Ryals v. Home Ins. Co.

410 So. 2d 827
CourtLouisiana Court of Appeal
DecidedFebruary 3, 1982
Docket8578
StatusPublished
Cited by24 cases

This text of 410 So. 2d 827 (Ryals v. Home Ins. 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
Ryals v. Home Ins. Co., 410 So. 2d 827 (La. Ct. App. 1982).

Opinion

410 So.2d 827 (1982)

William E. RYALS, Sr., et al., Individually and as Administrator of the Estate of the Minor, William E. Ryals, Jr., Plaintiffs & Appellants,
v.
HOME INSURANCE COMPANY, et al., Defendants & Appellees.

No. 8578.

Court of Appeal of Louisiana, Third Circuit.

February 3, 1982.
Rehearings Denied March 23, 1982.

*829 Davis & Simmons, James L. Davis and Kenneth N. Simmons, Many, for plaintiffs & appellants.

Cook, Yancey, King & Galloway, Herschel R. Richard, Jr., Shreveport, for defendants & appellees.

Before CULPEPPER, FORET and CUTRER, JJ.

CULPEPPER, Judge.

This is a personal injury suit filed by the parents of a child, Eddie Ryals, who was injured when he was caught in the pumping unit of an oil well owned and operated by defendant's insured, Alpha Oil & Gas Company, Inc. (hereinafter Alpha). Suit was filed September 16, 1980 against Home Insurance Company, Alpha's liability insurer, and two individual employees of Alpha, for medical expenses, the child's personal damages, and damages for the mental and emotional distress of the parents. The trial court sustained defendants' exception of no cause of action to the parents' claim for damages for their mental and emotional distress. After a lengthy trial, the jury returned a verdict in favor of the plaintiffs awarding $100,000 for the child's damages and $58,000 in medical expenses. From the judgment rendered in accordance with the verdict, plaintiffs appeal. Defendant Home Insurance Company answered the appeal.

Numerous issues are urged for our consideration. Plaintiffs' substantial contentions are as follows:

1) That the parents' claim for their mental and emotional distress suffered as a result of their child's injuries should be allowed;
2) That the following conduct by the trial judge amounted to a comment on the evidence and/or was an expression of his opinion to the jury:
(a) Exclusion of photographs of the child sought to be introduced as evidence of his pain and suffering;
(b) Omission of an interrogatory to the jury concerning the issue of attractive nuisance;
(c) The judge's offer to submit to the jury a written copy of jury instructions;
(d) The allowance of a recess between the charge to the jury and the submission of the case to the jury, for the purpose of correcting a verdict interrogatory;
(e) The inadequacy of jury instructions concerning the effect of the parents' negligence on the child's recovery and *830 the omission of a charge as to the credit due the insurance company against any award of medical expenses;
3) That the jury erred in its finding that the individual defendants, E. B. McCaslin and Cecil Sepulvado, were not negligent;
4) That the jury's award of $100,000 for the child's damages was so low as to constitute an abuse of the jury's discretion;
5) That the trial court erred in denying plaintiffs' motion for an additur or, in the alternative, a new trial;
6) That the trial court erred in excluding testimony, affidavits and statements by the jurors sought to be introduced on the motion for a new trial for the purpose of impeaching the jury verdict;
7) That the conduct of the trial court constituted deprivation of plaintiffs' right to due process of law and equal protection of the laws.

Defendant, Home Insurance Company, contends the jury erred in finding that Alpha was negligent, that there was no negligence on the part of Eddie's parents, Mr. and Mrs. Ryals, and also in finding that Eddie himself was not contributorily negligent.

FACTS

The facts are these. Alpha Oil & Gas Company owns and operates an oil well located in Block 19 of the town of Converse, Louisiana. Defendant McCaslin is the superintendent in charge of Alpha's operations in the Converse area. The actual production by the well in question is attended to by defendant Sepulvado, a pumper employed by Alpha.

The well is a "stripper", producing approximately one barrel of oil per week. Because the well runs out of oil after pumping a certain length of time, it is operated on an automatic time clock, set so that the pump will begin pumping at certain hours during the day, pump for a certain length of time, and then turn off. The schedule is determined by the pumper responsible for the operation and gauging of the well. This well is located behind the backyard of the mobile home in which Eddie Ryals and his parents reside, also in Block 19 in Converse, only a little over 200 feet away from the home. There was no fence around the well, no warning sign or other devices to indicate that the pump was operated by an automatic time clock and subject to being activated automatically and without warning at a given moment.

On September 24, 1979, Eddie, 8 years old at the time, and his sister, Angela, age 10 at the time, went into the wooded, overgrown area behind their house in search of birds. In the course of their search, they wandered into the area around the pumping unit. Eddie climbed onto the pumping unit, which was shortly thereafter activated by the time clock. His lower body was caught in the mechanism and he was thrown around and around, receiving severe injuries.

His sister pulled him out of the pump. He was rushed first to the Converse hospital and then to Schumpert's Medical Center in Shreveport, where he remained hospitalized until November 12, 1979. He suffered serious, life-threatening complications and permanent disability.

CLAIM FOR MENTAL AND EMOTIONAL DISTRESS

The first issue addressed is the plaintiffs' contention that the trial court erred in sustaining the defendants' exception of no cause of action to the claims of William E. Ryals, Sr. and Betty Ryals for damages for their mental and emotional distress as a result of the injuries to their child. The rule has long been established in Louisiana that there can be no recovery for emotional distress or mental suffering resulting from personal injuries sustained by another person. Black v. Carrollton Railroad, 10 La.Ann. 33 (La.1855); Sperier v. Ott, 116 La. 1087, 41 So. 323 (La.1906). Despite the criticism of the long line of jurisprudence echoing this rule, [See Stone, Ferdinand F., La.Civ. Law Treatise Tort Doctrine, Vol. 12, Secs. 170-171 (1977)], the *831 Louisiana Supreme Court's consistent denial of writ applications in cases holding such mental anguish and suffering to be noncompensable necessitates our conclusion that this rule of law is still controlling. Wascom v. American Indemnity Corporation, 348 So.2d 128 (La.App. 1st Cir. 1977), writ denied 350 So.2d 1224 (La.1977); Steele v. St. Paul Fire & Marine Insurance Company, 374 So.2d 658 (La.1979); Parker v. St. Paul Fire & Marine Insurance Company, 338 So.2d 700 (La.1976). See also Brauninger v. Ducote, 381 So.2d 1246 (La. App. 4th Cir. 1980); Bertrand v. State Farm Fire & Casualty Company, 333 So.2d 322 (La.App. 3rd Cir. 1976). Any departure therefrom must come from the Supreme Court. Therefore, we affirm the trial court's judgment denying these plaintiffs recovery for mental and emotional distress as a result of their son's accident and injuries.

CONDUCT OF THE TRIAL JUDGE

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