author: PER CURIAM: ELLIS, Judge, LOTTINGER, Judge, PONDER, Judge, CHIASSON, Judge, COVINGTON, Judge

text:
    Darrell DANOS et al. v. Terry ST. PIERRE et al.
    No. 12755.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 21, 1980.

      Darryl J. Carimi, Gretna, for petitioners and appellees.
    Albert Forrest, New Iberia, John Ladd Lanier, Thibodaux, Steven B. Witman, John J. Hainkel, Jr., New Orleans, for defendants and appellants.
    Lloyd T. Bourgeois, Thibodaux, Harold J. Lamy, New Orleans, for defendants and appellees.
    Terry B. Loup, Baton Rouge, for plaintiffs (Suit No. 84672) and appellees.
    Robert Blomefield, New Orleans, for plaintiffs (Suit No. 34002) and appellees.
   PER CURIAM:

A basic but delicate question confronts us on this appeal: Can a fetus whose stillbirth results from the negligence of a third person be considered a “person” for purposes of the wrongful death provisions of La.C.C. art. 2315?

The issue arises in a suit for wrongful death, personal injury and property damage brought as a result of a head-on collision.

The collision occurred on August 23,1975, at about 4:00 A.M. on Louisiana Highway 1 in Lafourche Parish, Louisiana. The vehicles involved were the 1971 Chrysler automobile owned by Eroy Danos and driven by Gayle Naccio Danos in which her husband, Darrell A. Danos, was an occupant, and the 1973 Chevrolet automobile owned by Rhonda Rousse Malbrough and driven by Terry St. Pierre in which the owner and two guest passengers in the backseat, Jenny Lynn Au-tin and Nolan Ougel, Jr., were occupants. The accident happened when the Malbrough vehicle veered into the lane of traffic of the Danos vehicle.

Immediately before the wreck, St. Pierre and his passengers had been partying for several hours at a local nightclub where all had consumed copious quantities of alcoholic beverages. They were well acquainted with each other and they knew that St. Pierre was intoxicated when they left the nightclub. At the time of the accident Mrs. Danos was seven months pregnant, and was to be shortly thereafter delivered of a stillborn child. Jenny Lynn Autin and Rhonda Rousse Malbrough died as a result of the injuries they sustained in the accident. Mr. and Mrs. Danos, St. Pierre and Ougel were severely injured.

The plaintiffs, Darrell Danos, Gayle Da-nos and Eroy Danos, sued the defendants, St. Pierre, the Malbrough (Rousse) Estate, Jenny Lynn Autin, and Ougel, and the liability insurers, Aetna Life & Casualty Insurance Company and State Farm Mutual Automobile Insurance Company. Later, Allstate Insurance Company, the Danos’ uninsured motorist carrier, was added as a defendant, as was Southern Farm Bureau Casualty Insurance Company, as the insurer of Autin, whose death occurred after suit was filed.

The plaintiffs alleged that the collision was caused by the joint negligence of Terry St. Pierre, in that he was driving an automobile while under the influence of intoxicating beverages, driving at an excessive rate of speed and crossing the center line of the highway into the path of oncoming traffic; and of Jenny Lynn Autin, Nolan Ougel, Jr. and Rhonda Rousse Malbrough, all of whom were passengers' in the Mal-brough vehicle, and whose negligence was alleged to have consisted of their having-been fully aware of St. Pierre’s intoxicated condition and of their failure to take steps to prevent him from driving the Malbrough car.

The trial court held that the collision resulted from the joint negligence of the driver and the occupants of the Malbrough vehicle, and awarded judgment in favor of the plaintiffs against all defendants. The defendants, except Ougel, have appealed; he is not before this court and the judgment is final as to him.

The principal issues before us concern:

(1) Whether the parents of a child born dead can recover for its wrongful death.
(2) Whether the owner of an offending vehicle who allows a person she knows is intoxicated to operate her vehicle is guilty of actionable negligence.
(3) Whether the guest passenger of an offending vehicle who knows or should know that the driver is intoxicated is, by such knowledge, answerable solidarily with the driver pursuant to La.C.C. 2324.

There is also a procedural question concerning the validity of the judgment against the Malbrough (Rousse) Estate and an issue of quantum.

WRONGFUL DEATH

It is the holding of a majority of this court that plaintiffs have a cause of action and can recover damages for the loss of their child, which was stillborn as a result of the accident herein. Reasons for and against this holding will be expressed in concurring and dissenting opinions, to be attached hereto.

LIABILITY OF AUTOMOBILE OWNER

The driver of the Malbrough car, Terry St. Pierre, was undoubtedly negligent. He was operating the car while in an intoxicated condition which caused him to invade the traffic lane of the Danos automobile at a high rate of speed and collide head-on with it. The trial court found, and the evidence supports its finding, that Rhonda Rousse Malbrough, the owner, knew that St. Pierre was intoxicated to the point where he was in no condition to drive when she entrusted the car to him.

We thus have no difficulty in affirming the trial court’s holding that the owner of the Malbrough vehicle was negligent and was solidarily liable with the driver. It is established law that the owner of an automobile who knowingly entrusts it to an intoxicated, or otherwise incompetent, driver is responsible for the harm resulting from the incompetent operation of the vehicle. Baader v. Driverless Cars, Inc., 10 La.App. 310, 120 So. 515 (Orl.1929); see also Kemp v. Fourmy, 265 So.2d 651 (La.App. 2 Cir. 1972); Winzer v. Lewis, 251 So.2d 650 (La.App. 2 Cir. 1971), writ refused, 259 La. 934, 253 So.2d 379 (1971); Annot., Liability Based on Entrusting Automobile to One Who Is Intoxicated or Known to be Excessive User of Intoxicants, 19 A.L.R.3rd 1175,

LIABILITY OF GUEST PASSENGERS

In holding the guest passengers, Autin and Ougel, solidarily liable with the driver, the trial judge stated:

“The claims in the companion suits were dismissed against the plaintiffs in this suit and the other defendants in each of those suits because the court felt the evidence had established a clear case of assumption of risk by the three guest passengers. This finding was sufficient to deny recovery in those suits. The court finds as a fact, however, that the guest passengers in the Rousse (St. Pierre) vehicle were also joint tort-feasors with the driver, Terry St. Pierre, and hence they, their insurers, and their estates are liable to the plaintiffs in this case.”

The trial court’s holding was based on its finding that the St. Pierre group had been partying together for several hours at a nightclub and that all members of the party knew that St. Pierre was in an intoxicated condition when they left the club. The holding was apparently based on La.C.C. art. 2324, which provides:

“He who causes another person to do an unlawful act, or assists or encourages in the commission of it, is answerable, in solido, with that person, for the damage caused by such act.”

The decision of the trial court was premised on the awareness of the guest passengers of the intoxicated condition of the driver. Finding as a fact that the passengers knew of St. Pierre’s excessive intoxication, the trial court concluded that the guest passengers, including the owner, had thus assumed the risk, which barred their own recovery.

The trial judge, from this finding and holding, then assumed that the guest passengers were necessarily joint tort-feasors. Putting it mildly, this is a non sequitur. The mere fact that a guest passenger is precluded from recovery of damages because of assumption of risk or contributory negligence does not inexorably lead to the conclusion that he has breached a duty owed to some third person injured as a result of the accident.

We find from the facts and circumstances of the instant case that there was no special relationship between Autin and the driver, or between Autin and the injured third persons, which imposed a duty upon her to persons outside of the vehicle. Mere knowledge or awareness of the intoxicated condition of the driver, alone, does not create a relationship which imposes a duty upon a guest passenger to protect against the particular risk involved in the instant case. Sloan v. Flack, 150 So.2d 646 (La.App. 3rd Cir. 1963).

This position is consistent with the rule that before a plaintiff can recover from a passenger in the defendant’s motor vehicle, he must show a joint interest of the driver and the passenger or an equal right in the passenger to control the driver’s operation of the vehicle. Malbrough v. Davidson, 219 So.2d 313 (La.App. 1st Cir. 1969), writ denied 254 La. 10, 222 So.2d 66 (1969). We find nothing in this case to take it out of that general rule.

There is nothing in the record that shows that the passenger had any control or custody over the motor vehicle. She had no interest in the automobile which she could entrust to the driver. The evidence does not establish that Autin was in control of the driver; nor is there evidence of intimidation or forceful persuasion by her. On. the basis of the evidence in this record we cannot be persuaded to extend Article 2324 to hold the guest passenger liable for the plaintiff’s damages.

Therefore, we reverse the trial court’s finding of fault on the part of Jenny L. Autin.

WAS THE MALBROUGH (ROUSSE) ESTATE PROPERLY BEFORE THE COURT?

The original petition alleged that Rhonda Rousse Malbrough, the owner of the Chevrolet automobile, being fully aware of the driver’s intoxicated condition, entrusted the vehicle to him and therefore that the Malbrough (Rousse) Estate, through the administrator of her Estate and/or her heirs, was liable for the damages. It was alleged that her Estate and her insurer were jointly liable with St. Pierre, the negligent driver. The record shows that the Estate, through the succession representative, filed responsive pleadings, made an appearance in the suit and participated in the trial. Thus, we find this party was properly before the court and could have been, as it was, cast in judgment. See La.C.C.P. arts. 6, 7, 925 and 3249; Crane Supply Company v. Drake & Planche, Inc., 255 So.2d 188 (La.App. 4th Cir. 1971).

QUANTUM

The appellants contend that the awards of $10,000.00 and $20,000.00 to Darrell Danos and Gayle Danos, respectively, for their personal injuries were excessive and should be reduced. In making his awards, the trial judge said:

“We now turn to an award for pain and suffering by plaintiff Darrell Danos. .Simply put, his face was fractured. He was first seen by his local doctor, Dr. William George, but because of the nature of his injury he was referred to Dr. James Peltier, an oral surgeon, accepted as an expert by all parties. Dr. Peltier testified that plaintiff Darrell Danos had sustained a fracture of the upper jaw, which in essence totally severed it from the bony structure of the head. There was apparently no laceration, but the fracture was the result of the violent blow received when plaintiff Danos, who was riding in the right front seat of the car, struck the dashboard as a result of the head-on collision. The force of the blow impacted the jaw, which in this case was an advantage in that it helped immobilize the jaw and simplified the treatment. The fracture extended from the middle of the upper jaw on each side of the nose and then the bones over each eye. Dr. Peltier immobilized it with metal plates and wired the jaw shut. This was done following the day of the accident and the situation was static until September 24th, at which time the wires and elastic bands were removed, but the bars or plates were left in place. On October 10th he removed the remaining appliances from his mouth. From Dr. Peltier’s testimony and from plaintiff’s appearance it was obvious that despite the extensiveness of the facial fracture good results were obtained in treatment. Despite the doctor’s assurance that the procedure was not excruciatingly painful, pain is a subjective thing and from the doctor’s description of the treatment and the plaintiff’s testimony, there is no doubt in the court’s mind that for a period of several months after the accident plaintiff was in great discomfort. In addition to this, the accident required repair for a deviated septum. This, too, was a success, but again there was considerable discomfort involved in this surgical procedure. The only other injury to plaintiff Darrell Danos involved an apparent infection to the tear duct of the left eye which was cleared up with three visits to Dr. James Bourgeois. (See Danos-15). Under the circumstances, an award of Ten Thousand and no/100 ($10,000.00) Dollars for pain and suffering for plaintiff Darrell Danos for the injuries he received would seem to be reasonable. This award is sufficient, also, to compensate him for any mental anguish he may have suffered in connection with his own injuries. We reserve for later in these reasons plaintiff Darrell Danos’ claim for the loss of the [sic] ‘his unborn baby girl’.
“We turn now to damages to be awarded to Mrs. Gayle Danos for her pain and suffering. It was obvious from the medical testimony and evidence that her primary injury was a severe blow in the lower abdominal region, apparently caused by the steering wheel, as a result of the head-on collision. Since Mrs. Da-nos was experiencing abdominal pain and was approximately six (6) months pregnant, she was kept in the hospital, The Lady of the Sea in Galliano, Louisiana, from the date of the accident until August 30th. During this period she was taken to St. Ann Hospital in Raeeland, Louisiana, for examination and it was determined that the child she was carrying was dead. Dr. Frederick Cardwell, accepted as an expert in obstetrics and gynecology, saw her on August 27th, 1975, and he testified that the baby’s death was caused by the accident. To the best of his recollection he advised Mrs. Danos and her mother-in-law that in his opinion the baby was dead at the time of this examination. On September 2nd she began having severe pains during the night and called her in-laws, who picked her up to take her to the hospital. When they put her on the stretcher in the parking lot, the dead child spontaneously ejected from the womb stillborn. In contradiction of Dr. Cardwell’s testimony, both plaintiff Gayle Danos and her mother-in-law, Mrs. Eroy. Danos, testified that after the examination on August 27th the doctor had told only Mrs. Eroy Danos of his belief that the child was dead. With this conflicting testimony, it cannot conclusively be determined whether plaintiff Gayle Danos knew or did not know in advance that the child had been killed in the accident, but in assessing the measure of damages one situation would seem almost as mentally agonizing as the other. Is there a greater anxiety and mental suffering for a mother carrying her first child in her womb to know she is carrying a dead child, or since movement had ceased to wonder if she is carrying a dead child? Monetary compensation would seem woefully inadequate in either circumstance, but it is the only compensation that can be afforded. Considering the fact that this was her first child and that there were ten days of uncertainty preceding the stillborn delivery, coupled with the final knowledge that indeed she was to be denied the joy of motherhood at this time, an award of Twenty Thousand and no/100 ($20,000.00) Dollars for her pain and suffering and mental anxiety does not seem unreasonable to this court.”

Based on the evidence in this case, any reduction of the awards granted Mr. and Mrs. Danos would simply be a substitution of our opinion as to proper quantum for that of the trial court. In view of the injuries sustained and the much discretion allowed the trier of fact in compensating such injuries, we find no manifest error in the awards. La.C.C. art. 1934(3); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); Beal v. New Orleans Public Service, 365 So.2d 1118 (La.App. 4th Cir. 1978).

DECREE

Therefore, for the above and foregoing reasons, the judgment of the trial court rendered against Jenny L. Autin is reversed, and in all other respects, the judgment of the trial court is affirmed at defendants-appellants’ costs.

REVERSED IN PART AND AFFIRMED IN PART.

ELLIS, LOTTINGER and PONDER, JJ., concur and assign written reasons.

CHIASSON and SARTAIN, JJ., concur for reasons assigned by ELLIS, J.

EDWARDS, J., concurs for the reasons assigned by ELLIS and PONDER, JJ.

COLE, J., concurs for reasons assigned by LOTTINGER, J.

COVINGTON, J., dissents in part, for reasons assigned and concurs in part.

ELLIS, Judge,

concurring:

I believe that it is unnecessary to classify a fetus as a person, thing or non-person in order to reach the result herein. In my opinion, the fact that the prospective parents have lost a child, which would otherwise have been born normally, because of the wrongful act of another, is sufficient to create a right of recovery under the first sentence of Article 2315 of the Civil Code. The elements of fault and damage are clearly satisfied.

I do not believe that Articles 28 and 29 of the Civil Code were intended to cover a case such as this, when the death of the fetus is caused by the wrongful act of another. However, those articles do preclude the acquisition or transmission of a cause of action by the fetus, which, by law, never acquires personality if born dead.

I therefore concur in the result.

LOTTINGER, Judge,

concurring.

I concur with the decision of this court to allow parents to recover for the wrongful death of a stillborn child for the following reasons.

In allowing the parents to recover, the trial judge refused to follow this court’s latest expression that there can be no recovery for the wrongful death of a stillborn child. Wascom v. American Indemnity Corporation, 348 So.2d 128 (La.App. 1st Cir. 1977), writ refused 350 So.2d 1224 (La.1977). This court in Wascom, following the lead of a 1927 Second Circuit case, Youman v. McConnell & McConnell, Inc., 7 La.App. 315 (La.App. 2nd Cir. 1927), held that Louisiana Civil Code Article 28 precludes recovery for the death of a stillborn child. This writer dissented, arguing that La.C.C. arts. 28 and 29 when read together applied only to succession and inheritance matters.

Where this court and this writer failed in Wascom was in not tracing the historical development of Article 28.

The history of Article 28 of the Louisiana Civil Code of 1870 runs deep into the rich past of this state. More important, history will show that Article 28 was never intended to block the right of parents to recover for the wrongful death of their unborn child.

Article 28 states simply that “Children born dead are considered as if they had never been born or conceived.” The article appears in Book I, Title I of the Civil Code, relating to the distinction of persons. It was taken verbatim from Article 28 of the Civil Code of 1825, which in turn was taken verbatim from Book I, Article 5 of the Digest of 1808.

The compilers of the Digest of 1808, in a handwritten reference to the source of Article 5, gave as the prime source of that article a similar provision in Las Siete Partidas, an old Spanish law codification upon which much of Louisiana’s codal law is based. The De La Vergne Volume of the Digest of the Civil Laws Now in Force in the Territory of Orleans (1808). The reference is to Partida Seven, Title 33, Law 8, which in pertinent part reads: “We also decree that children who are born dead are not born at all, or reared; and therefore a will made by their father or mother cannot be broken on their account. Moreover, we decree that such as are born in the semb-lence of animals, or contrary to the usual custom or practice of nature, and are, as it were, monsters, shall not be called children. Matters of this kind we discussed fully in the Title which treats the Condition of men, which is inserted in the Fourth Partida of this our book.” Title 33 of the Seventh Partida deals with the words and matters used throughout Las Siete Partidas.

The direct connection in Law 8 between stillborn children and the effect of their birth on previous wills is a clear indication that inheritance rights were the sole consideration in the Spanish law dealing with stillborns.

From the time the Partidas were compiled to the time the Civil Code of 1870 was codified, there was no such thing as a wrongful death action in Louisiana. Not until 1884 was Article 2315 amended to create an action for wrongful death. Thus, considering that the source provisions of Article 28 dealt solely with the problem of stillborn children in relation to successions and inheritances, and that a wrongful death action did not exist in Louisiana at the time that this article was placed in the Civil Code, we must conclude that the redactors never had any intention that Civil Code Article 28 act as a stumbling block to or preclude a wrongful death action for a stillborn child. Necessarily, then, our reliance on Article 28 in Wascom, and the Second Circuit’s reliance in Youman, were misplaced and in error.

It also becomes obvious that the redactors of Article 28 were speaking of natural visa-vis unnatural causes when they spoke of the death of the stillborn child. Natural causes fall more into line with the historical examination of Article 28 and its relationship to successions and inheritances.

The defendants argue that when Act 71 of 1884 amended Article 2315 to authorize a wrongful death action, that amendment took the then existing law as it found it, which was that a child born dead was considered as if it had never been born or conceived. Where the defendants fall into error is in attempting to apply an interpretation of a codal article which was never intended.

The defendants also argue that if the above-expressed view of Article 28’s purpose is correct, then that article becomes merely repetitive of the Civil Code articles dealing with unborn children in the succession section of the code. Articles 953-963. I agree with the defendants that Articles 28 and 29 are closely related to Articles 953 through 963, but I also feel that the latter articles represent a refinement of the general principles enunciated in the former articles. None of these articles is rendered nugatory by the decision today. Rather, the scope of these articles is confined to the intent the legislature originally had in mind in enacting them.

Since I have concluded that Article 28 was never intended to prohibit and nor does it prohibit a wrongful death action for a stillborn child, I would therefore overrule Wascom and proceed to determine whether such an action can exist in Louisiana, and if so, under what circumstances.

Is the Fetus a “Person”?

Besides containing the broad statement concerning general delictual responsibility of tortfeasors, Article 2315 provides an action for wrongful death of a “person,” inuring to those who are given the right to sue for the injured person’s personal damages should that person die. Nowhere in Article 2315 and nowhere in the chapter in which Article 2315 appears is the word “person” defined. And, as noted in the discussion of Article 28, none of the other articles in the Civil Code dealing with children and still-borns can be read in pari materia with Article 2315’s tort provisions because those articles relate to totally different subject matters. The Civil Code’s general definition of a “person,” found in Article 3556’s sundry terms, is a gender provision, stating in effect that when the Code uses the word person, it means both men and women. This article provides no help.

More than 50 definitions of the word “person” appear in other Louisiana statutes, an overwhelming number of which define the word in the context of the legal entities sought to be regulated by the particular statutory scheme. Of particular interest, however, is the definition of “person” in Louisiana’s criminal law. For purposes of the Criminal Code, “person” includes “a human being from the moment of fertilization and implantation and also includes a body of persons, whether incorporated or not.” La.R.S. 14:2(7). This definition, added to the Criminal Code in 1976, reflects a legislative intent to classify an unborn child as a “person” for purposes of violent criminal conduct like homicide and battery. The definition reveals an express recognition by ■ the legislature that life begins at the mo- j ment of conception and that this form of life can indeed be the victim of a harm, i. e.,j a murder or a battery.

I realize that in State of Louisiana v. Brown, on the docket of the Louisiana Supreme Court, 378 So.2d 916, decided December 13,1979, our Supreme Court in a criminal case held that the 1976 amendment to La.R.S. 14:2(7) did not effectively change the criminal law of this state to broaden the crime of homicide to include feticide. But be that as it may, the legislature did recognize that life begins at the moment of conception.

I realize, nonetheless, that there is no definition of the word “person” in the civil law of this state that can be applied directly to Article 2315’s wrongful death provision. Given this sparse legislative background, I am mindful of Justice Dennis’ poignant statements in a recent case concerning the interpretation of La.C.C. art. 160. In a civilian jurisdiction, said Justice Dennis, civilian judges “may perform extensive exegesis to discover the original legislative intent; legislative texts may be interpreted so as to give them an application that is consistent with the contemporary conditions they are called upon to regulate; and a particular conflict of interests before the court may be resolved in accordance with the general policy considerations which induce legislative action rather than by reliance on logical deductions from the language of the text.” Loyacano v. Loyacano, 358 So.2d 304, 308 (La.1978) original hearing. (Emphasis by this court).

In enacting the wrongful death provisions of Article 2315 in 1884, the legislature was ostensibly concerned with the courts’ failure to provide a remedy to those persons who suffered most by the death of a loved one. See Hubgh v. New Orleans and Carrollton Railroad Company, 6 La.Ann. 495 (1851). The legislature realized that, above and beyond the injuries suffered by the person who later died of those injuries, an additional and distinct injury was suffered by those family members closest to that person. It was this additional and distinct injury for which the legislature provided a cause of action for recovery in the 1884 amendment to Article 2315.

The purpose of allowing a wrongful death remedy is to help compensate those who are closest to the deceased for the mental anguish, shock, grief, lost wages and lost support they have suffered by the wrongful killing to their loved one. I am willing to concede that in 1884, the legislature’s probable prime concern in enacting the wrongful death provision was for widows and orphans who lost the support and services of their husbands and fathers. But the legislature’s intent, clearly distinguishable from what may have been the overwhelming social problem at the time, was to provide a distinct action for damages invariably suffered by those closest to the person who was negligently killed. This pervasive intent should apply whether the deceased is a sole wage earner, a homemaker, an elderly grandfather, a newborn babe or an unborn child deprived of life by the negligence of another. The same considerations, to a greater or lesser degree, are present in all cases of wrongful death.

Article 2315 should be interpreted in light of contemporary social and medical conditions. No one will deny the excruciating grief and suffering experienced by a couple — or either one of them — when the child they are eagerly expecting is killed in the womb by the act of a tortfeasor. Indeed, our courts in a number of instances have awarded damages for this distinct injury and, somewhat ironically, have allowed the wrongful death action to be brought if the child lives but a few moments outside the womb and have allowed the child born alive to sue for its prenatal injuries. Sibley v. Wilcox, 125 So.2d 49 (La.App. 1st Cir. 1960); Moncrieff v. Lacobie, 89 So.2d 471 (La.App. 1st Cir. 1956); Cooper v. Blanck, 39 So.2d 352 (Orl.La.App.1923, reported in 1949); Johnson v. Southern New Orleans Light and Traction Company, Orl.App.No. 9048, writ refused No. 266,433 (1923); Joiner v. Texas and Pacific Railway Company, 128 La. 1050, 55 So. 670 (1911); Stewart v. Arkansas Southern R. R. Company, 112 La. 764, 36 So. 676 (1904); see also Valence v. Louisiana Power and Light Company, 50 So.2d 847 (Orl.La.App.1959).

Implicit in those decisions which allow an action for prenatal injuries if the child is born alive is the recognition that the child is a “person” at the time it is injured prenatally. This is so because of the language of Article 2315 which relates to offenses and quasi-offenses against a “person.” If the unborn child is not a “person” at the time it is injured, then it follows that there can be no action for its prenatal injuries because a “person” has not been injured. Our courts have repudiated any such idea by allowing the child born alive to recover for prenatal injuries. These decisions have recognized, without expressly holding, that the child in the womb is a person for purposes of tort liability. Only by a stretched and strained interpretation of the legal fiction of Article 28 have our courts been able to deny recovery for the wrongful death of a stillborn. Wascom v. American Indemnity Corporation, supra; Youman v. McConnell & McConnell, Inc., supra. Modern medicine is also in accord with the view that an unborn child is a person. Medical authorities stand solidly behind the premise that human life begins at the moment of fertilization. As contemporary conditions stand, both society and the medical profession realize the distinct physical being that is the unborn child in the womb. I need not belabor the point further.

Many jurisdictions across the country which allow wrongful death actions for a stillborn child and actions for prenatal injuries by a live-born child limit the. actions to fetuses which are viable, i. e., capable of independent existence outside the womb. /'Viability has not been the controlling factor / in some previous Louisiana cases allowing recovery, and there is no need to make it a controlling factor in this decision. Just as live birth is an arbitrary cutoff point for wrongful death purposes, viability'is equal-) ly arbitrary in deciding whether the fetus is I a “person” whose wrongful killing is com-pensable. Instead, viability is one of the factors to which courts should look in determining the nature and extent of damages in each particular case.

I come now to the crux of this concurring opinion. Given the fact that the legislature has not defined the word “person” for purposes of Article 2315, should we as civilian judges in a civilian jurisdiction work with the tools the legislature has provided and define “person” to include an unborn child from the moment of fertilization and implantation? I think we should.

One of the main concerns of the defense in this ease has been some of the farfetched consequences that allegedly could result from our decision today. For instance, if a fetus is a person for wrongful death purposes, then does a fetus have an action, typically called a survival action, which it passes on to its Article 2315 successors in the event the fetus does not die instantaneously? Even more interesting and intricate is the question that arises if the mother is killed instantly but the fetus survives for a few minutes before expiring. Does the fetus in such a case have a wrongful death action for the death of its mother and does this action devolve upon its heirs under the express provisions of Article 2315? Further, the defense asks, can a fetus be libeled or slandered while in the womb, and, if so, does its action survive in favor of the designated beneficiaries under Article 2315 in the event of its stillbirth? Finally, the defense raises a question concerning abortion.

My concurring opinion is limited to the holding that the parents of a stillborn whose death results from the negligent or intentional act of another have a right to seek damages for the wrongful death of their inchoate child under Article 2315. However, from a legal standpoint, this opinion cannot be so limited. If a fetus is a person for wrongful death purposes, it must also be considered a person for other purposes under Article 2315. As a practical matter, and unlike the defense in this case, I do not envision many technical problems arising as a result of this decision. Damages in these cases will be no more difficult to compute than are damages incurred in cases in which the child survives for a few minutes or hours outside the womb. In some cases, damages will be so ephemeral and vague as to be unprovable. However, if damages can be proved, the difficulty in assessing them should not prevent courts from making the proper award. Difficulty in assessing damages • has seldom blocked courts from extending tort law to meet modern conditions. And I refuse to let possible damage problems keep us tied to the apron strings of the past.

Even if a fetus, which does not die instantaneously, has a survival action for its own pain and suffering in the womb before stillbirth, the extent of damages will have to be proven. A court will have the same problem in assessing damages as it would if the child lives a short time out of the womb. Proof will be the big problem, and in some cases no damages will be provable at all. See Bell v. Sparrow, 220 So.2d 729, 734 (La.App. 1st Cir. 1969).

The same reasoning would apply in an action brought on behalf of a stillborn for the wrongful death of its mother or father. Damages in this type of case will be hard to prove, but no harder perhaps than damages suffered by a six-month-old child for the wrongful death of its parent or parents when the child dies a few minutes, hours or days after the parent. If damages are proven by a preponderance of the evidence, courts should assess them as they do in any other tort case.

I perceive the case of libel or slander against an unborn as being no different. If the child survives for a few months out of the womb, it has an action for the defamatory statement, but, again, proof of damages will be crucial. Why should there be a difference if the child is stillborn?

Lastly, the defense suggests that if this court classifies a fetus as a “person” then an abortion would be a battery committed upon the fetus, thus creating a cause of action on its behalf. Since this example requires a deeper examination of a woman’s constitutional right to have an abortion under certain circumstances, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and this issue is not directly before us at this time, I pretermit any further discussion.

I think our courts are completely capable of filtering, the frivolous cases from the valid ones and of awarding the proper amount of damages when the proper proof has been made. This, indeed, is the ultimate judicial function in tort cases, and our judges have been doing it for years.

I have elaborated the discussion in this area to help placate those who fear that the floodwaters of litigation will flow from the nick the majority has carved in the levee of the law. I do not share this fear. The prime focus of litigation occurring as a result of our opinion today will be for the damages suffered by the parents for the wrongful killing of their unborn child. These damages are certainly more apparent and easier to prove than the damages discussed in the technical hypothetical situations above.

The anomalies which exist under. the present state of the law are reason enough to allow the action sued for here. Under existing jurisprudence, a fetus injured or deformed by the act of a tortfeasor can sue for its prenatal injuries if it emerges from the womb alive. If it lives for 10 days or 10 minutes or even 10 seconds outside the womb, its survivors can sue not only for the fetus’ prenatal injuries and post-birth suffering but also for their own damages suffered as a result of the child’s wrongful death. But under the law as it stands today, a nine-month-old fetus which emerges stillborn because of a tortfeasor’s negligence is considered a nonentity, a nothing, a mass of lifeless matter for which no wrongful death recovery whatsoever is allowed. This anomalous state of affairs, carried on in modern times by the legal fiction of antiquity, can no longer be justified.

Our legislature has given us the tools to allow this action by enacting the wrongful death provisions of Article 2315. Our civilian heritage gives us a solid background for interpreting codal articles in light of contemporary conditions. Our constitutional role as judges commands us to give a fair interpretation of the law in the interest of justice for all. It is with all these considerations in mind that I would decide this most important issue.

And I feel we should decide it on the side of the unborn child.

PONDER, Judge,

concurring.

Until the amendment of La.C.C. Art. 2815 in 1884, there was no death action in Louisiana. I think the question becomes whether the legislature in making the amendment intended to, or used terms broad enough, to allow recovery for the death of an unborn child along with all other death actions. I conclude it did.

I therefore concur.

CHIASSON, Judge,

concurring.

I concur in this opinion for the reasons assigned by Judge Ellis.

COVINGTON, Judge

(dissenting in part and concurring in part):

In the 1977 Wascom decision, cited in the majority opinion, we echoed the sentiment of the trial court that when tortious conduct deprives expectant parents of a child they should have the right to recover. But, we also cited the words of the learned trial judge Burrell J. Carter: “However, this Court does not make the law.”

Neither should appellate courts do so. A judicial decision should not be “the law,” but rather a learned interpretation of what is “the law.” The majority has reached a desired result through the use of a theory of, perhaps, what the law ought to be. However, the law is as it has been enacted by the duly constituted and representative legislative branch of our government.

Sociological decisions may be necessary when the bases of civilian methodology are nebulous. That circumstance does not exist here. A thinly veiled resort to equity is not authorized when the law is clear, C.C. art. 21, no matter how laudable the result.

If article 28 was intended to be applied in a limited manner, i. e., to matters of inheritance, then we must make an unwarranted assumption that the redactors erroneously placed it in the wrong Book — for, if that was their intention, it should be in Book III, Title I, not Book I, Title I.

The legislature has had almost 100 years, since the adoption of the wrongful death action in 1884, in which to make the codal revision which could have led to a different result in Wascom.

Wascom was a flare or signal, indicating the inequity of existing law. In 1979, there was a lengthy legislative session, but there was no legislation to alter the then current judicial interpretation as enunciated in 1977.

Our democratic processes allow all persons to influence policy through their legislators. A policy decision, rather than a proper interpretation of the clear language of article 28 and its placement in the code, is a deviation from the constitutional allocation of powers.

The majority is invading the constitutional prerogative of the legislative representatives of the people. Our role is to interpret the law as written, not to invade the province of the legislature and thereby reach a desired philosophical goal.

Therefore, I respectfully dissent from that portion of the judgment which grants the parents damages for the wrongful death of the stillborn child. Otherwise, I concur.

      . This action, Number 33,862 on the Docket of the Seventeenth Judicial District Court, was consolidated for trial with the following actions:
      a. Nolan Ougel, Jr. versus Aetna Insurance Company, et al., Number 34,002.
      b. Garrison J. Autin, et al. versus Aetna Life & Casualty Insurance Company, Number 35,-508.
      c.Mr. and Mrs. Edward J. Rousse versus Terry St. Pierre, Number 34,672.

      . Government Employees Insurance Company was originally named as a defendant (as an insurer of the Malbrough vehicle), but was dismissed on a peremptory exception.

      . Article 28: “Children born dead are considered as if they had never been born or conceived.”
      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.”

      . The full title of what I have referred to as the Digest of 1808 is the Digest of the Civil Laws Now in Force in the Territory of Orleans. I will refer to this compilation as the Digest of 1808.

      . The handwriting is apparently that of L. Mor-eau Lislet, one of the compilers of the Digest and a well-known lawyer of his time. See, generally, Dainow, “Moreau Lislet’s Notes On Sources of Louisiana Civil Code of 1808,” 19 La.L.Rev. 43 (1958).

      . In its entirety Partida Seven, Title 33, Law 8 provides:
      “A place surrounded by mountains, or on the shore of the sea where ships or other vessels are loaded or discharge their cargoes is called a harbor. Every other place of this kind where á ship can winter at anchor shall also bear this name, but other places where they can anchor but cannot protect themselves from severe storms, are called roadsteads, or high seas; and in Spain, derived from this term, confined and strong positions on land, situated among great mountains, are called Puertos, or shelters. We also declare that ager, in Latin, means in Casti-lian, a field which is to be sowed, in which there is no house or other edifice, except some cabin or hut for the purpose of harvesting the crops. The word syiva, properly speaking, is a place where men are accustomed to cut timber for their houses, and firewood. Meadows are fields from which persons obtain profit by cutting hay or grass. Pastures, or places where beasts are supported or kept in winter, are called, in Latin, pascua. Novaiios means a mountain, or a cleared tract recently broken up for purposes of cultivation.
      “Moreover, we declare that by the word ‘clothing’ is meant all articles of dress, whether belonging to man or woman, which are worn every day, or during the time of repose. An ‘inheritance’ includes the real-estate, personal property, and everything owing to a deceased person, after his debts have been deducted, and any property belonging to others removed.
      “We also decree that children who are born dead are not born at all, or reared; and therefore a will made by their father or mother cannot be broken on their account. Moreover, we decree that such as" are born in the semblance of animals, or contrary to the usual custom or practice of nature, and are, as it were, monsters, shall not be called children. Matters of this kind we discussed fully in the Title which treats of the Condition of men, which is inserted in the Fourth Partida of this our book.”
      The Fourth Partida of Las Siete Partidas, to which Law 8 refers, is concerned with domestic relations. The Fourth Partida also contains the source provision of Art. 29. P. 4, T. 23, L. 3.

      . Las Siete Partidas (Scott Transl.)

      . Act 71 of 1884.

      . Professor Ferdinand F. Stone, in his treatise on tort doctrine in Louisiana, advances the argument that the 1884 amendment to Art. 2315 constituted a tacit amendment of Art. 28 so as to allow the wrongful death action for parents of a stillborn. Stone, 12 Louisiana Civil Law Treatise § 63. “It should be pointed out that Article 28 was adopted in 1825 at a time when there was no action for wrongful death and its reference was to the problem in successions. Hence it can be argued that in 1884 when the Code was amended to provide an action for wrongful death, this constituted an amendment of Article 28 to remove the new action from the restriction of the earlier article.” Ibid.

      . Although the Louisiana Supreme Court denied writ applications in Wascom, 350 So.2d 1224 (La.1977), the writ denial is not an adjudication of the merits of the case. Smith v. Division of Administration, 362 So.2d 1101 (La.1978); see Day, et al. v. Campbell Grosjean Roofing and Sheet Metal Corporation, et al., 260 La. 325, 256 So.2d 105 (1971). While writ denials may be important for a lawyer in determining the future philosophical predilections of the Louisiana Supreme Court, Barham, “The Importance of Writ Denial,” 21 Loy.L.Rev. 835 (1975), they are not to be considered a precise statement of the law in a given case.

      . Art. 2315 provides in full:
      “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.
      “The right to recover damages to property caused by an offense or quasi offense is a property right which, on the death of the obli-gee, is inherited by his legal, instituted, or irregular heirs, subject to the community rights of the surviving spouse.
      “The right to recover all other damages caused by an offense or quasi offense, if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of: (1) the surviving spouse and child or children of the deceased, or either such spouse or such child or children; (2) the surviving father and mother of the deceased, or either of them, if he left no spouse or child surviving; and (3) the surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child or parent surviving. • The survivors in whose favor this right of action survives may also recover the damages which they sustained through the wrongful death of the deceased. A right to recover damages under the provisions of this paragraph is a property right which, on the death of the survivor in whose favor the right of action survived, is inherited by his legal, instituted, or irregular heirs, whether suit has been instituted thereon by the survivor or not.
      “As used, in this article, the words ‘child’, ‘brother’, ‘sister’, ‘father’, and ‘mother’ include a child, brother, sister, father, and mother, by adoption, respectively.”

      . La.R.S. 2:1; 3:72; 3:551.1; 3:555.2; 3:555.3; 3:1622; 5:4; 6:1032; 9:1725; 9:2431; 9:4751; 10:1-201; 10:8-308; 12:402; 12:443; 17:1224; 17:2803; 22:5; 30:3; 30:904;- 30:1003; 32:1252; 33:2711.3; 33:4625; 34:801; 34:850.2; 34:851.2; 37:1963; 37:2352; 37:2582; 38:3101; 38:3073; 39:1484; 40:1299.39; 40:1471.2; 40:2009.2; 40:2102; 40:2202; 41:1704; 42:1111; 45:162; 45:200.2; 47:7; 47:301(8); 47:801; 49:213.3; 49:951; 51:911.22; 51:1053; 51:1101; and La. Code Crim.Proc. Art. 934.

      . Justice Dennis cites a number of doctrinal sources for his statements concerning interpretation of the law in Louisiana. Among them is former Justice Tate’s comment entitled, “Techniques of Judicial Interpretation in Louisiana,” 22 La.L.Rev. 727 (1962). Justice Tate’s comment recognizes the objective and the functional methods of statutory interpretation. These methods “place great emphasis upon applying the legislation so as to carry out the general social purpose of the legislation. This calls for consideration of the general policy reasons underlying the enactment of the legal precept— the general purpose behind its enactment to regulate in the abstract a certain conflict of interest, and the practical or equitable reasons for this purpose.” 22 La.L.Rev. at 733. Justice Tate also recognizes that in the field of tort law, unlike the field of property law and other areas of law in which inflexibility and unchanging rules are required because of the reliance persons place upon them, more flexibility is required, “since there the legal precepts revolve about reasonable standards of conduct, which themselves are evolving and changing as the circumstances of the society which spawns them change.” 22 La.L.Rev. at 748.

      . Prosser, Torts § 55 (4th ed. 1971). Dean Prosser cites Herzog, Medical Jurisprudence, 1931, §§ 860-975; and Malloy, Legal Anatomy and Surgery, 1930, 669-687.

      . For a collection of authorities, see 84 A.L.R.3d 432. Dean Prosser also discusses the viability problem. Prosser, Torts § 55 (4th ed. 1971).

      . It could be argued that since a wrongful death action is grounded on the defendant’s tortious conduct, and that a woman’s right of privacy entitles her to end her pregnancy at certain stages, the abortion is not tortious as to the fetus.

      . In awarding damages for the wrongful death of a stillborn, a trial judge can look to a number of factors to determine the extent of damages suffered by the parents. Some of the factors are: 1. the stage of pregnancy at which the stillbirth occurs; 2. the medical history of the mother with respect to previous childbirths; 3. the number of children the couple presently has; 4. whether the mother used artificial means to induce pregnancy, i. e., fertility drugs; 5. the probability of pregnancy going to full term; 6. any prior history of miscarriage; 7. prenatal care of the stillborn child; 8. parental preparation for the forthcoming child, i. e., house additions, baby crib and any other indi-cia of the degree of expectation exuded by the parents.

      . Wascom v. American Indemnity Corporation, 348 So.2d 128 (La.App. 1 Cir. 1977), writ refused, 350 So.2d 1224 (La.1977).


source: Caselaw Access Project

author: PER CURIAM: ELLIS, Judge, PONDER, Judge, CHIASSON, Judge, EDWARDS, Judge, LOTTINGER, Judge,

license: Public Domain

text:
    Daniel G. DIEFENDERFER, Jr., et al. v. LOUISIANA FARM BUREAU MUTUAL INSURANCE COMPANY et al.
    No. 12680.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 21, 1980.

      Jack Pierce Brook, of Jumonville, Broad-hurst, Brook, Miller, Dennis & Reed, Louis M. Corne, Lafayette, for plaintiffs-appellants.
    William C. Kaufman, III, of Seale, Smith & Phelps, Robert J. Vandaworker, of Taylor, Porter, Brooks & Phillips, Baton Rouge, for defendants-appellees.
   PER CURIAM:

Daniel G. Diefenderfer, Jr., plaintiff, appeals a trial court judgment granting defendants’ motion to strike and motion for summary judgment and dismissing plaintiff’s suit insofar as he sought damages for 1) the death of his unborn child, 2) the loss of his dead wife’s future wages, and 3) the loss of his dead wife’s future services. We reverse.

I. FACTS

On September 23,1976, Daniel G. Diefen-derfer, Jr. was driving an automobile owned by his mother, Norene. Passengers in the car were Lisa L. McClure Diefender-fer, wife of Daniel, and their unborn child of eight months.

The Diefenderfers were proceeding on Highway 190 until their vehicle rammed a truck and trailer which had improperly pulled across the highway and blocked it. The truck was owned by Harris Ducote and driven by Peter S. Ducote, both defendants in this case.

As a result of the collision, Lisa Diefen-derfer was killed. The unborn Diefender-fer child outlived Mrs. Diefenderfer but died in the womb. Daniel Diefenderfer was injured and Norene Diefenderfer suffered damage to her car.

II.PROCEDURE

Daniel Diefenderfer and his mother filed suit against defendants, Louisiana Farm Bureau Mutual Insurance Company, Southern Farm Bureau Casualty Company, Fireman’s Fund Insurance Company, Harris Ducote and Peter S. Ducote.

Plaintiff sought damages for 1) the loss of his unborn child, 2) injuries to his person, 3) the death of his wife, 4) the loss of future wages of his wife, 5) the loss of future services of his wife, and 6) the wrongful death action of his dead unborn child based on Mrs. Diefenderfer’s prior demise.

Defendants Louisiana Farm Bureau Mutual Insurance Company, Harris Ducote and Peter S. Ducote filed a motion to strike plaintiff’s demands for 1) damages based on the wrongful death action of the unborn Diefenderfer child, 2) damages based on the plaintiff’s loss of his unborn child, and 3) damages based on the loss of Lisa Diefen-derfer’s future wages and services. The motion’s basis was that these alleged damages did not satisfy LSA-C.C. 2315 and therefore were insufficient demands under LSA-C.C.P. Art. 964.

Defendant Fireman’s Fund Insurance Company filed a motion for summary judgment seeking dismissal of the same demands of plaintiff on the basis that they stated no cause of action under LSA-C.C. Art. 2315.

Both motions were granted by the trial court and the plaintiff’s challenged claims were dismissed.

III.PLAINTIFF’S LOSS OF HIS UNBORN CHILD

It is the holding of a majority of this court that plaintiff has a cause of action and can recover damages for the loss of his child which was stillborn as a result of the accident herein. Reasons for and against this holding will be assigned in concurring and dissenting opinions to be attached hereto.

IV.DAMAGES SUFFERED BY THE UNBORN CHILD

It is the holding of a majority of this court that plaintiff does not have a cause of action to recover for the personal injuries suffered by the unborn child in the accident. Reasons for and against this holding will be expressed in concurring and dissenting opinions, to be attached hereto.

V. ACTION OF THE UNBORN CHILD FOR THE WRONGFUL DEATH OF ITS MOTHER

It is the holding of a majority of this court that the unborn child, which briefly survived the death of its mother, has no cause of action for the wrongful death of its mother. Reasons for and against this holding will be expressed in concurring and dissenting opinions to be attached hereto.

VI. LOSS OF MRS. DIEFENDERFER’S FUTURE WAGES AND SERVICES

Plaintiff claims he sustained personal damages as a result of the death of his wife as follows:

(a) loss of future wages—$268,000.00;
(b) loss of future services—$200,000.00; .
(c) loss and deprivation of companionship, security, love and affection— $50,000.00;
(d) grief, mental anguish and distress over the death of his wife—$25,-000.00.

To the separate and distinct items of damages listed under (a) and (b) above, defendants filed a Motion to Strike which motion was sustained by the trial court and the claims for loss of future wages and future services were ordered stricken from plaintiff’s petition.

The question presented is whether plaintiff can list as separate items of damages “loss of future wages” and “loss of future services.”

Code of Civil Procedure Article 964 authorizes the court, after a hearing, to “order stricken from any pleading any insufficient demand . . . .”

Civil Code Article 2315 grants to survivors the right to “recover the damages which they sustained through the wrongful death of the deceased.”

Code of Civil Procedure Article 861 requires that when items of special damages are claimed, they shall be specifically alleged.

Loss of support has been allowed to the surviving husband in cases where the deceased wife was employed at the time of her death and was actually providing assistance in the form of financial contribution. In these cases the courts have held that the surviving husband had sustained an actual loss as a result of the lost earnings of his wife. Shipman v. Tardo, 304 So.2d 381 (La.App. 4th Cir. 1974), writs denied; Foster v. Marshall, 341 So.2d 1354 (La.App. 2nd Cir. 1977), writs denied.

Defendants contend that if the deceased spouse had no earnings at the time of her death, the surviving husband cannot assert as a separate item of damage a claim for loss of future wages.

Plaintiff’s petition which is the only evidence in the record at this time, does not allege that his wife had ever been employed or the amount of any of her past earnings. There is nothing in the petition which would support the separate itemization of the claim for loss of future wages.

If, as stated in plaintiff’s brief, the deceased wife had planned to work in the future, any damages for loss of future support would be nonpecuniary in nature and would be one of the elements to be considered in determining damages for her wrongful death. See Folse v. Fakouri, 371 So.2d 1120 (La.1979).

As to the loss of services, sometimes referred to as loss of consortium, the courts of this State have never allowed recovery therefor as a separate and special element of damages under La.C.C. art. 2315. The possibility of loss of future services as- a separate item of damages was discussed, but not decided, in the case of Marceleno v. State, Department of Highways, 367 So.2d 882 (La.App. 2nd Cir. 1978), writs denied 369 So.2d 1364 (La.1979). The court stated:

“Nonpecuniary loss, variously described in many cases as loss of love, affection, companionship, care, attention, nuture, (sic) guidance, society, consortium and like terms, is recoverable. Additionally, loss of support by a husband-father or a wife-mother, a pecuniary loss often times but not always categorized separately from nonpecuniary loss, is recoverable
“We have no doubt that the loss of a wife-mother’s services such as cooking, cleaning, housekeeping, and the like is a very real and substantial loss to the survivors and is a significant part of ‘the damages which they sustained through the wrongful death of the deceased’; hence, such damages are recoverable. We also recognize that the testimony of experts such as economists as to the value or cost of replacement of such services has value to the trier of fact, judge or jury, in the almost imponderable task of assigning a dollar amount to the survivors’ loss.
“We do not decide, and find it unnecessary to decide in this case, whether loss of services is properly a distinct category of damages; separate, apart and in addition to damages customarily described as loss of love and affection in Louisiana cases. The loss of such services does not necessarily result in direct financial and pecuniary loss to the survivors as does loss of a decedent’s earnings and support, and in that respect is different from loss of support. Certainly, as argued by defendant, services performed by a wife, and by a husband for that matter, are manifestations of love and affection. Our-view is that loss of such services has always been a consideration in determining damages in wrongful death cases in Louisiana, but has not heretofore been separately categorized as a pecuniary loss and assigned a separate dollar value.
“The reason we do not find it necessary to specifically approve or disapprove the award as categorized by the trial court is because we find the total award to the husband of $113,000 for damages, in addition to certain special damages, to be within the range of the trial court’s discretion. The facts of this case call for maximum award to Mr. Marceleno for the wrongful death of his wife.”

We agree with the reasoning in the quoted case that loss of services as a nonpe-cuniary loss is an element to be considered in determining damages in wrongful death cases.

In this case, the exact nature of the future services for which plaintiff seeks damages is not specified in his petition. There is nothing in the petition that would enable us to classify the alleged loss as a pecuniary one. We are of the opinion that in those cases where it is alleged that the surviving spouse has suffered, in addition to the customary services usually performed by the deceased spouse, a financial loss, i. e. a pecuniary loss, as a result of the loss of future services, then in that event plaintiff can assert a separate dollar value for such a loss in his petition. Absent fact allegations upon which the court can determine that a pecuniary loss is being claimed to have been suffered, the trial judge was correct in sustaining the Motion to Strike as to that separate item of damage.

While we are in accord with the trial judge’s action in sustaining the Motion to Strike, we are of the opinion that when such a motion is granted on the ground of “insufficient demand,” an opportunity to amend the pleadings to correct the deficiency, if possible, should also be granted.

Insofar as these claims are concerned, this matter is remanded to the trial court with instructions to fix a time limit within which plaintiff may amend his petition. If, at the expiration of the time, plaintiff has not amended his petition to justify the separate itemization of these two items, then they can be ordered stricken from the petition.

The judgment appealed from is therefore reversed insofar as it dismisses the claim of Daniel G. Diefenderfer, Jr. for damages for the death of his unborn child; and affirmed insofar as it dismisses his claims for damages in his capacity as “sole surviving heir” of the unborn child. That part of the judgment striking from the petition any claim by Daniel G. Diefenderfer, Jr. for loss of future wages and services of his deceased wife, is amended so as to grant Mr. Diefen-derfer the opportunity to amend his petition, within a delay to be fixed by the trial judge, so as to allege facts sufficient to support the said demands, the said demands to be stricken upon his failure to do so. Costs of this appeal shall be borne by defendants-appellees, with all other costs to await final disposition of the case on its merits. The .case is hereby remanded to the trial court for further proceedings in accordance with law.

AFFIRMED IN PART, REVERSED IN PART, AMENDED IN PART AND REMANDED.

LEAR, J., concurs.

ELLIS and PONDER, JJ., concur and assign reasons.

CHIASSON, J., concurs for reasons assigned by ELLIS, J.

EDWARDS, J., concurs for his reasons attached and also for the reasons assigned by ELLIS and PONDER, JJ.

SARTAIN,. J., concurs for reasons assigned by ELLIS and PONDER, JJ.

LOTTINGER, J., concurs and dissents for reasons assigned.

COLE, J., concurs and dissents for reasons assigned by LOTTINGER, J.

COVINGTON, J., dissents in part, for reasons assigned this date in Danos, La.App., 383 So.2d 1019, and concurs in part.

ELLIS, Judge,

concurring:

I believe that it is unnecessary to classify a fetus as a person, thing or non-person in order to reach the result herein. In my opinion, the fact that the prospective parents have lost a child, which would otherwise have been born normally, because of the wrongful act of another, is sufficient to create a right of recovery under the first sentence of Article 2315 of the Civil Code. The elements of fault and damage are clearly satisfied.

I do not believe that Articles 28 and 29 of the Civil Code were intended to cover a case such as this, when the death of the fetus is caused by the wrongful act of another. However, those articles do preclude the acquisition or transmission of a cause of action by the fetus, which, by law, never acquires personality if born dead.

I therefore concur in the result.

PONDER, Judge,

concurring.

I believe that the amendment to La.C.C. Art. 2315 in 1884 establishing the death action in Louisiana was stated sufficiently broadly to evidence an intent of the legislature to allow recovery for the deaths of unborn children. However, the legislature was establishing a death action. I find no evidence of intent to amend or repeal La. C.C. Arts. 28 and 29 so as to allow the transmission of property rights from or through the unborn child.

I therefore concur.

CHIASSON, Judge,

concurring.

I concur in this opinion for the reasons assigned by Judge Ellis.

EDWARDS, Judge,

concurring.

I agree with the holding that the parent has a cause of action and can recover damages for the loss of his unborn child. It seems to me that recovery is allowed under the broad umbrella of LSA-C.C. Art. 2315:

“Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.”

The parent(s) had a right to have a child, and to have that particular child. The deprivation of that right should be compensa-ble.

LOTTINGER, Judge,

concurring and dissenting.

I dissent from the denial of a cause of action for damages suffered by the unborn child and the denial of a cause of action by the unborn child for the wrongful death of its mother for the reasons assigned by me in my concurring opinion this day in Danos v. St. Pierre, No. 12755 on the docket of this Court, 383 So.2d 1019, and in all other respects I concur.

      . Norene Diefenderfer sought recovery for 1) the loss of love, affection, enjoyment and support of her daughter-in-law ánd unborn grandchild, 2) shock, physical and mental pain resulting from the death of her daughter-in-law and unborn grandchild, and 3) property damage to her car. The trial court dismissed all her claims save for property damage. Since she did not appeal, the judgment as to her has become final.

      . Southern Farm Bureau Casualty Company filed an exception of no cause of action and a motion for summary judgment on the basis that they were not the insurers of the Ducotes. Southern Farm was dismissed from the suit without opposition.


author: LOTTINGER, Judge.

text:
    William G. WASCOM et al. v. AMERICAN INDEMNITY CORPORATION et al.
    No. 12863.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 21, 1980.
    On Rehearing March 31, 1980.
    Writ Granted May 19, 1980.

      Lewis 0. Unglesby, Baton Rouge, for plaintiffs.
    Pelicien P. Lozes, New Orleans, for defendants, American Indemnity Corp., Tony LaRock and Mary Ann LaRock.
    John W. Anthony, Bogalusa, for defendant, Allstate Insurance Co.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   LOTTINGER, Judge.

This automobile accident case comes before us on appeal for the second time. In the first appeal (hereinafter referred to as Wascom I) this court decided on an exception of no cause of action that the parents of stillborn twins were not entitled to recover for the wrongful death of those twins. 348 So.2d 128 (La.App. 1st Cir. 1977), writ denied, 350 So.2d 1224 (La.1977).

Since our decision in Wascom I, we have had the opportunity on two occasions to review the legal decision enunciated in that case. As a result of that review Wascom I has been overruled. Danos, et al. v. St. Pierre, et al., La.App., 383 So.2d 1019; and Diefenderfer, Jr., et al. v. Louisiana Farm Bureau Mutual Insurance Company, et al., La.App., 383 So.2d 1032.

In an en banc sitting this court decided that the parents of a stillborn child which is killed through the tortious conduct of a third person have the right to recover damages for the wrongful death of the stillborn under the provisions of Article 2315.

The plaintiffs in the case at bar continue to question the propriety of our judgment in Wascom I. They claim that we erred in Wascom I, and we have agreed with them as indicated in the Danos and Diefenderfer cases. While the principal issues on this appeal in Wascom II concern causation and damages, plaintiffs still assert that they should have the right to recover for the wrongful killing of the unborn twins. Defendants, however, claim that the doctrine of the law of the case prohibits this court from reconsidering its previous decision in this case.

The law of the case principle relates to (a) the binding force of the trial judge’s rulings during later stages of trial, (b) the conclusive effects of appellate rulings at the trial on remand and (c) the rule that an appellate court will ordinarily not reconsider its own rulings of law on a subsequent appeal in the same case. The law of the case principle, however, is merely a discretionary guide. Reargument of a previously decided point will be barred where there is simply a doubt as to the correctness of the former ruling. However, in cases of palpable former error or in cases in which the law of the case principle, if mechanically applied, would lead to manifest injustice, the principle should not be applied. Petition of Sewerage & Water Board of New Orleans, 278 So.2d 81 (La.1973); Wall v. American Employers Insurance Co., 250 So.2d 172 (La.App. 1st Cir. 1971).

Because we have reversed our decision in Wascom I, and because we feel manifest injustice would result if we adhered to the law of the case principle in this particular case, we do not feel bound by that principle. Plaintiffs should have a right on remand to (a) prove that the automobile accident which is the” subject of this lawsuit had a causal connexity with the miscarriage of the twins and (b) if they prove the causal connection, to prove the measure of damages for both the mother and the father for the wrongful death. The trial court should consider these issues on remand.

We will not decide the issues of causation and quantum raised on this appeal because we believe that this case should be handled in toto rather than piecemeal.

Therefore, for the above and foregoing reasons, this case is remanded for the further taking of evidence consistent with the views expressed herein. The costs will be assessed by the trial court or when this case comes before us again on appeal.

REMANDED..

ON REHEARING

Our original judgment, on January 21, 1980, remanded this ease to the trial court for the further taking of evidence, because we believed that the plaintiffs should have the right to (a) prove that the automobile accident which is the subject of this lawsuit had a causal connexity with the miscarriage' of the twins, and (b) if the causal connection is proved, to ascertain the measure of damages for both the mother and the father for the wrongful death.

On application for rehearing, we are told that we did not have jurisdiction or authority to modify the award in favor of the plaintiffs-appellees because they neither appealed nor answered the appeal as required by LSA-C.C.P. art. 2133; that the “law of the case” principle is applicable to the question of whether or not damages are allowed for the alleged wrongful death of the fetus, because when this matter was first before us on appeal we affirmed the District Court’s judgment sustaining the defendants-appellants’ exceptions of no right and no cause of action on the ground that a wrongful death action can not be maintained for the death of a child never born alive. Wascom v. American Indemnity Corporation, 348 So.2d 128 (La.App. 1 Cir. 1977), writ denied, 350 So.2d 1224 (La.1977), referred to as “Wascom I;” and that the decision reached regarding whether or not recovery is allowed for the alleged wrongful death of a fetus was reached by this Court in Wascom I.

We granted a rehearing, to be submitted on briefs only, to reconsider our original judgment on this appeal in light of the questions raised in the application for rehearing. After carefully considering the legal authorities and the arguments contained in the briefs of the parties, we conclude that our original opinion on this appeal is correct. We adhere to that opinion and reinstate it as our opinion on this appeal. We believe that finality of a question of law (“law of the case” principle) and finality of litigation (res judicata) must yield where the interest of justice makes unfair the strict application of such principles. It was palpable error for us to have ruled in Wascom I that the parents of a stillborn child which is killed through the tortious conduct of a third person have no right to recover damages for the wrongful death of the stillborn under the provisions of LSA-C.C. art. 2315 in view of our en banc decisions on January 21, 1980, in Danos v. St. Pierre, La.App., 383 So.2d 1019 and Diefenderfer v. Louisiana Farm Bureau Mutual Insurance Company, La.App., 383 So.2d 1032, which overruled Wascom I. LSA-C.C.P. art. 2164 dictates that we must render “any judgment which is just, legal and proper upon the record on appeal.” We believe that the judgment we have rendered herein is the only “just, legal and proper” one we can render under the circumstances of the instant case.

Therefore, for the above and foregoing reasons, this case is remanded for the further taking of evidence consistent with the views expressed herein. The costs will be assessed by the trial court or when this case comes before us again on appeal.

REMANDED.

      . Writs were granted by the Supreme Court in these two cases on March 14, 1980.


author: GREENE, Judge.

text:
    HORACE MANN INSURANCE COMPANY v. CASUALTY RECIPROCAL EXCHANGE.
    No. 13024.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 1980.

      James H. Morgan, III, Baton Rouge, for plaintiff-appellee, Horace Mann Ins. Co.
    Boris F. Navratil, Baton Rouge, for defendant-appellant, Casualty Reciprocal Exchange.
    Before EDWARDS, LEAR and GREENE, JJ.
   GREENE, Judge.

This suit arises out of an automobile collision and the subsequent negotiations to settle the resulting claims undertaken by the insurers for each party to the accident. This suit involves only the alleged liability of one insurer to the other.

On April 4, 1974 a vehicle driven by Ralph B. Callens (Callens) collided with a vehicle operated by David Ellzey (Ellzey). Casualty Reciprocal Exchange (CRE) was Callens’ liability insurer. Ellzey had an accident and disability policy with Horace Mann Insurance Co. (Mann). Ellzey never made a claim against Callens or CRE but did collect more than $8,000 from Mann. After making the bulk of these payments Mann asserted as subrogee of Ellzey a claim against CRE and Callens.

On September 26, 1974 CRE responded to the claim asserted by Mann. In a letter sent to Mann on that date by the Central Louisiana Claims Service, CRE’s authorized claims representative, CRE informed Mann that its policy limits were $5,000 and offered this amount in exchange for a full release by Ellzey and Mann of both CRE and Callens from any further liability. CRE accompanied this letter with a draft made payable to both Mann and Ellzey in the amount of $5,000. Above the lines provided on the back of this draft for endorsement was typewritten the condition that, “By endorsement hereof payee hereby releases from any and all claims arising out of the accident of 4 — 4-74 against Casualty Reciprocal Exchange and Mr. & Mrs. R. B. Callens.”

Mann responded to this offer in a handwritten memorandum dated December 6, 1974 and addressed to CRE’s claim representative. In this memorandum Mann expressed its unwillingness to release Callens in exchange for CRE’s policy limits. Mann stated that it had already expended $3,462.33 in excess of the amount offered by CRE and still faced up to $204.20 exposure under the medical pay provisions of its policy and an unspecified amount of potential exposure under the disability provision of the policy. Mann informed CRE that it felt that Ellzey did not contemplate taking any further action against Callens or CRE and that Mann would be willing to fully release both CRE and Callens in exchange for CRE’s $5,000 policy limits and a promissory note from Callens for the excess amount already paid Ellzey by Mann and the projected amount of medical expenses that Ellzey’s doctors felt likely to be incurred up to Mann’s policy limits of $204.20. Mann ended this memorandum by asking CRE to “please relate the above proposal to Mr. Callen (sic).” Mann retained possession of the $5,000 draft sent by CRE.

The record is devoid of any further contacts between Mann or its insured and CRE or its insured during the period between this December 6, 1974 memorandum and February 14, 1975. However, it can be presumed that some form of negotiations continued because on February 14, 1975 CRE’s claims representative sent a letter to Mann purporting to communicate CRE’s and Callens’ acceptance of an offer by Mann to settle all claims arising out of the April 4, 1974 accident in exchange for $5,000 from CRE and $2,633.30 cash from Callens. CRE stated in this letter that it would secure a draft for this excess amount as soon as CRE received from Mann and Ellzey a release for $7,633.30. It was stipulated by counsel for both CRE and Mann that this letter was never received by Mann. Mann never sent the requested release and CRE never secured the additional funds.

There were no further communications between Mann or Ellzey and CRE or Cal-lens after this February 14, 1975 letter. April 4, 1975 was the anniversary date of this accident. Neither Ellzey nor Mann filed suit against CRE or Callens for the damages resulting from this accident by the end of that day. On May 8, 1975 Mann presented the $5,000 draft, for payment and was told that CRE had stopped payment on it some time after the anniversary date of the accident. On April 29, 1976 Mann filed suit against CRE seeking to recover the $5,000 policy limits of CRE’s liability insurance policy with Callens.

The trial court filed written reasons upholding Mann's contention. The court found that the understanding expressed by the February 26 letter was that Mann would negotiate the $5,000 draft it held from CRE and would later get a separate $2,633.30 by draft or note from Callens. The court interpreted this arrangement to have envisioned two separate and independent settlements, one between Mann and CRE, the other between Mann and Callens. The failure of Callens to carry out his agreement did not, the court felt, excuse CRE from its agreement to pay its $5,000. Accordingly, the trial court rendered judgment against CRE for $5,000 with legal interest running from the time of the dishonor of the $5,000 draft. CRE appeals. We reverse.

After a careful review of the record in this case it is our conclusion that no valid contract of transaction or compromise was ever confected between CRE and Mann. Louisiana Civil Code Article 3071 defines this species of contract.

“A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaming, balanced by the danger of losing.
This contract must be reduced to writing.”

If this type of contract is to have any validity it must possess the essential elements of any type of contract, including that of offer and acceptance. Branch v. Alexander, 231 La. 487, 91 So.2d 767 (1956). This threshold requirement has not been met in this case.

As we read the evidence in this case, there certainly existed a dispute between CRE and Mann that would have been subject to transaction or compromise. Without any determination of the existence or allocation of any fault Mann asserted that CRE and its insured were liable to Mann in an amount somewhere in the neighborhood of $8,400.00. CRE by its September letter and accompanying draft proposed to settle this claim. CRE offered Mann $5,000 in exchange for a full release of it and its insured from any further liability to Mann or its insured. Mann’s December memorandum in response to this offer stated Mann’s unwillingness to accept this amount, but indicated its willingness to settle the dispute for an additional $3,400 to $3,600 promissory note from Callens. The contents of this memorandum did not conform with the offer made by CRE in the September letter. The memorandum contained an entirely different proposal to settle the dispute between the parties. Hence no contract was then confected between Mann and CRE. Mann’s December memorandum must be read as a counter offer and a rejection of the original offer from CRE. Louisiana Civil Code Articles 1805, 1806; Wometco Communications, Inc. v. Luts, 357 So.2d 877 (La.App. 1st Cir. 1978), writ denied; Ekco Distributors, Inc. v. Moore, 355 So.2d 1047 (La.App. 4th Cir. 1978); Foster v. Tullos, 341 So.2d 85 (La.App. 3d Cir. 1976); Marine Chartering (Gulf) Ltd. v. Boland Machine & Manufacturing Co., Inc., 273 So.2d 316 (La.App. 4th Cir. 1973).

Neither did the February 14, 1975 letter from CRE to Mann confect an enforceable contract. The terms of this letter purported to accept an offer of settlement made by Mann although we have no evidence of such an offer having been made. But even assuming that the words of acceptance in this letter conformed to the terms of an offer of settlement made by Mann there would still be no contract. Articles 1797, 1809 and 1819 of the Louisiana Civil Code indicate that the act of acceptance of an offer must be communicated to the offeror in order for a contract to be confected. Both parties to this appeal agree that the February letter was never received by Mann. There is no evidence that Mann was made aware of this purported acceptance. Hence, acceptance was never communicated to Mann and no contract was entered into between Mann and CRE before prescription ran on the claim asserted by Mann.

Actually, the condition, of acceptance presented by CRE to Mann in this February 14 letter was never satisfied by Mann. The February letter read in pertinent part, “Please forward me a release signed by you and your insureds for $7,633.30, and I will secure the $2,633.30 and mail it to you. Your release will not be released until I secure a bank draft.” This letter, like the initial settlement offer from CRE in September, 1974, stressed the receipt by CRE of a release in favor of it and its insured, Callens. We feel that CRE effectively communicated to Mann the fact that such a release was a condition to and the principal cause for any obligation that it might undertake. No such release was ever executed by Mann. The exposure of Callens and CRE to liability was terminated only by running of the one year prescriptive period. Hence this condition never was satisfied by Mann and the express principal reason for CRE to settle was never achieved.

Mann contends, however, that no such release was required of it. Mann bases this argument on the fact that a release was contained in the draft originally submitted by CRE and that this release was effected when the draft was endorsed by Ellzey. We cannot agree. Mann would have this Court read the September letter and accompanying draft as an offer by CRE to Ellzey through Mann. This interpretation is not supported by the evidence. It must be remembered that the initial claim on CRE and its insured was made by Mann, and not by Ellzey. Further, the $5,000 draft was made payable to Mann and Ellzey and two signature lines were provided for endorsement. While it is true that Ellzey did endorse the draft timely Mann did not, choosing instead to reject this offer and submit to CRE and its insured a counter proposal of its own. CRE made one offer to Mann and Ellzey. This offer was no.t accepted by Mann and Ellzey. Mann did not attempt to deposit this $5,000 draft until after prescription had run and also after CRE had stopped payment on it. In order for CRE’s September offer to ripen into an enforceable contract, both Ellzey and Mann had to endorse the draft.

Mann also contends that under the facts of this case there existed an account stated in the amount of- $5,000 between CRE and Mann. Mann bases this argument on the statements made by CRE in its September letter that, “Mr. Callens carries 5/10/5 liability coverage. I have attached our draft for $5,000.00, which is our limit of liability, payable to your company and Mr. David Ellzey.” We do not see how this statement or any other facts of this case can be construed to evince an account stated. An account stated under our law is an acknowledgment by the debtor of the amount of an account due. James v. Fellowes and Company, 20 La.Ann. 116 (1868); Peterson Sales Company, Inc. v. C-Moore Glass, Inc., 296 So.2d 397 (La.App. 2d Cir. 1974); Red Barn Chemicals, Inc. v. Lassalle, 350 So.2d 1315 (La.App. 3d Cir. 1977). Nowhere in the evidence do we find an acknowledgment by CRE that it was liable to Mann or to Ellzey for any certain amount of money. All that we have is a statement by CRE of the maximum amount for which it could be held liable should liability be assessed against its insured, Callens. At no time does it appear that any fault or liability on the part of Callens or CRE was either admitted or established. Hence, no account stated has been created between CRE and Mann.

For the reasons assigned, the judgment of the district court is reversed. All costs are assessed to plaintiff-appellee.

REVERSED.

      . Louisiana Civil Code Articles 1805 and 1806 are particularly applicable to this case.
      Art. 1805. The acceptance to form a contract must be in all things conformable to the offer; any condition or limitation contained in the acceptance of that which formed the matter of the offer, gives him, who makes the offer, the right to withdraw it.
      Art. 1806. This takes place, even when more is promised than was demanded, or when less is offered than was required; for example, if a request is made to borrow fifty dollars, and the party answers that he will lend one hundred dollars; or, if the request be to borrow one hundred dollars, and the answer that fifty will be lent, there is no obligation in either case, without a further assent of the borrower to take the one hundred, in the first case, and the fifty in the other; for the proposal to borrow fifty does not necessarily imply an assent to borrow one hundred, nor does the proposal to lend one hundred necessarily imply a desire to lend only fifty. The modification or change of the proposition is, in all respects, considered as a new offer, and the party making it, is bound by the acceptance in the same manner as if the original proposition had been made by him.

      . Art. 1797. When the parties have the legal capacity to form a contract, the next requisite to its validity is their consent. This being a mere operation of the mind, can have no effect, unless it be evinced in some manner that shall cause it to be understood by the other parties to the contract. To prevent error in this essential point, the law establishes, by certain rules adapted to the nature of the contract, what circumstances shall be evidence of such consent, and how those circumstances shall be proved; these come within the purview of the law of evidence.
      Art. 1809. The obligation of a contract not being complete, until the acceptance, or in cases where it is implied by law, until the circumstances, which raise such implication, are known to the party proposing; he may therefore revoke his offer or proposition before such acceptance, but not without allowing such reasonable time as from the terms of his offer he has given, or from the circumstances of the case he may be supposed to have intended to give to the party, to communicate his determination.
      Art. 1819. Consent being the concurrence of intention in two or more persons, with regard to a matter understood by all, reciprocally communicated, and resulting in each party from a free and deliberate exercise of the will, it follows that there is no consent, not only where the intent has not been mutually communicated or implied, as is provided in the preceding paragraph, but also where it has been produced by—
      Error;
      Fraud;
      Violence;
      Threats.


text:
    Sterling COX v. Andrew L. CHASE, Chase Enterprises, Inc., and The Travelers Indemnity Company.
    No. 13125.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 25, 1980.

      Milton Osborne, Jr., Plaquemine, for plaintiff-appellee Sterling Cox.
    William A. Norfolk, Baton Rouge, for defendant-appellant The Travelers Indemnity Company and Chase Enterprises, Inc.
    Houston C. Gascon, III, Plaquemine, for defendant-appellant Andrew L. Chase.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   LOTTINGER, Judge.

This is a suit ex delicto brought by Sterling Cox against Andrew L. Chase, Chase Enterprises, Inc., and Travelers Indemnity Company, the insurer of Chase Enterprises, Inc., for injuries allegedly suffered when Chase, who was riding a motorcycle, hit Cox, who was riding a bicycle, on a street in Plaquemine, Louisiana. From a trial court judgment awarding the plaintiff $5,500.00 in general damages and $148.50 for medical expenses, the defendants have appealed.

At issue on appeal is whether the defendant was negligent, whether the plaintiff was contributorily negligent and, if negligence and contributory negligence are found, whether the defendant had the last clear chance to avoid the accident.

On April 6, 1978, the 20-year-old Cox accompanied a friend, Eugene Williams, to a small convenience store owned and operated by defendant Chase. Cox and Williams were both on bicycles. Williams entered the store, picked up a fifth of Thunderbird wine and ran out of the store without paying for the goods. Cox and Williams then left the store premises on their bicycles. The defendant, who was helping his clerk in the store at the time, noticed Williams leave the store without paying for the wine. He yelled for Cox and Williams to stop and when they didn’t, he gave chase on a small motorcycle he used for transportation around town.

When the two youths saw Chase approaching from the rear, Williams, the wine thief, threw the wine bottle to the ground where it burst to pieces. The defendant then proceeded to pass the two youths on his motorcycle and, when he had gotten 50 to 60 feet in front of them, he turned his motorcycle around and headed back towards them. At this time Williams was on the left side of the road (on the defendant’s right) and the plaintiff was on the right side of the road (on the defendant’s left).

The testimony as to what happened next, specifically as to how the accident occurred, was conflicting. The plaintiff testified that the defendant came back towards them and ran into the plaintiff’s bicycle. The plaintiff’s friend Williams said Chase attempted to hit him first, but when Williams maneuvered out of the way, Chase hit the plaintiff. The defendant testified that the plaintiff pulled in front of him, in the middle of the road, and the accident happened quickly thereafter. The defendant admitted that he was keeping more of an eye on Williams than on the plaintiff because Williams was the one who stole the wine. (Williams has since been convicted of shoplifting the wine). He said he could not avoid hitting the plaintiff when he realized that the plaintiff had pulled into his path.

The trial judge found as a fact that the defendant did not hit the plaintiff intentionally. He also found that the defendant was traveling only 10 to 15 miles per hour, that the accident occurred in the middle of the road and that the plaintiff should not have been in the middle of the road on a bicycle. However, he felt the defendant was negligent in not keeping a proper lookout because the defendant was focusing his attention on Williams instead of on the road in front of him. The plaintiff, too, was negligent, the trial judge felt, because the plaintiff should not have driven his bicycle in the middle of the road. Because the trial judge concluded that Chase was not keeping a proper lookout, and if he had been he could have avoided the accident, he rendered judgment in favor of plaintiff.

Defendants in brief conclude the trial judge used the doctrine of last clear chance to find in favor of plaintiff. We agree. After finding both plaintiff and defendant negligent, the only way the trial judge could have ruled in favor of plaintiff is by the application of the doctrine of last clear chance.

After closely examining the record, we conclude that the trial judge’s findings of fact cannot be reconciled with his conclusions of law. He found as a fact that the accident happened in the middle of the road, that Chase was not keeping a proper lookout, that Cox placed himself in Chase’s path, and that Cox then tried to extricate himself.

Conceding that Chase was negligent in not keeping a proper lookout and that Cox was contributorily negligent in placing himself in Chase’s path, we come to the issue of whether the trial court correctly applied the doctrine of last clear chance.

We hold he did not.

This court recently delineated the well known factors that must be proven before the doctrine of last clear chance will absolve a plaintiff of his own contributory negligence. First, the plaintiff must show that he was previously in a perilous position of which he was unaware or from which he could not extricate himself. Then, the plaintiff must show that the defendant discovered or could reasonably have observed the plaintiff’s danger. Last, the plaintiff must show that the defendant could have reasonably avoided the accident. Miller v. Carter, 346 So.2d 748 (La.App. 1st Cir. 1977).

The trial judge concluded that with the speed and power Chase’s motorcycle possessed, he could have avoided the accident. We cannot disagree with this conclusion. However, this is only the third and last element of last clear chance. We are not convinced that plaintiff has proven the first element — that he was in a position of peril of which he was unaware or from which he could not extricate himself. The record points out that Chase passed plaintiff and then after some 50-60 feet turned around and headed back. It is unclear at what point Cox placed his bicycle in the path of Chase, but it is obvious that when he did so, he knew what he was doing and of its danger. Thus he was aware of his perilous position.

We conclude that when Cox placed his bicycle in the path of Chase, knowing fully of the danger, and within sufficient time for Chase to avoid the accident, Cox himself had sufficient time to extricate himself from the danger. Plaintiff has failed to prove the first element of last clear chance. His own negligence precludes his recovery. Ortego v. State Farm Mutual Automobile Insurance Co., 295 So.2d 593 (La.App. 3rd Cir. 1974), writ refused 299 So.2d 800 (La.1974); Naquin v. Callais, 191 So.2d 885 (La.App. 1st Cir. 1966).

Therefore, for the above and foregoing reasons, the judgment of the trial court is reversed and plaintiff’s suit is dismissed. Plaintiff-appellee pays all costs.

REVERSED.

      . Chase Enterprises, Inc. is owned by Andrew L. Chase. Mr. Chase was an employee of this corporation and within the scope of his employment at the time of the accident. Throughout this report we will refer to all defendants collectively as Chase.