Charles v. Liberty Mutual Insurance Co.

488 So. 2d 254, 1986 La. App. LEXIS 6976
CourtLouisiana Court of Appeal
DecidedMay 14, 1986
DocketNo. 85-120
StatusPublished
Cited by1 cases

This text of 488 So. 2d 254 (Charles v. Liberty Mutual Insurance Co.) 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
Charles v. Liberty Mutual Insurance Co., 488 So. 2d 254, 1986 La. App. LEXIS 6976 (La. Ct. App. 1986).

Opinion

DOMENGEAUX, Judge.

This appeal arises out of a suit for the wrongful death of an unborn illegitimate child filed by the purported natural father, Edmond Charles, plaintiff, against the defendants, Eastgate Corporation and East-gate’s liability insurer, Liberty Mutual Insurance Company.1 A jury awarded the plaintiff $20,000.00 for his damages. The defendants appealed the jury verdict and raise two specifications of error. The plaintiff has answered the appeal citing one specification of error.

Edmond Charles, the plaintiff, and Lou Anna Brown lived together without benefit of matrimony for two years prior to the accident which prompted this suit.

The defendant, Eastgate Corporation, was employed by a telephone company solely to lay telephone cable. Several days before the accident the Eastgate Corporation dug a four and one-half inch wide, twenty-four to thirty inch deep trench on the shoulder of a gravel road in front of the residence of the plaintiff and Lou Anna Brown. A telephone cable was laid down in the excavation, and the trench was then backfilled and packed by a tractor rolling a tire over the refilled furrow. No warning devices were placed upon the construction site to warn of the backfilled trench.

On December 17,1981, Lou Anna Brown, while driving the plaintiffs van approached the residence and attempted to park on the shoulder of the gravel road. The residence did not have a driveway. While she gradually veered onto the shoulder so as to park parallel to the roadway the right wheels of the van sank into the trench where the cable had been placed.

There is some dispute as to the abruptness with which the auto came to a stop and the severity of the impact between Ms. Brown and the vehicle’s interior. What is certain is that plaintiff found Ms. Brown unconscious and slumped over the steering wheel of the auto. An ambulance was summoned and Ms. Brown was transported to the hospital.

In the ensuing months Ms. Brown complained of and was treated for pain to her neck, back, and chest, as well as for abnormal vaginal bleeding allegedly caused by a traumatic miscarriage resulting from the auto accident. Approximately one year from the date of the accident Lou Anna Brown died.

On December 17, 1982, Edmond Charles filed suit alleging that he was the progenitor of the fetus which Lou Anna Brown was carrying and that as a result of the accident and the wrongful death of the fetus he was deprived of the pleasures of raising that child.

A jury trial was held and at the close of the trial the jury was presented with eight interrogatories to assist in the formulation of their verdict. The jury found that at the time of the accident Lou Anna Brown was pregnant, that Edmond Charles was the father of the fetus, that the accident was caused solely by the negligence of the Eastgate Corporation and that the accident was the cause of the fetus’ death. Based upon these factual findings the jury awarded Edmond Charles $20,000.00 in damages.

The defendants timely moved for a hew trial and a judgment non obstante veredic-to which were denied by the court.

[256]*256The defendants have appealed the jury verdict and raise two specifications of error; the plaintiff has answered the appeal seeking additional damages.

Specification of errors:

1. The trial court erred in failing to grant a directed verdict in favor of defendants and later in failing to grant a judgment notwithstanding the verdict in favor of defendants in that the evidence adduced at trial was simply insufficient to support a verdict by the jury.

2. The trial court erred in failing to grant a mistrial and later in failing to grant a new trial based upon plaintiff's attorney’s illegal and improper argument to the jury.

3. The jury erred in failing to award a higher amount to Edmond Charles for the loss of his unborn child.

SPECIFICATION OF ERROR NO. 1

The defendants aver that the evidence adduced at trial was insufficient to support a verdict by the jury. Essentially, the defendants argue that the testimony was inadequate to prove that Edmond Charles was the father of the alleged fetus or that Lou Anna Brown was indeed pregnant.

Mr. Charles testified that prior to this accident he and Lou Anna Brown had lived together for two years, that during this period they had slept together every night, and to his knowledge she was not intimate with anyone else. He further deposed that he had personal knowledge that she had not menstruated in three months, that as a couple they had no children and that he had a desire to rear a child which he had fathered with Ms. Brown.

Mr. Charles gave additional testimony that as the ambulance attendants transported Ms. Brown from the scene he noticed blood on the seat of the van. Plaintiff attests that on the evening of the accident, Ms. Brown was laying on the sofa and when she arose, there was blood on the sofa and a mass of either flesh or blood “full of hair” fell to the floor.

Ms. Brown was examined by Dr. John Tassin, on December 18, 1981, the day following the accident. He testified that on that visit Ms. Brown did not mention any vaginal bleeding nor the alleged aborted fetus.

Doctor Tassin again examined Ms. Brown on December 22,1981. On this visit is the first disclosure Ms. Brown makes of her vaginal bleeding and her belief that she had been pregnant. She informed Doctor Tassin that she had not had a period since September 18,1981, and that since the accident she had been passing blood and clots. Doctor Tassin noted that there was blood on the vaginal wall and that a pregnancy test done on Ms. Brown indicated negative. Doctor Tassin testified that forty-eight hours after a miscarriage a pregnancy test would read negative. Doctor Tassin stated that Ms. Brown’s uterus was a normal size and that a uterus “could” be normal five days after miscarriage.

Doctor Tassin continued to treat Ms. Brown for whiplash, and on April 27th, he had her go to Charity Hospital for a dilation and curettage (commonly referred to as a “D & C”) to treat the vaginal bleeding. After the D & C was performed Ms. Brown was diagnosed as having menorrhagia or abnormal vaginal bleeding.

Doctor Tassin informed the court that there were two possible causes for Ms. Brown’s menorrhagia, either she had not passed all of the placenta or she had a tumor.

Doctor Tassin stated that a trauma such as an auto accident can cause a miscarriage. He testified that it was “possible” that Ms. Brown was pregnant and had suffered a miscarriage.

In response to the plaintiff’s attorney’s hypothetical, Doctor Tassin stated that based upon a three month time span with no menstrual bleeding, the accident, and the abnormal bleeding it was “quite possible” that Ms. Brown was pregnant at the time of the accident and had suffered a miscarriage.

On cross-examination Doctor Tassin stated that his notes indicated that Ms. Brown had admitted to him that she had had a tubal ligation. Both Doctor Tassin and Mr. [257]*257Charles attested that they did not see a scar on Ms. Brown’s abdomen which would have indicated that a tubal ligation would have been performed. Normally a ligation of the fallopian tubes requires a rather large incision which leaves a noticeable four inch scar.

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Bluebook (online)
488 So. 2d 254, 1986 La. App. LEXIS 6976, Counsel Stack Legal Research, https://law.counselstack.com/opinion/charles-v-liberty-mutual-insurance-co-lactapp-1986.