Allen v. Burrow

• Decision Date: 01 April 1987
• Docket Number: No. 18555-CA,18555-CA
• Citation: 505 So.2d 880
• Parties: W. Eugene ALLEN, et al., Plaintiffs-Appellants, v. Carolyn Sue BURROW, et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 880

505 So.2d 880

W. Eugene ALLEN, et al., Plaintiffs-Appellants, v. Carolyn Sue BURROW, et al., Defendants-Appellees.

No. 18555-CA.

Court of Appeal of Louisiana Second Circuit.

April 1, 1987.

Writ Denied June 5, 1987.

Richie & Richie by Byron A. Richie and C. Vernon Richie, Shreveport, for plaintiffs-appellants.

Cook, Yancey, King & Galloway by Charles G. Tutt and Tim Burnham, Shreveport, for defendants-appellees.

Before JASPER E. JONES, NORRIS and LINDSAY, JJ.

JASPER E. JONES, Judge.

This is an appeal of a judgment, rendered pursuant to a jury verdict, rejecting plaintiff's demands in this personal injury suit arising from an automobile/pedestrian accident. The plaintiff-appellant was W. Eugene Allen, provisional curator of Alice Mae Ruple, who was incorrectly denominated as the provisional administrator of the estate of Alice Mae Ruple in the order of appeal signed June 16, 1986. Alice Mae Ruple died on July 20, 1986, and W. Eugene Allen petitioned this court to be substituted as appellant in his capacity as administrator of the succession of Alice Mae Ruple and, for reasons set out in this opinion, we order his substitution as appellant in this capacity. Alice Mae Ruple was survived by no LSA-C.C. art. C.C. 2315 statutory beneficiaries. The decedent's nephew, W. Eugene Allen, in his individual capacity, along with Louis Osburn, another nephew of the decedent, and Alicia Caffey, a niece of the decedent, joined in the motion to be substituted as appellants. We reject these movers' claim to be joined as appellants for reasons hereafter set forth. The defendants are Carolyn Sue Barrow, driver of the automobile; R.P.M. Pizza, Inc. d/b/a Domino's Pizza, the driver's employer and Commercial Union Insurance Company, liability insurer for the driver and the employer covering the negligent operation of an employee's vehicle while used for business purposes.

We amend the judgment to reflect W. Eugene Allen in his capacity as the administrator of the estate of Alice Mae Rupl, as the appellant and, as amended, we affirm the judgment.

FACTS

On February 10, 1984, at approximately 4:40 p.m., Carolyn Sue Burrow was driving her 1975 Ford Pinto westerly in the outermost lane of Stoner Avenue approaching the intersection of Louisiana Avenue in Shreveport, Louisiana. She was driving approximately 30 m.p.h. Stoner Avenue is a four-lane, undivided roadway running generally east and west and Louisiana Avenue is a two-lane, undivided roadway running generally north and south. The intersection has no marked pedestrian crosswalk and is regulated by a traffic signal. Carolyn Sue Burrow had a green light at the intersection and proceeded through it without stopping. At a point approximately 56 1/2' west of the center of the intersection the Pinto struck Alice Mae Ruple after the 82 year old pedestrian stepped out onto the roadway. The auto/pedestrian collision occurred in the outside westbound lane. The exact location of the accident in this lane is in dispute. The victim was severly injured by the collision and required hospitalization and subsequent admission to a nursing home for full-time care. Her nephew, W. Eugene Allen, obtained her interdiction and an appointment as her curator. He initiated this personal injury suit on her behalf. His aunt was unable to participate in the trial of the suit because of her serious disability and incompetence. She did not testify by deposition.

There were five witnesses to the accident whose testimony was produced at trial. Three of these witnesses testified the accident occurred in the outside westbound lane within one to two steps of the north curb when the victim stepped into the path of the westbound Pinto at a time when Carolyn Burrows had no opportunity to avoid the accident. Two of the witnesses testified the victim had traversed the outside lane to the dividing line between the inside and outside westbound lane at the time of impact. From the testimony of these two witnesses there is a possible inference that the Pinto driver should have seen the victim in the roadway in time to avoid the accident.

The jury, in answer to an interrogatory, found Carolyn guilty of no negligence which contributed to the accident and judgment was rendered rejecting plaintiff's demands. The appellant's assignments of error present the following issues for decision:

(1) Did the jury err in determining that the driver of the vehicle was not at fault in causing the accident? and

(2) Did the trial court err in excluding the hearsay testimony of an unidentified bystander as it qualifies as a "present sense impression" and an "excited utterance?"

Pending the appeal the victim died of natural causes unrelated to the accident and the defendants filed a motion to require the appellant to substitute a proper party as plaintiff. This court granted the motion and gave the appellant sixty days to substitute a proper party. The appellant responded with a motion to substitute himself, as administrator of the victim's estates. The motion to substitute was also made by appellant in his capacity as the victim's nephew and by another nephew and another niece, all in the capacity as the victim's legal heirs, together these individuals being the closest surviving relatives of the deceased. The defendants responded asserting that as no member of the beneficiary class of LSA-C.C. art. 2315 was alive when Alice Mae Ruple died then no claims for general damages can be asserted on appeal. The defendants contend the only claims which can be asserted on behalf of the decedent on appeal would be those for obligations incurred on her behalf necessitated by her injuries. Defendants assert that neither the administrator of the decedent's estate nor the decedent's two nephews and niece can assert on appeal survival actions flowing from the decedent. The movers argued in brief, and at oral argument, that:

(1) The adverse judgment is a property right belonging to the deceased's estate and that the administrator of the decedent's succession, should be substituted as the proper party plaintiff with the right to assert LSA-C.C. art. 2315 survivor's benefit;

(2) In the first alternative, the movers assert that LSA-C.C. art. 2315 violates the provisions of LSA-Const. Art. 1, § 3 (1974) as it unconstitutionally discriminates against elderly individuals with physical handicaps and that the beneficiary class of this codal article should be judicially expanded to include the legal heirs of the decedent who should then be substituted as the proper party plaintiffs; and

(3) In the second alternative, the mover, W. Eugene Allen, asserts, as administrator of the decedent's succession, he is the proper party to assert claims for special damages incurred by or on the behalf of the decedent.

Initially we note, as a general proposition, a litigant must plead the unconstitutionality of a statute in the trial court in order to raise the issue on appeal. Hamiter v. Hamiter, 419 So.2d 517 (La.App. 2d Cir.1982). However, we address mover's arguments as the predicate to this constitutional challenge did not arise until after the judgment was rendered and the matter was pending appeal and as no party requests a remand to the trial court in order to introduce additional evidence. LSA-C.C.P. art. 2164; Rule 1-3, Uniform Rules of Louisiana Courts of Appeal. ¹

We first address the arguments # 1 and # 2 in the motion to substitute parties and conclude they are without merit and the movers are not entitled to the relief therein sought.

Argument # 1--The appellant, as administrator of the

succession, should be designated as the proper party

plaintiff as the adverse judgment is a property right which

forms a part of the decedent's estate and includes the

survivor rights flowing from the decedent.

The record reveals the trial court's judgment and the order for appeal were rendered on June 16, 1986, with the return date to this court established as August 1, 1986. At the time of the decedent's death on July 20, 1986, there were no living relatives that qualified as statutory beneficiaries in accordance with LSA-C.C. art. 2315 D. ² The movers argue that the adverse judgment is a property right, which includes survivor rights, and the judgment is a part of the decedent's estate and the administrator should be recognized as the proper party to assert these rights on appeal. In support of this contention movers cite Castelluccio v. Cloverland Dairy Products Co., 165 La. 606, 115 So. 796 (1927) and Foy v. Little, 197 So. 313 (La.App. 2d Cir.1939) for the proposition that favorable trial court judgments are property rights and that the right of action does not abate at the death of the successful litigant even if the matter is pending on appeal. The movers also cite McConnell v. Webb, 226 La. 385, 76 So.2d 405 (1954) for the proposition that a right of action is abated by the death of the unsuccessful litigant while the matter is pending appeal. The movers conclude that the relevent distinction to be made from this jurisprudence is that favorable judgments are property rights that form part of the decedent's estate while adverse judgments do not and they assert such a distinction is not legitimate and not in accord with LSA-C.C.P. art. 1841 which makes no such differentiation. ³

We determine that this argument lacks merit. The Castelluccio and Foy cases cited by the appellant rely directly upon Chivers v. Roger, 50 La.Ann. 57, 23 So. 100 (1898) which held that where a LSA-C.C. art. 2315 beneficiary initiates a tort suit as a result of the victim's injury and death, but the beneficiary dies prior to obtaining a favorable judgment on the merits, the heirs of the beneficiary are not eligible to be substituted and continue the litigation. The necessity of a statutory beneficiary obtaining a favorable judgment prior to death, in order to avoid abatement of this right of action, was legislatively overruled when LSA-C.C. art. 2315 was amended by Acts. 1960, ...