Adams v. State Fair of Louisiana

• Citation: 11 F.2d 295
• Decision Date: 20 January 1926
• Docket Number: No. 1485.,1485.
• Parties: ADAMS et ux. v. STATE FAIR OF LOUISIANA.
• Court: U.S. District Court — Western District of Louisiana

11 F.2d 295 (1926)

ADAMS et ux. v. STATE FAIR OF LOUISIANA.

No. 1485.

District Court, W. D. Louisiana, Shreveport Division.

January 20, 1926.

Jones, Sexton, Buck & Jones, of Fort Worth, Tex., and Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, La., for plaintiff.

Crain, Jackson & Johnston and B. F. Roberts, all of Shreveport, La., for defendant.

DAWKINS, District Judge.

Plaintiffs, citizens of the state of Texas, sued the defendant, a Louisiana corporation, for the death of their minor son, alleged to have been killed through the fault of defendant, on October 21, 1923. Defendant filed exceptions of no cause of action, but, before they were decided, petitioners moved to amend, and the matter now to be decided is a motion to strike out the supplemental petition.

The contention of defendant is that the amendment sets up a new cause of action, barred by prescription under the Louisiana law, which it pleads. In substance, the original petition alleged that the plaintiffs, with their said son, were visitors to the fair annually conducted by the defendant, having paid the admission required for that privilege, and that through the negligence of the latter in conducting an automobile race their said son was killed; that one of the cars, because of defects in the track and the railing surrounding it, plunged through the railing and crushed out the life of the deceased; and as the basis of their right to recover they further alleged as follows:

V. "Plaintiffs state that, at the time that said decedent was killed, he was a male youth of approximately the age of 12 years, and lived with the plaintiffs upon their farm, where he engaged in labor of all kinds that is required upon a farm, and that he was a strong, able-bodied boy, and able to do a great deal of work upon such farm, which work was of great value to the plaintiffs and each of them, and that by reason of the death of their said decedent the plaintiffs and each of them have lost the services of their said decedent between the death of such decedent and the time he would have reached the age of 21 years of age, to their very great damages, in the sum of $25,000."

VI. "The plaintiffs and each of them state that, after their said decedent had reached the age of 21 years, he would have been able to earn considerable sums of money, and would have contributed from such sums a considerable proportion thereof to the maintenance and assistance of the plaintiffs and each of them throughout their life, and that the aid and assistance so received by the plaintiffs and each of them would have exceeded in value the sum of $10,000, and that by reason of the loss of such aid and assistance the plaintiffs and each of them have been damaged in the sum of $10,000."

The supplemental petition consists of two paragraphs and a prayer, as follows:

I. "That the services which it is alleged their deceased son was able to do and did perform for the plaintiffs, as set out in paragraph 5 in the original petition herein, were such services and labor as were necessary to the welfare, aid, and support of the plaintiffs, and each of them, and that said plaintiffs, and each of them, were at all times mentioned herein in need of such services, and that they will in the future continue to be in need of such services; that the plaintiffs, and each of them, will in the future need such aid and money and other support as would have been contributed to them by said decedent after he had reached the age of 21 years."

II. "That by reason of the death of plaintiffs' said son, as hereinabove alleged, they and each of them have suffered great mental pain and anguish, and great grief because of the sudden and untimely killing of their said son, and because of the loss to the plaintiffs, and each of them, of the companionship of their said son, they and each of them have been damaged in the sum of ten thousand ($10,000.00) dollars.

"Wherefore plaintiffs pray that this supplemental and amended petition be filed, served, and allowed; that, after proceedings had, there be judgment in their favor and against the defendant as originally prayed; also for ten thousand ($10,000.00) dollars damages resulting from the pain and mental anguish and suffering endured by the plaintiffs, and each of them, as a result of the loss of their said son. They further pray for costs and such additional relief as the law, equity, and the facts developed upon the trial of the case may justify."

It is thus seen that in the original petition all the facts as to the cause of death, the relation of the decedent to plaintiffs, the fact that he was living with them, etc., were set forth; but relief was asked under the theory of the Texas law — that is, that the parents were entitled to the earnings of their child during minority and thereafter under certain conditions. However, after the argument in support of the exception of no cause of action had been submitted, plaintiffs asked to amend for the purpose of recovering under the Louisiana law, as for mental anguish, suffering, and the loss of companionship of their said son.

The right of one person to recover for the death of another arises in Louisiana from article 2315 of the Revised Civil Code, which reads as follows:

"Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it; the right of this action shall survive in case of death in favor of the children or widow of the deceased or either of them, and in default of these in favor of the surviving father and mother or either of them, and in default of any of the above persons, then in favor of the surviving brothers and sisters or either of them, for the space of one year from the death; provided that should the deceased leave a widow together with minor children, the right of action shall accrue to both the widow and minor children; provided further, that the right of action...