Andrus v. White

101 So. 2d 7
CourtLouisiana Court of Appeal
DecidedApril 21, 1958
Docket4552
StatusPublished
Cited by13 cases

This text of 101 So. 2d 7 (Andrus v. White) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Andrus v. White, 101 So. 2d 7 (La. Ct. App. 1958).

Opinion

101 So.2d 7 (1958)

Lynn ANDRUS, Natural Tutrix of Steven Keith Miller, Minor,
v.
Donald Wayne WHITE and Hardware Mutual Casualty Company.

No. 4552.

Court of Appeal of Louisiana, First Circuit.

February 3, 1958.
Rehearing Denied March 17, 1958.
Writ of Certiorari Granted April 21, 1958.

*8 Dubuisson & Dubuisson, Opelousas, for appellant.

Jack C. Fruge, Ville Platte, for appellees.

ELLIS, Judge.

Lynn Andrus, the duly confirmed and qualified tutrix of Steven Keith Miller, the minor son of James Bernard Miller who was killed in an automobile accident while a guest passenger on January 27, 1956, brought this action for damages incurred by the minor as a result of decedent's untimely death.

After a trial on the merits with written reasons the District Judge rendered judgment in favor of the plaintiff in the amount of $20,500 together with legal interest thereon at the rate of 5% per annum.

Defendants appealed and it is agreed that the only question before this court is one of quantum. The basic question is whether the amount rendered by the District Judge is manifestly erroneous.

The first item of damages which was disallowed by the district court was expenses of the funeral in the sum of $1,369.50 and hospital expenses in the sum of $213.50, or a total of $1,583. At the trial, counsel for plaintiff offered statements to support these damages which were admitted by defendant to be correct, and the latter made the following objection:

"To which offering counsel for defendants objects on the ground that these bills are for the death of the deceased; that the plaintiff in this case is the divorced wife of the deceased, she having been divorced prior to the time of his death. The suit is by the divorced wife, as tutrix, for and on behalf of the child which was allegedly the offspring of the marriage between the decedent and plaintiff. It is defendant's position that the plaintiff cannot sue for these items of damages for and on behalf of the child, unless it be shown that the child, himself, with the consent of the mother, incurred these expenses. The right of action under Article 2315 would not lie in the child for these items, and the tutrix *9 has not the right to seek these damages. The administrator of the deceased's estate could be the only person to sue for these damages, unless it is shown that someone actually accepted responsibility for these damages, and the child could only accept responsibility for these damages if, under benefit of inventory, the father's estate was accepted by the child with authority of court."

The District Court admitted the evidence subject to the objection but denied in his judgment the right of the beneficiary, that is, the minor son, through the natural tutrix, to collect these sums, for the following reasons:

"During the trial, counsel for defendants objected to any evidence for the amount of funeral and hospital expenses, on the ground that there was no allegation that the minor had actually paid such expenses. The testimony of deceased's father, Mr. Emile Miller, shows that the hospital bills and funeral expenses were actually paid by him, and the minor has not been called upon for reimbursement, nor is it likely that he or his estate will be held for same. Counsel for plaintiff argues that since the administrator of a succession cannot sue for such expenses, Young v. McCullium, La.App., 74 So.2d 339, then such right should accrue in favor of the beneficiary listed in LSA-C.C. Article 2315. Defendant relies on the case of Pegg v. Toye Brothers Yellow Cab Co., La.App., 167 So. 896, and argues that unless the item of expense in question was actually paid by the plaintiff he has no right to claim reimbursement therefor. The Court is of the opinion that this item of damage should be disallowed, in view of the testimony in the record that all such expenses were paid by the father of the deceased who makes no claim."

Counsel for the defendant in his brief follows the lines of his objection on the trial of the case, relying upon Pegg v. Toye Bros. Yellow Cab Co., supra [74 So.2d 340], and distinguishing the case of Young v. McCullium, supra, decided by this court in which an uncle had paid the funeral expenses of the deceased and after qualifying as administrator of the latter's succession sought to recover the amount. We held in affirming a judgment of the lower court that there was no right or cause of action in favor of the plaintiff as Article 2315 "limits the rights given therein to the parties mentioned in the article. Nowhere in the said article are the said rights given to the administrator of a succession, nor to a creditor, nor to an uncle of the deceased. It is clear, therefore, that petitioner has no right of action under the provisions of Article 2315."

This court has in effect held that the beneficiary under Article 2315 can sue for funeral expenses and of course medical expenses, in this case, the hospital bill.

Counsel for defendant argues that one must be the ranking beneficiary and have paid or become liable for such expenses. In the present case he argues that if the minor had been put in possession of his father's estate by virtue of a court order, after benefit of inventory which would have made his, the minor's, estate liable for the deceased's debt, this item would constitute a valid claim for damages. Counsel for defendant then concludes: "But as the matter now is, no one can recover for these charges." We choose to follow our ruling in Young v. McCullium, supra, and therefore hold that the beneficiary, in this case, the minor son, through his tutrix can recover these funeral and hospital bills amounting to $1,583.

The record reveals, and counsel for both parties agree, that the deceased became unconscious immediately as the result of the accident and remained unconscious until his death some forty hours later. There is no evidence whatsoever of any suffering by the deceased during his last unconscious hours. The judge below, however, stated: "The court feels, however, that under the circumstances here presented, where *10 deceased suffered a crushing head injury, and did not die until almost two days after, nominal damages at least should be granted, and consequently we will award such damages to the minor in the sum of $500.00." If there was a scintilla of evidence of any suffering or pain on the part of the deceased by his actions or otherwise during his unconscious hours from the time he was injured until his death we would not hesitate to affirm or increase, if the evidence justified, the award for this item. We cannot assume nor substitute an unsupported belief that he must have suffered, in the absence of competent testimony that should and could have been produced if it were true.

The remaining claims in this case are composed of, one, for loss of love and affection, companionship and guidance, and, secondly, support and education. For these the District Court awarded the sum of $20,000. This award was based upon the following excerpts from the written reasons for judgment of the lower court as follows:

"The minor's claim in this instance includes the action for suffering and pain endured by his father as a result of the accident in question, as well as his own damages, encompassing the generalities of loss of support until reaching majority, loss of love and affection, companionship, guidance and education, and the remaining elements composing the parent-child relationship.

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Bluebook (online)
101 So. 2d 7, Counsel Stack Legal Research, https://law.counselstack.com/opinion/andrus-v-white-lactapp-1958.