Clairain v. Western Union Telegraph Company

• Court: Louisiana Supreme Court
• Writing for the Court: TODD, J.
• Citation: Clairain v. Western Union Telegraph Company, 3 So. 625, 40 La.Ann. 178 (La. 1888)
• Decision Date: 01 February 1888
• Docket Number: 10,053
• Parties: MRS. L. E. CLAIRAIN, INDIVIDUALLY AND AS TUTRIX, v. WESTERN UNION TELEGRAPH COMPANY

3 So. 625

40 La.Ann. 178

MRS. L. E. CLAIRAIN, INDIVIDUALLY AND AS TUTRIX, v. WESTERN UNION TELEGRAPH COMPANY

No. 10,053

Supreme Court of Louisiana

February 1, 1888

APPEAL from the Civil District Court for the Parish of Orleans Voorhies, J.

W. S Benedict and W. E. Murphy, for Plaintiff and Appellee.

Bayne Denegre & Bayne, for Defendant and Appellant.

OPINION

TODD J.

Louis E. Clairain, in the employ of the defendant company, while engaged in putting up telegraph wires on Carondelet street, in this city, fell from a telegraph pole and was killed.

This suit is brought by the widow of the deceased in her own right, and as natural tutrix of her minor children, issue of her marriage with deceased, to recover damages on account of his death -- damages resulting from the sufferings of the deceased, and damages caused directly to the widow and children by the loss of the husband and father.

The cause and manner of the death is set forth substantially as follows:

That Clairain was employed by the company as a lineman in putting up and tying wires on their telegraph poles. That, whilst he was so engaged, some forty feet from the ground, and on a telegraph pole, it became necessary to stretch a wire on the outer end of a cross arm of the pole, their being five wires already strung on the pole, three on the inner and two on the outer side.

That in order to perform his work, it was necessary for him, by the aid of a steel spur or iron point, attached to one of his legs, to force the same into the telegraph pole as a support for his body, throw his other leg free of any iron support around the pole, and lean outward in a diagonal position from the pole to the outer wire of the arm attached to the pole, and there secure the telegraph wire with iron nippers or pincers, by a wire around the glass cup placed over the pin inserted in the cross-arm.

Whilst in this position, the wire being hauled taut many hundred feet ahead of him, by means of a reel and apparatus provided for that purpose by the company, the wire broke near the cross-arm at which he was; the cross-arm itself broke where it was fastened to a telegraph pole, and by reason of his then necessary position, he could not recover his center of gravity when the break took place, and was precipitated headlong to the stones beneath him. He was picked up and, after suffering intense agonies, died within a week, leaving a widow and three minor children as his heirs, deprived of his comfort, his support, his life.

It is specially charged that the wire furnished for the work which he was performing was second-hand wire, full of kinks, that is, where it had been twisted it had lost its strength, and that the cross-arm of the telegraph pole was of light material, too thin, improperly bored, and of such brittle nature as to be entirely unfit for the purpose for which it was used.

That Clairain has been for six years engaged in this business, both upon telegraph and telephone poles. That he was about thirty years of age, strong, active, and giving a regular support to his family.

The defendants excepted to the petition as follows:

1. That there was an improper joinder of parties upon distinct causes of action, and that the widow and children of the deceased could not in the same suit claim the damages which each have separately and distinctly sustained.

2. That the petition not specifying the quantum of damages suffered by the widow and the quantum of damages suffered by the children, and not giving any details or specifications of these damages, was too vague and indefinite to admit of proper answer and defense.

3. That in so far as the widow claimed that the cause of action of the deceased survived in her, her petition disclosed no cause of action

The first and third grounds of exception were overruled, and the second ground was maintained, with leave to amend.

Thereupon plaintiffs filed an amended petition, which, "reiterating the allegations of the original petition, averred:

"1st. That the damages sustained by the deceased, as hereinafter averred, survived in her minor children, of whom petitioner is natural tutrix.

"2d. That she individually had sustained $ 5000 damages.

"3d. That her children had sustained $ 5000 damages."

Defendant excepted that the supplemental petition, in so far as it alleged that the cause of the deceased survived in her minor children, was inconsistent with the original petition, and changed its substance.

This exception was overruled and the amendment allowed.

We think the ruling of the judge a quo on these exceptions was proper, considering that all the damages claimed resulted from one cause, and all parties in interest were before the court, and that the widow was suing both in her individual and representative capacities, and since a judgment final and conclusive as to all the parties could be...