial demand, for in his original petition he only claimed the amount of $210.75 for medical expenses, and though he reserved his right to prove further medical (expenses) in the amount of $1000.00, there was no amendment to the petition, but a stipulation of counsel was filed on February 11, 1948, granting to plaintiffs the right to show expenses in excess of that claimed in the petition.
“In all fairness to the court, we failed to brief this point or refer to it (in) argument.”

As stated in our opinion, counsel stipulated on February 11, 1948, that plaintiff, William R. Baird, might “show medical bills and expenses in excess of the amount sued for in the petition without the necessity of amendment, though liability therefor is denied.”

Under our holding in the case of Hobbs v. Employers’ Liability Assurance Corp.,. La.App., 188 So. 748, perhaps we would be justified in refusing to entertain the contention made by appellant. However, counsel for appellees have filed an answer to-the application for rehearing, in which there is contained the following remittitur as to interest on the award in favor of' William R. Baird:

“ * * * However, in order to avoid any controversy as to the interest due on the judgment in favor of Mr. William R. Baird, counsel, on behalf of Mr. Baird, is-willing to agree to the contention of ap~ pellant with regard to the interest on Mr. Baird’s judgment, and therefore, does hereby remit all interest on the judgment in favor of Mr. Baird, except interest on $144.00 from the date of Judicial demand and interest on the remainder of the judgment $3,223.93 from February 11th, 1948.”

In accordance with the consent of ap-pellees, we believe that our judgment ■should be amended to the above extent.

It is ordered that our original decree be amended so as to allow William R. Baird legal interest on $144.00 from judicial demand until paid, and legal interest on $3,-223.93 from February 11, 1948, until paid.

The application for the rehearing is refused and, as thus amended, our original decree is made final.

Decree amended rehearing refused.


text:
    DAVALIE v. KEARNEY et al.
    No. 17623.
    Court of Appeal of Louisiana. Orleans.
    March 14, 1949.

    M. C. Scharff and Frank P. Lucia, both of New Orleans, for appellant Reynold J. Lucius.
    P. M. Flanagan and Gerald S. Quinlan, both of New Orleans, for appellee.
   REGAN, Judge.

The plaintiff, Joseph Davalie, brought this suit against the defendants, Reynold J. Lucius, proprietor of Lucius Shoring Company and Mrs. Catherine Kearney, claiming the sum of $72 for unpaid wages, $3 for filing his lien in the Mortgage Office and a penalty of $4 for every day that his wages remain due and unpaid after demand was made for said wages, and $25 attorney’s fees. Plaintiff waived any sum that may be due in excess of $300.

Defendant, Mrs. Catherine Kearney, answered and denied that she was indebted to plaintiff in any sum whatsoever. Defendant, Lucius, answered and denied that he was indebted to plaintiff with the exception that he admitted owing him $5.10 which amount he had tendered to plaintiff but which plaintiff has refused to accept.

The judex a quo dismissed plaintiff’s suit as to defendant, Mrs. Catherine Kear-ney, and rendered judgment in favor of plaintiff and against defendant Lucius as prayed for. From this judgment defendant Lucius has prosecuted this appeal.

The record reveals that defendant, Lucius, was engaged by Mrs. 'Catherine Kear-ney to renovate her property located in 1532 Chippewa Street, this City, and that Lucius employed plaintiff as a carpenter in connection therewith. Plaintiff contends that defendant agreed to pay him fifty cents per hour and that he worked six days a week, eight hours each day, for .three weeks beginning October 23d, 1939, and ending Saturday, November 11th, 1939, and that, therefore, he worked a total of one hundred and forty-four hours for which there is due him $72. Plaintiff also contends that in conformity with the provisions of Act 150 of 1920, as amended by Act 138 of 1936, since he earned $4 per day, he is entitled to collect a penalty of $4 per day from defendant for every day his wages remain unpaid after demand was made. Plaintiff fixes the day on which demand for his wages was made as January 24th, 1940.

Defendant, on the other hand, pleads that plaintiff was employed by him at forty cents per hour and that he worked eight hours on Tuesday and Wednesday, November 1st and 2d, 1939, and six hours on Thursday, November 3d, 1939, or a total of twenty-two hours, amounting to $8.80, which amount was paid to plaintiff. That thereafter plaintiff worked seven hours on Wednesday and Thursday, November 8th and 9th, 1939 and five hours on November 10th, 1939, or a total of nineteen hours amounting to the sum of $7.60, of which sum he was paid $2.50 and the balance of $5.10 was brought to his home and offered to him “but that plaintiff refused to come out of his home and accept the said payment.”

An examination of the record discloses that the testimony is not only conflicting but vague annd indefinite as to the manner in which plaintiff terminated his employment wtih defendant, his hourly rate of pay, and the number of days that he worked for defendant. None of plaintiff’s witnesses corroborated him as to the amount due him by defendant, or the specific number of hours and days that he worked for the defendant and only one witness verified his testimony as to the hourly rate of pay. We were not impressed by this testimony. It is interesting to observe that all of plaintiff’s witnesses were former employees of defendant, and they testified that defendant, at all times, paid them promptly.

Inasmuch as plaintiff has endeavored to penalize defendant for having failed to pay his wages in conformity with the provisions of Act 150 of 1920 as amended by Act 138 of 1936, plaintiff, as a condition precedent to invoking the provisions of this act, must first prove that the defendant was indebted to him for wages which were unpaid. We are of the opinion that plaintiff has failed to successfully carry the burden of proving that defendant owed him any wages, other than the sum of $5.10, which amount we believe defendant tendered to plaintiff, but that plaintiff refused to accept it.

Plaintiff maintains that “with the sharp conflict existing in the testimony of the parties, great weight must be given to the appraisal placed upon it by the trial court” and cites Mahne v. Steele, La.App., 32 So.2d 761, in support of this contention. We are thoroughly in accord with plaintiff’s quotation from that decision, and we agree that the testimony in this case is conflicting, but the credibility or veracity of the witnesses is not the basis of our opinion, it is briefly that plaintiff has failed to successfully prove by a simple preponderance of the evidence that defendant owed him any wages other than the amount which defendant tendered plaintiff shortly after plaintiff terminated his employment, consequently and

For the reasons assigned the judgment appealed from is amended by reducing the amount thereof to $5.10, and as thus amended it is affirmed.

Amended and affirmed.