Polk v. Trinity Universal Ins. Co. of Dallas, Tex.

• Citation: 115 So.2d 399
• Decision Date: 30 October 1959
• Docket Number: No. 9061,9061
• Parties: Samuel D. POLK, Individually and as Administrator for the Estate of Lila Beth Polk, Plaintiff-Appellee, v. TRINITY UNIVERSAL INSURANCE COMPANY OF DALLAS, TEXAS, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 399

115 So.2d 399

Samuel D. POLK, Individually and as Administrator for the Estate of Lila Beth Polk, Plaintiff-Appellee, v. TRINITY UNIVERSAL INSURANCE COMPANY OF DALLAS, TEXAS Defendant-Appellant.

No. 9061.

Court of Appeal of Louisiana, Second Circuit.

Oct. 30, 1959.

Stafford & Pitts, Alexandria, for appellant.

Watson, Williams & Brittain, Natchitoches, for appellee.

HARDY, Judge.

This is a suit by plaintiff, individually and as administrator of the estate of his minor daughter, for damages resulting from accidental injury to the latter. The named defendant is the liability insurer of Ryan Horton, father of the minor whose negligence allegedly caused the accident for which damages are here sought. The case was tried before a jury, which returned a verdict in favor of plaintiff, individually, in the sum of $4,758.35, and in favor of plaintiff, for the use and benefit of his minor child, in the sum of $4,000.00. From judgment responsive to said verdict, defendant has appealed and plaintiff has answered the appeal, praying for an increase in the amount of the judgment.

The accident occurred on April 17, 1958, in the backyard of the residence of Dr. Burton Dupuy, Jr., in the City of Natchitoches. Plaintiff's daughter, four-year old Lila Beth Polk, was playing with two other little girls of about the same age. Also present in the yard were two young boys, Burton Dupuy, who was about nine and one-half years of age at the time, and David Horton, about ten and one-half years of age. The boys were playing ball, using a baseball and bat, and were engaged in a game called 'flys and rollers.' One of the boys would bat the ball to the other and, after a few times, the two would exchange places as batter and fielder.

There is little real dispute as to the manner in which the accident happened, for there is no substantial difference in the testimony of the two young boys, Burton Dupuy and David Horton, the only witnesses who testified as to the occurrence of the accident.

Young Horton testified that shortly before the accident he threw the ball into some bushes in the yard; that the little girls came up as the boys were looking for the ball and were told to stay of the way or they might get hit. Immediately after this incident David Horton, who was batting the ball, made several unsuccessful swings, and on his last attempt the ball rolled a little distance in front of him, whereupon he dropped his bat, walked over, picked up the ball, turned around, walked back to his position, picked up the bat, threw the ball into the air, swung with the bat, missed the ball, and as the bat swung around it hit little Lila Beth Polk squarely in the face, crushing her nose and inflicting the serious and painful injuries which are the basis for the damages sought to be recovered.

The principal issue presented for determination relates to the purely factual question as to whether David Horton, minor son of defendant's assured, under the circumstances was guilty of negligence or carelessness which was a cause of the accident.

It is strenuously urged by counsel for defendant that David Horton was unaware of the fact that little Lila Beth Polk was near enough to be endangered by his actions in swinging the baseball bat. In support of this contention counsel argues that the three little girls were playing together some thirty-five feet away from the point where David was batting the ball, and that he had no opportunity to observe the fact that the little Polk girl had changed her position and was near the place where he was swinging the bat. This argument would be considerably more persuasive if it were not for the fact that David, in the course of the actions above described, had every opportunity to note the fact that Lila Beth Polk was moving into a position of danger. Young Dupuy testified that the danger was apparent to him and that he called a warning to David just as the latter began the unfortunate swing which struck the little girl.

We think, first, that both of the boys were not only aware of the possibilities of injury to the little girls, but had fully evidenced their understanding of the danger by warning the small children a very short time before the occurrence of the accident; second, that David Horton was guilty of carelessness and negligence, knowing of the presence of the small children, whose actions could not be anticipated, in not taking the precaution of noting their whereabouts before swinging the bat; and, third, David Horton could and should have seen the approach of little Lila Beth Polk at the time he...