Robertson v. Town of Jennings

• Decision Date: 08 May 1911
• Docket Number: 18,695
• Court: Louisiana Supreme Court
• Parties: ROBERTSON et ux. v. TOWN OF JENNINGS

55 So. 375

128 La. 795

ROBERTSON et ux. v. TOWN OF JENNINGS

No. 18,695

Supreme Court of Louisiana

May 8, 1911

Appeal from Fifteenth Judicial District Court, Parish of Calcasieu Winston Overton, Judge.

Action by Lee Robertson and wife against the Town of Jennings. Judgment for plaintiff Lee Robertson, and defendant appeals. Affirmed.

Heinen & Modisette, for appellant.

Goudeau & Barbe, for appellee.

OPINION

MONROE J.

Statement of the Case.

Plaintiffs sue for damages resulting to them from injuries to, and the death of, their infant child, which was thrown from the arms of its mother, who, whilst carrying it, sustained a fall by reason of the defective condition of one of defendant's sidewalks.

Defendant by way of answer, denied generally the allegations of the petition, and alleged that "plaintiff is, and was, guilty of contributory negligence," and that "plaintiff is estopped by his own admissions." It then filed an amended answer, alleging that the paragraph in the original answer to the effect that "plaintiff is, and was, guilty of contributory negligence," had been "inadvertently thrown in," and praying that there be substituted in its place the following:

"And, further reserving all rights, defendant shows that said injury or injuries to plaintiffs and their said child, if any, which is specially denied, resulted from, and were caused by, the negligence and carelessness of plaintiffs, and without any fault or negligence on the part of defendant or its agents or officers."

It then filed an exception to the right of action of Lee Robertson suing in his own behalf, based apparently upon the theory that the only right of action which arose out of the accident was that in favor of the child, to which the parents may have succeeded. And, finally, it excepted that the petition discloses no right or cause of action as to Mrs. Robertson, alleging, however,

"in the alternative, that should the court hold that a cause of action in favor of the wife * * * is disclosed, * * * which defendant specially denies, * * * said petition discloses no cause or right of action in favor of the husband, * * * and that said husband, as head and master of the community, should be ordered and compelled to elect * * * in whose behoof he is here suing -- whether for his own personal account or in the capacity to authorize and assist his said wife."

Plaintiffs moved to strike out the amended answer and the motion was overruled, as were defendant's exceptions (so far as appears from the record), after which the case was tried before the court and a jury, with the result that there was a verdict in favor of "the plaintiff Lee Robertson" in the sum of $ 2,632, "damages for mental suffering and agonies at the death of their child, * * * and $ 18 for medical and funeral expenses, with 5 per cent. interest from date of judgment until paid," which verdict and judgment were approved by, and made the judgment of, the court.

Defendant has appealed, and plaintiff Lee Robertson first moved to dismiss the appeal on the grounds that the application therefor was made by motion, when it should have been made by petition, and that defendant has failed to give any appeal bond. He then answered the appeal, praying that the amount of the award be increased to $ 6,000. The facts established by the evidence are as follows:

Plaintiffs are a young married couple who were living about 15 miles from Jennings, and the infant in question was their only child, and at the time of the accident was about two months old. The husband earned his livelihood by farming and by hauling with his teams. On April 4, 1909, he hauled a wagon load of household effects from his neighborhood to Jennings for Mrs. Albert Clifton, and his wife and baby and Mrs. Clifton and her baby and servant rode in the wagon. Plaintiffs spent the night at the home of the Cliftons, and the next morning, about 8 o'clock, started to walk to the house of Mr. Conklin, the wife carrying the baby in her arms, and the husband carrying a suit case. They took the course that naturally suggested itself, along the west side of Lake Arthur avenue, going in a northerly direction, with a view of reaching West Division street, on which Mr. Conklin lives. Upon the east side of the avenue, there was no sidewalk, and the ground was so covered with grass and weeds as to be practically impassable. On the west side there was a sidewalk consisting of three rows of wooden stringers, laid on the ground, parallel with the line of the street, across which were planks, probably 10 or 12 inches wide, and say 4 feet long, which had originally been nailed to the stringers. The stringers and planks had however become more or less rotten, and some of the planks were missing, whilst others would tilt up when trodden upon, and others, again, would break. Mrs. Robertson came to a place where a plank was missing, and stepped over it, upon a plank which, being rotten, broke beneath her weight; and she fell, dropping her baby to the ground. She arose and picked the baby up, and the party proceeded to Mr. Conklin's, whence a physician (Dr. Frye) was immediately sent for, and he says that he examined the child; and further, as follows:

"I found a swelling over the right parietal bone. * * * The child was slightly fretful, but quieted when put to the breast. The child had no fever; pulse not accelerated. * * * The accident, I was informed, had occurred about 30 minutes previous to my examination. I told Mr. Robertson * * * that the child did not appear to be seriously injured, but cautioned him that a serious aspect might occur at any time; that, while the child did not appear to be seriously injured, it was impossible from an examination at that time to say that something would not come up later. He asked me if it would be safe to take the child away on the next train. I told him that it would probably be safe, but could not assure him that it was. He stated to me that they were intending to leave on the next train, but would defer going until the noon train, unless I would assure him that there was no danger in going sooner. I cautioned him that, if anything further developed, to let me know at once, but heard nothing more, until several weeks later he * * * told me that the child had died one week after I had seen the patient."

The doctor appears to have misunderstood Robertson as to the manner in which the latter intended to go home, being, very likely, ignorant of the fact that he had his wagon. Robertson says:

"He just made a mistake in the way that I was to get home. That is all. I told him I wanted to go back that evening. I told him I wanted to go in a couple of hours, and he said that I had better wait until noon. * * * He told me that, if the child didn't get along well -- if I saw any indication of its being worse -- to come and let him know about it; otherwise, that it would be all right to go home."

And he and his wife carried the baby home in the wagon, and, although it (the baby) did not appear to be quite so well as it had been there seemed to be nothing serious in its condition until April 12th, when, there appearing some unfavorable symptoms, plaintiffs sent for another physician (Dr. Miller, of Lake Arthur) who certifies, in part, as follows:

"Upon a personal examination of the child, I found a tumor on the right side of the head. * * * I told the parents that the case was a hopeless case, and that it would die in all probability that evening. Nothing was done for the child by me, with the exception of giving two or three bromide powders, to quiet convulsions, should the child develop them. I told the parents * * * that their child was suffering from a tumor caused by a fracture of the bone or laceration of the membrane of the brain, as I could not tell exactly which, on account of the tumor being situated about the sutures of the skull. My conclusions were that the bones were apart, allowing the fluid of the brain to escape beneath the skin and its membrane, thereby causing the tumor, called pseudo hydro meningocele, or a tumor of the brain, from a rupture of the skull. The tumor was an acquired tumor, and not a congenital tumor, or one which came with birth."

In that connection, another physician, Dr. Arceneaux, certifies that he attended upon the occasion of the birth of the child, and that it was a normal baby, with a perfectly normal head; and from other witnesses it appears that up to the time of the accident the child had continued to all appearances to be normal and healthy. Still another physician, Dr. Watkins (called by defendant as an expert), testifies that a blow upon the head of an infant might produce meningocele, or might cause such a tumor to increase in size and activity that, where a child receives an injury, such as that described, and goes seven or eight days, or any number of days, without surgical attention, every day increases the chances of its dying, or becoming a cripple or paralytic; that it would, however, be impossible to tell immediately whether the results would be serious or not; and that a surgeon would be likely in 12 or 15, or, at most, 24, hours, to know whether an operation would be advisable. The doctor also testifies that congenital tumors are very rare, and that a case would be an exception. The evidence abundantly shows that the sidewalk upon which Mrs. Robertson fell had been entirely neglected by the municipal authorities, and had been left to itself or to the particular property owners in front of whose residence it passed, and that it was in bad condition. Mrs. Robertson had never walked on it before. Her husband had done so on a few occasions, but how long before the accident does not appear. He says that he had observed that it was in bad condition,...