Davis v. State Farm Mut. Ins. Co.
| Decision Date | 04 March 1968 |
| Docket Number | No. 2923,2923 |
| Citation | 208 So.2d 412 |
| Parties | Eugene DAVIS, Provisional Administrator, Succession of Harold V. Massulla, also known as Harold V. Massullo v. STATE FARM MUTUAL INSURANCE COMPANY and Stephen F. Wildey, III. |
| Court | Court of Appeal of Louisiana — District of US |
Richard J. McGinity, Jr., of Bridgeman & McGinity, New Orleans, for Eugene Davis, provisional admr., Succession of Harold V. Massulla, also known as Harold V. Massullo, plaintiff-appellant.
C. Gordon Johnson, Jr., Porteous & Johnson, New Orleans, for State Farm Mutual Automobile Ins. Co. and Stephen F. Wildey, III, defendants-appellees.
Before REGAN, SAMUEL and CHASEZ, JJ.
Plaintiff, Eugene Davis, alleging he was the duly qualified provisional administrator of the Succession of Harold V. Massulla, also known as Harold V. Massullo, filed suit on behalf of decedent's estate to recover damages for the wrongful death of Massulla, who was struck by an automobile as he walked on the shoulder of Louisiana Highway 45. The accident occurred February 19, 1966 and suit was filed February 16, 1967.
Defendants, Stephen F. Wildey, III, the automobile driver, and his insurer State Farm Mutual Insurance Company pleaded the exceptions of no right or cause of action, which the trial court maintained on May 23, 1967. From that judgment plaintiff appealed.
For the purposes of deciding exceptions, the allegations contained in the petition are deemed true. See DiFatta v. Williams, La.App., 176 So.2d 185.
Article V of plaintiff's petition asserts the impact from the vehicle caused the Instant death of Harold V. Massulla. On appeal plaintiff has attempted to recant this allegation with the assertion that the decedent lingered several hours and endured severe pain during that interval. Not only is there no evidence properly before us to support this argument, but the pleadings have never amended to change the nature of the relief sought.
Under Civil Code Article 2315 a wrongful death action belongs only to the parties designated in the statute, i.e., surviving spouse and child or children, or the decedent's father and/or mother, in the event decedent left no wife or children, or sisters and brothers, in the event decedent left neither wife and children nor parents. In Succession of Roux v. Guidry, La.App., 182 So.2d 109 (writs refused), this court specifically held that a provisional administrator could not recover for the...
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