Butler v. Fidelity & Cas. Co. of New York

• Decision Date: 04 March 1968
• Docket Number: No. 7253,7253
• Citation: 207 So.2d 805
• Court: Court of Appeal of Louisiana — District of US
• Parties: Gertrude BUTLER et al. v. FIDELITY & CASUALTY COMPANY OF NEW YORK et al.

Page 805

207 So.2d 805

Gertrude BUTLER et al. v. FIDELITY & CASUALTY COMPANY OF NEW YORK et al.

No. 7253.

Court of Appeal of Louisiana, First Circuit.

March 4, 1968.

Arthur Cobb, Baton Rouge, for appellants.

Watson, Blanche, Wilson, Posner & Thibaut, Baton Rouge, for appellees.

Before LOTTINGER, ELLIS and CUTRER, JJ.

ELLIS, Judge.

This suit arises out of an automobile accident which happened in East Baton Rouge Parish on August 9, 1965. The suit alleges that the accident happened between a truck operated by defendant, and an automobile in which plaintiff Gertrude Butler was a passenger, and that the accident was due to the negligence of defendant. Articles 4, 5, and 6 of the petition read as follows:

'4. That Gertrude Butler was approximately 5 months pregnant at the time of said accident and that said accident aggravated her condition to such an extent that her baby, Dennis Ray Butler, was born 2 months prematurely on or about 4 October 1965.

'5. That because she had no knowledge that her baby would be born prematurely she was unable to have it delivered by a physician and it was necessary that the hospital nurses deliver her baby, and that on information and belief, said procedure caused injury to her body, stomach and internal organs.

'6. That the accident caused Gertrude Butler and Lesage Butler to worry over the well-being of their unborn child and on information and belief they believe it caused injury to their child.'

The suit was filed on August 24, 1966, and defendant filed an exception of prescription, which was maintained by the trial court. From the judgment of dismissal, plaintiff has taken this devolutive appeal.

Articles 3536 and 3537 of the Civil Code provide that actions resulting from offenses or quasi offenses are prescribed by one year, and the prescription runs from the date on which the damage was sustained. This Court, in the recent case of Lucas v. Commercial Union Insurance Company, 198 So.2d 560 (La.App. 1 Cir. 1967), held that when there was an actual delay between the commission of the tort and the occurrence of the damage resulting therefrom, prescription does not begin to run until the latter date. We find that the holding in that case is directly applicable to the instant case. The injuries alleged by plaintiffs to Mrs. Butler and to their minor child could not have happened until the time of delivery. Under those circumstances, the injury was 'sustained' on the latter date, October 4, 1965.

Defendant points out that plaintiffs are also seeking damages for worry over the condition of their unborn child, and that this claim arose immediately with the occurrence of the accident. He contends that since plaintiffs were aware of a claim...