Spears v. Travelers Insurance Co.

241 So. 2d 303, 1970 La. App. LEXIS 4695
CourtLouisiana Court of Appeal
DecidedNovember 16, 1970
DocketNo. 8101
StatusPublished

This text of 241 So. 2d 303 (Spears v. Travelers 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
Spears v. Travelers Insurance Co., 241 So. 2d 303, 1970 La. App. LEXIS 4695 (La. Ct. App. 1970).

Opinion

PICKETT, Judge.

This is a suit in tort instituted by plaintiff against the defendant, the insurer of the Town of Rosedale, Louisiana, to recover damages for the loss of her four-year-old son, Lonnie Scott, who died as a result of drinking some poisonous weed killer from a barrel on the open premises owned by the Town of Rosedale, Louisiana. The defendant answered, alleging its insured, the Town of Rosedale, was free of fault, and in the alternative alleged contributory negligence on the part of the plaintiff. After a trial on the merits, the district court granted plaintiff a judgment against the defendant in the sum of $7,869.60, together with interest thereon at the rate of five per cent per annum from date of judicial demand, May 27, 1968, until paid, and all court costs. The defendant has appealed. The plaintiff has answered the appeal, and asked that the award be increased to $25,-369.60, together with legal interest and costs of court.

The pertinent facts of this lawsuit are not disputed. The evidence shows that in the late afternoon, on July 15, 1967, the [304]*304plaintiff together with a friend, Esther Mae Hawkins Gibson, took her two minor sons, Depeteria, age five years, and Lonnie, age four years, to the barber shop in Rosedale, Louisiana, to get their hair cut. The barber shop to which the plaintiff had taken her children was located some 50 or 60 feet southwest of a three-sided metal shed, or barn, owned by defendant’s insured, and used' by it to store a tractor and other equipment and materials. The metal shed is located on a lot owned by the Town of Rosedale and is about 75 feet south of the Highway and in the southwest quadrant of the highway intersection. There is an enclosed area in the shed in which the Town of Rosedale stored gasoline and tools and which was kept locked. Outside of the above mentioned shed, against the west wall thereof, there was a 55 gallon barrel of poison used by the Town of Rosedale to control weeds along its streets and roads and in its ditches. The barrel of weed killer, which was fitted with a faucet or spigot on one end, rested on a piece of concrete culvert with the spigot pointing downward about two and one-half feet above ground level. The barrel containing the poison did not have any kind of locking device to prevent the contents from being drained out of the barrel.

When Lonnie and his older brother had finished their hair cuts, they went out in front of the barber shop to play. In a few minutes after the children had gone out to play the older child ran back to the barber shop and reported that Lonnie had drunk water from the barrel. The plaintiff learned the barrel contained poison, and she went to a nearby bar to get someone to take Lonnie to a doctor. Rudolph Trosclair, who had an automobile, carried the plaintiff to see Dr. E. L. Major who was found at the home of his son a short distance away. At the time plaintiff reached Dr. Major, her son was already vomiting and showing signs of serious illness. Acting upon the advice of Dr. Major, Rudolph Trosclair took the plaintiff and her son to the Baton Rouge General Hospital where the child was seen by Dr. Clifton T. Morris. Dr. Morris, who testified by deposition, said the child was vomiting and frothing mucus out of his mouth when he saw him. He gave the child the medication his condition indicated. He washed out his stomach, ordered a suction machine, and placed him under an oxygen tent. However, notwithstanding all the medical aid that was rendered, about one o’clock July 16, 1967, Lonnie Scott died as a result of the ingestion of the weed killer.

The trial court gave no written reasons for judgment. In this court the plaintiff contends both in brief and in oral argument that the attractive nuisance doctrine is applicable. On the other hand, the defendant forcefully contends that a showing of an attractive nuisance is absent. With regard to the attractive nuisance doctrine, defendant cites the following requisites for the application of that doctrine as set forth in Saxton v. Plum Orchards, 215 La. 378, 40 So.2d 791:

“1. That the injured child was too young to understand and avoid danger.
2. That there was reason to anticipate the presence of such children, either because of some attraction on the premises, or because the danger was in some place where children had a right to be.
3. That there was a strong likelihood of an accident.
4. That the danger was one other than those ordinarily encountered.
5. That the precautions not taken were such as a reasonably prudent person would have taken under the circumstances.”

The plaintiff in support of her contention that the undisputed facts in this case establish negligence on the part of defendant’s insured, its agents and employees cites Westerfield v. Levis, 43 La.Ann. 63, 9 So. 52; Hunt v. Rundle, 10 La.App. 604, 120 So. 696, 697; and 10 A.L.R.Zd 22. In [305]*305Hunt v. Rundle, a plumber’s employee who had been doing some plumbing work at plaintiff’s residence, left a five-gallon can containing gasoline under plaintiff’s dwelling. The gasoline container was not properly sealed. The plaintiff’s seven year old son took some gasoline from the can to a playhouse on the premises and used it to start a fire which ignited the child’s clothing and burned him. In allowing recovery, the court said:

“It is well recognized that the degree of care to be exercised in storing dangerous articles is commensurate with the dangerous character of the article, and it cannot be said that a commodity, such as gasoline, which is in general use, and which known, or should be known, to have access to the place, as would be the case as to substances which are recognized is not inherently dangerous, must be kept with the same degree of care as to the place of storage and persons who are as inherently dangerous; however, it must be conceded that some degree of care is required in storing gasoline, the presence of which is recognized as increasing the danger from fire, and as dangerous in the hands of children, who are not familiar with its properties, and we do not think that the workman of defendant, in storing the gasoline under plaintiff’s residence, where it was easily accessible to children of whose presence he was aware, can be said to have exercised the slightest degree of care, either with respect to the place which he selected to store the gasoline or with regard to the children, whom he knew had access to the place.”

There is no doubt but that the weed killer which Lonnie Scott drank was a deadly poison and, hence, a dangerous agent or instrumentality. Dr. Chester A. William, Jr., the coroner of East Baton Rouge Parish, testified that the active toxic ingredient in the weed killer was an arsenic compound. He expressed the opinion that because of the child’s age, that without immediate lavage of the stomach, the ingestion of the compound would be fatal. He said that he did not believe that treatment after an hour would have been effective. Dr. Major testified that when he saw the child, it was vomiting a mucus that was typical of arsenic poisoning. Dr. Clifton T. Morris, Sr., expressed the opinion that all of the child’s symptoms and his resulting death were consistent with the ingestion of a weed killer containing sodium arsenite. Mr. Gilbert Cook, the mayor pro tem, testified that the barrel containing the weed killer had a label showing that the contents of the barrel was poisonous. In answer to Interrogatory No.

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Related

Gaspard v. LeMaire
158 So. 2d 149 (Supreme Court of Louisiana, 1963)
Saxton v. Plum Orchards, Inc.
40 So. 2d 791 (Supreme Court of Louisiana, 1949)
Westerfield v. Levis Bros.
43 La. Ann. 63 (Supreme Court of Louisiana, 1891)
Hunt v. Rundle
120 So. 696 (Louisiana Court of Appeal, 1929)
Embry v. Reserve Natural Gas Co.
12 La. App. 97 (Louisiana Court of Appeal, 1929)

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Bluebook (online)
241 So. 2d 303, 1970 La. App. LEXIS 4695, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spears-v-travelers-insurance-co-lactapp-1970.