Gaspard v. Grain Dealers Mut. Ins. Co.

• Decision Date: 19 June 1961
• Docket Number: No. 298,298
• Citation: 131 So.2d 831
• Parties: Andrus GASPARD, Individually and as Administrator of the Estate of His Minor Son, Ronnie Gaspard, Plaintiff and Appellant, v. GRAIN DEALERS MUTUAL INSURANCE COMPANY et al., Defendant and Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 831

131 So.2d 831

Andrus GASPARD, Individually and as Administrator of the Estate of His Minor Son, Ronnie Gaspard, Plaintiff and Appellant, v. GRAIN DEALERS MUTUAL INSURANCE COMPANY et al., Defendant and Appellee.

No. 298.

Court of Appeal of Louisiana, Third Circuit.

June 19, 1961.

Rehearing Denied July 12, 1961.

Edwards & Edwards, by Nolan J. Edwards, Crowley, for plaintiff-appellant.

Mouton, Champagne & Colomb, by George J. Champagne, Jr., Lafayette, for defendants-appellees.

Before HOOD, FRUGE and CULPEPPER, JJ.

CULPEPPER, Judge.

This is a suit brought by Andrus Gaspard, individually and as administrator of the estate of his minor son, Ronnie Gaspard, for damages for personal injuries received when the said minor was struck on the head by a baseball bat which slipped from the hands of Ronald Viator, minor son of the defendant, Alfred Viator, while the two minors were participating in a game of baseball during the recess period of a summer catechism school. Defendant, Grain Dealers Mutual Insurance Company, is the insurer of Mr. Viator under a comprehensive liability policy. The defendants deny any negligence on the part of Ronald Viator and specially plead assumption of the risk as a bar to plaintiff's recovery. In the alternative, defendants allege contributory negligence on the part of Ronnie Gaspard. From an adverse judgment in the lower court plaintiff has taken this appeal.

The facts of the accident are set forth in the lower court's written opinion as follows:

'The game being played was the game of 'workup,' wherein some of the players occupy infield and outfield positions while others bat, and upon one of the batters being put out, the player responsible for the out comes in for his turn at bat, exchanging places. Ronald Viator was the batter; it was a hot summer day; his hands were grimy with dirt and wet with perspiration on this hot summer morning, and he had selected a bat furnished by the church which was heavier than the other two bats available and which, through years of use, had become worn at the grip end so that the knob at the end of the bat was chipped and reduced in size from its original proportions. Father Jabuert, who was on the playing field at the time, and a spectator at this game testified that this bat was the favorite of the boys because it is heavier and they could obtain better hits. Ronnie Gaspard was near the players' bench situated to the left and a little bit behind the batter, some twelve or fifteen feet distant in the act of stooping to select his own bat, as he was next in line at the plate. Viator swung at a pitched ball, missed it, and the bat slipped from his hands, flying through the air and striking young Gaspard on the head. * * *

'Both of these boys were voluntary participants in this game of baseball. It was carried out under the supervision of Father Jabuert and a group of young seminarians who took charge of the boys and girls during recess. It was a lawful, supervised athletic contest. Neither of the boys was required to play in the game and both of them testified that they had played baseball considerably before the incident occurred, and both have played in the Little Leagues in Crowley since the accident occurred. Ronnie Gaspard, the injured player, played for Miller's Little League, playing the position of pitcher and had a successful season despite his injury. Both boys are alert intelligent youngsters and both seemed to fully understand the dangers inherent in the great American pastime of baseball of being struck by flying balls or bats, in spite of which knowledge they seemed to be ardent exponents of the game. Gaspard testified that he had frequently used the bat which Viator used that morning and that he knew that bats sometimes fly from the hands of batters despite every effort to prevent this. He stated that he had had the same experience while playing the game. Ronald Viator testified that he was trying to grip this bat as hard as he could; that he knew his hands were sweaty, and that he wiped them on his bluejeans, as is customary among boys of that age; that despite these precautions when he swung at the ball and missed it, the bat slipped out of his hands.'

The first issue is the negligence of Ronald Viator who was twelve years old at the time of the accident. Plaintiff relies principally on the case of Polk v. Trinity Universal Insurance Company, La.App. 2 Cir., 1959, 115 So.2d 399 in which two boys, approximately ten years of age, were playing 'flys and rollers' in the backyard of a home where three little four year old girls were also playing. As one of the boys was swinging the bat, plaintiff's little girl moved toward him and was struck in the face. In finding the boy negligent, the court held that he was aware of the presence of the little girls and of the possibility of injury to them and should have taken the precaution of noting their whereabouts before swinging the bat, because he should have known that the actions of four year olds could not be anticipated.

In our opinion the trial judge was correct in finding the Polk case has no application here. Although plaintiff urges that the Polk case indicates a baseball batter is negligent in not watching out for other children in the course of batting, the facts of the present case indicate that the Viator boy was aware of the presence of young Gaspard and the other boys approximately fifteen feet to his left rear, but whether Viator was or was not aware of the presence of Gaspard, this had no causal relation to the accident. The accident here was caused by the bat slipping from Viator's hands, and not by his being unmindful of the presence of Gaspard. Other obvious reasons why the Polk case is inapplicable here are that the Po...