Freeman v. United States Casualty Co.

88 So. 2d 423, 1956 La. App. LEXIS 800
CourtLouisiana Court of Appeal
DecidedJune 14, 1956
DocketNo. 8500
StatusPublished
Cited by6 cases

This text of 88 So. 2d 423 (Freeman v. United States Casualty 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
Freeman v. United States Casualty Co., 88 So. 2d 423, 1956 La. App. LEXIS 800 (La. Ct. App. 1956).

Opinions

HARDY, Judge.

This suit was instituted for the recovery of damages by the eight surviving brothers and sisters of one Clyde H. Dodge who was killed in an automobile accident in Natchitoches Parish on July 8, 1954. The defendants, Foremost Dairies, Incorporated, its employee and driver of the truck involved in the accident, James Davis, and its insurer, United States Casualty Company, have admitted liability, and the only issue which has been concerned in this case . involved the fixing of the quantum of damages. The decedent was a resident of the State of California and plaintiffs are residents of the states of California, Arizona and Oregon. The record is made up of depositions of the plaintiffs in answer to written interrogatories, copies of decedent’s bank statements, and a copy of the succession proceedings with relation to decedent’s estate. On this testimony and exhibits the matter was submitted to the district court, which rendered judgment in favor of plaintiffs totaling the sum of $31,990.91, from which judgment defendants have appealed. Plaintiffs have answered the appeal, seeking an increase in the amounts awarded to each.

There is no dispute as to the sum of $990.91 representing funeral expenses, which amount was apportioned among the eight plaintiffs. Eliminating this item from consideration, the judgment awarded one sister of decedent, Mrs. Rhoda Dodge Freeman, the sum of $10,000, and each of the other plaintiffs, brothers and sisters of decedent, the sum of $3,000. It is evident from the record and judgment that a uniform allowance of $3,000 was made to each of the plaintiffs in the nature of damages caused by mental anguish, pain and suffering resulting from the news of the tragic death of their brother and deprivation of his companionship, love and affection. The additional sum of $7,000 awarded to Mrs. Freeman, over and above the uniform allowance made to each of the other plaintiffs, unquestionably is the measure of damages fixed by the district judge for her loss of material benefits and substantial contributions to her support and maintenance by her deceased brother.

Defendants contend that the allowance of damages in the instant case is grossly excessive in view of the precedents established by our jurisprudence in similar cases. To the contrary plaintiffs assert that the awards are inadequate, particularly in view of the presently decreased purchasing power of the dollar.

In considering these opposed contentions we have carefully examined all cases in our jurisprudence instituted by [425]*425brothers and sisters of decedents for the recovery of damages in cases of death resulting from negligence. However, before attempting an analysis of these cases, we think it well to point out certain principles which we regard as being too well established to require citation of authority. In the instant case there is no element of damages resulting from the pain and suffering of the decedent, inasmuch as his death was instantaneous. We think the right of these plaintiffs to recover for items of mental pain, suffering, anguish and shock, and for loss of love, affection and fraternal association, is no longer open to question. Nor can there be any basis for disagreement on the frequently iterated pronouncement that losses of this kind are not susceptible of exact measure in determination of monetary awards.

Counsel for defendants contend that the judge of the lower court erred in the award made in favor of Mrs. Rhoda Freeman because she was not entitled to recover anything upon the basis of allegedly uncertain and insufficiently proven contributions to her maintenance and support, which, at most, were mere gratuities. In support of this position counsel cite Eichorn v. New Orleans & C. R. Light & Power Co., 114 La. 712, 38 So. 526; Dowell, Inc., v. Jowers, 5 Cir., 166 F.2d 214, 2 A.L. R.2d 442, and Bourg v. Brownell-Drews Lbr. Co., 120 La. 1009, 45 So. 972. Conced-edly counsel rely, by analogy, upon the application of the cited cases, which are authority for the rule that a child is not entitled to recover for loss of contributions by a parent after reaching the age of 21 years, Eichorn v. New Orleans & C. R. Light & Power Co., and Dowell v. Jowers, both cited supra, nor a parent entitled to recover for loss of contributions by a major son until the parent, as a foundation for such recovery, has established a legal right to support because of need. Bourg v. Brownell-Drews, supra. Counsel argue that the cited'cases:

“ * * * clearly indicate that unless the survivors have some legal right to support from the decedent, they have no right to recover loss of contributions in an action for wrongful death. There is no provision in Louisiana law whereby a sister could claim the right of support from her brother.”

While we agree with the legal principle set forth in the above cited cases, we cannot accord with the conclusion drawn and the sweeping, general application contended by learned counsel. We think counsel failed to make the obvious distinction between loss resulting from the recognition or enforcement of a legal obligation and an equally material and compensable loss resulting from the voluntary assumption and discharge of a natural obligation. To conclude that the loss of support or contribution to support of a wholly or partially dependent sister by a brother is not an element of damages resulting from the wrongful death of the brother because our law does not require such support, would be to lend approval to a code of conduct more commensurate with an animal existence than with the dignity of human relations. We are not here concerned with the legally enforceable obligations which flow from statutory provisions, but with the actual pecuniary and material loss which has been sustained as a natural consequence of a tortious act. In our opinion there is no reasonable support for the contention that this particular plaintiff is barred from the recovery of damages resulting from the loss of material benefits, in the nature of contributions to support and maintenance, of which she has been deprived by the wrongful death of her brother.

Inasmuch as we have embarked upon a consideration of the claim of the plaintiff, Mrs. Rhoda Dodge Freeman, we think it advisable to proceed with a discussion of the appropriate facts which form the basis for our conclusion as to the award in her favor.

At the time of death Clyde H. Dodge was fifty-three years of age, and had a life expectancy of 18.79 years; the plaintiff, Mrs. Rhoda Dodge Freeman, was sixty-two years of age, with a life expectancy of 12.86 years. The relationship between [426]*426this sister and her brother appears, from the uncontroverted testimony in the record, to have been exceptionally close, affectionate and mutually helpful. Early in the year 1951 it was determined that Mrs. Freeman’s husband was affected with cancer of the throat, and, upon learning this distressing news, Mrs. Freeman immediately communicated with and turned for assistance and comfort to her brother, Clyde, who immediately proceeded to San Francisco, and removed his sister and her sick husband to his own home in Temple City, where he cared for them until Mr. Freeman’s death in the year 1952. After her husband’s death, Mrs. Freeman continued to make her home with her brother, where she was made most welcome and comfortable.

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Bluebook (online)
88 So. 2d 423, 1956 La. App. LEXIS 800, Counsel Stack Legal Research, https://law.counselstack.com/opinion/freeman-v-united-states-casualty-co-lactapp-1956.