Pennington v. Justiss-Mears Oil Co., JUSTISS-MEARS

• Decision Date: 24 April 1961
• Docket Number: No. 45446,JUSTISS-MEARS,45446
• Citation: 134 So.2d 53,242 La. 1
• Parties: Mrs. Peggy Morgan PENNINGTON, etc., et al. v.OIL COMPANY, Inc. et al.
• Court: Louisiana Supreme Court

Page 53

134 So.2d 53

242 La. 1

Mrs. Peggy Morgan PENNINGTON, etc., et al. v. JUSTISS-MEARS OIL COMPANY, Inc. et al.

No. 45446.

Supreme Court of Louisiana.

April 24, 1961.

On Rehearing Nov. 6, 1961.

Maurice J. Wilson, E. Gordon West, Baton Rouge, Leonard W. Richey, Jena, Blake West, Charles M. Lanier, New Orleans, Breazeale, Sachse & Wilson, Kantrow, Spaht, West & Kleinpeter, Baton Rouge, Gaharan & Richey, Jena, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, for defendants-relators.

Kizer, Heaton, Craig & Cangelosi, Benton & Moseley, Baton Rouge, for plaintiff-appellee-respondent.

Edgar Corey, New Orleans, J. Minos Simon, Lafayette, Jackson & Hess, New Orleans, Camille F. Gravel, Jr., David A. Sheffield, Leonard Fuhrer, James S. Gravel, Alexandria, Bass & Lawes, Joe Bass, Jr., Lake Charles, Parker & Parker, A. B. Parker, Jena, L. E. Hawsey, Jr., Lake Charles, White & May, Baton Rouge, Brumfield & Organ, by Donald Organ, New Orleans, George T. Anderson, Jr., John S. Stephens, Coushatta, E. M. Nichols, J. Clem Drewett, Payton R. Covington, Lake Charles, Sandoz & Sandoz, by William C. Sandoz, Opelousas, Sanders & Long, by A. B. Parker, Jena, Johnson & LeBlanc, New Iberia, Wm. B. Baggett, Lake Charles, Guillory, Guillory & Guillory, by Robert K. Guillory, Eunice, W. T. McCain, Colfax, Fusilier, Pucheu & Soileau, Ville Platte, Victor V. Blackwell, Covington, McKeithen, Mouser and McKinley, by Vinson M. Mouser, Columbia, Campbell, Campbell & Marvin, by John T. Campbell, Minden, Robert J. Mack, Hammond, Joseph A. Sims, Hammond, Gordon M. White, Baton Rouge, amici curiae, on rehearing.

HAMITER, Justice.

On August 16, 1957 C. B. Pennington, Jr. was accidentally killed at the site of oil drilling operations conducted by employees of the Justiss-Mears Oil Company, Inc. Surviving were his wife and their three minor children, two, three and four years of age.

Thereafter the widow instituted the instant suit to recover for herself and for the minors damages arising out of her husband's death, she alleging that it was occasioned by negligent acts committed in the drilling of the well. Named defendants were the mentioned drilling company and its liability insurer, the Hartford Accident and Indemnity Company.

The district judge concluded that the alleged negligent conduct on the part of employees of the Justiss-Mears Oil Company, Inc. solely caused Pennington, Jr.' § death and, accordingly, he awarded damages in amounts totaling $219,743.45 as follows:

To Mrs Pennington individually for:

                 Loss of support and maintenance ... $150,000.00
                 Loss of love an companionship ....... 10,000.00
                 Funeral expenses ..................... 1,243.45
                                                     -----------
                               Total ............... $161,243.45
                To the three minors for loss of
                 love, companionship and guidance .. $  8,000.00
                                                       each or a
                               Total of ............ $ 24,000.00
                To the two, three and four year
                 old children, respectively, for
                 loss of support and maintenance ... $ 12,000.00
                                                       11,500.00
                                                       11,000.00
                                                     -----------
                               Total ............... $ 34,500.00
                

From the judgment the defendants appealed to the Court of Appeal, they complaining mainly that the evidence disclosed no liability on their part and alternatively that the $150,000 awarded to plaintiff individually for loss of support and maintenance was excessive (the other amounts granted for the wife and three children were not questioned). Plaintiff answered the appeal requesting an increase in the awards for both herself and the minors.

Following an affirmance of the district court's judgment (123 So.2d 625) the defendants applied to this court for a writ of certiorari or review, their complaints being the same as those made to the Court of Appeal. Our ruling on the application was: 'Writ granted but limited to a consideration of the question of quantum as it relates to the item of support and maintenance for plaintiff individually. Otherwise, the application is denied.'

Although plaintiff did not apply for a writ she suggests that we should examine the entire judgment and increase all of the awards. However, it has been held consistently that we cannot amend a judgment to the prejudice of one at whose instance a writ has been issued when the opposing litigant has failed to make application seeking such an amendment. Washington v. Holmes & Barnes et al., 200 La. 787, 9 So.2d 35, Osborne v. Mossler Acceptance Company et al., 214 La. 503, 38 So.2d 151, Cassar et ux. v. Mansfield Lumber Company, Inc. et al., 215 La. 533, 41 So.2d 209, Blades v. Southern Farm Bureau Casualty Insurance Company, 237 La. 1, 110 So.2d 116, and McFarland et al. v. Illinois Central Railroad Company, La., 127 So.2d 183. Consequently, presented for our determination herein is whether the award of $150,000 made to plaintiff individually for loss of support and maintenance is excessive and, if it is, the proper amount to be granted to her.

Much discretion is left to the trial judge or jury in making an award of the kind under consideration. Nevertheless, when made it is subject to review by the appellate courts and should be changed when there appears to have been an abuse of the mentioned discretion or if it has been arrived at by the application of legally unsound principles. Brown v. S. A. Bourg and Sons, Inc. et al., 239 La. 473, 118 So.2d 891 and McFarland et al. v. Illinois Central Railroad Company, supra.

The instant case was tried before the judge only. And he, in fixing the challenged award for the wife's support and maintenance, stated: 'Our State courts have established a system of calculation which appeals to me to be reasonable and safe to follow. Marler v. State (La.App.), 78 So.2d 26; Duree v. State (La.App.), 96 So.2d 854; Stephens v. Natchitoches School Board (La.App.), 110 So.2d 156. This method allocates to the widow one-half of the husband's prospective earnings for a period equal to his life expectancy, discounted at 5%. Under the present day retirement plans in many walks of life, it is reasonable to fix that period equal to the remainder of the work span, say 30 years at the age of 65 in this case, rather than for the entire life expectancy. Mr. Pennington's average net income during four and two-thirds years preceding his death was.$21,551.77.

'Taking into consideration that Mrs. Pennington has no community ownership or interest, and that if her husband were living she would have no hope of inheritance, it is my firm conviction that it is conservative to assume that her husband would contribute to her maintenance and support the sum of $10,000.00 per year for 30 years. This sum discounted annually at 5% Gives a total of $153,724.66. I will allow for this item $150,000.00.' (The observation concerning Mrs. Pennington's having no community interest has reference to the fact that plaintiff and decedent had executed a pre-marital agreement in which the former renounced 'the dispositions of the civil law of Louisiana which establish a community of acquets and gains between husband and wife.' However, inasmuch as awards of the instant nature are not based on a widow's vested interest in community property, as will be hereinafter indicated, we deem the circumstance of the pre-marital agreement unimportant.)

In approving the district court's award the Court of Appeal observed, among other things, that '* * * we cannot say that the trial court erred or abused its discretion in allowing the widow a recovery for the loss of her reasonably to be expected support based upon an annual valuation of support at $10,000 per year over 30 years, discounted to present cash value. * * *'

But the method or system of using almost entirely such mathematical formula in calculating the support element of damages, as well as the Court of Appeal decisions in which it was developed (they are relied on by the district court, Court of Appeal and plaintiff herein), was specifically denounced by us in McFarland et al. v. Illinois Central Railroad Company, supra, wherein we said: '* * * This court on several occasions has expressed disapproval respecting the use of such a formula in awarding damages * * *.' (127 So.2d 187)

One of the decisions on which the last quoted observation was based was Brown v. S. A. Bourg and Sons, Inc. et al., supra. Therein, the widow did not rely on a mere gratuitous assumption allocating one-half of her husband's annual income to her, but she attempted to show approximately what he had actually contributed for her support prior to his death. After concluding that the annual contribution had been about $500, the district judge proceeded to project that figure into the future based on the husband's life expectancy of twenty years and arrived at an award for loss of support in the amount of $10,000. But on the appeal, with respect to the method so used, we stated: 'The district judge was in error in computing the loss of support by multiplying the average annual contribution of the decedent to the support of his wife by the number of years of the life expectancy of the decedent. He made no allowance for discount on the advanced payments. There are likewise other factors to be taken into consideration. * * *

'The monetary damages resulting from loss of support cannot be calculated with mathematical exactitude. They are speculative in nature and as in the case of damages for loss of love and companionship, mental anguish and other damages of that character, much discretion must be left to the judge or jury.

'Considering all of the circumstances of this case, we believe an allowance of $6,000 for loss of support is ample. * * *' (Italics ours).

The Bourg and McFarland cases (as well as the authorities cited therein) make it clear that in fixing a loss of support award for the widow the court...