Valence v. Louisiana Power & Light Co.

Citation50 So.2d 847
Decision Date26 February 1951
Docket NumberNo. 19624,19624
PartiesVALENCE et al. v. LOUISIANA POWER & LIGHT CO. et al.
CourtCourt of Appeal of Louisiana (US)

Aubrey C. Evans, New Orleans, for plaintiffs and appellees.

Monroe & Lemann, J. Raburn Monroe, Walter J. Suthon, J. and Jack A. Bornemann, all of New Orleans, for Louisiana Power & Light Co., defendant and appellant.

Frank T. Doyle and Robert C. Hughes, New Orleans, for Hartford Accident & Indemnity Co., defendant and appellant.

JANVIER, Judge.

Mrs. Mozella Theriot Valence, wife of Anthony Valence, was a passenger in a motor bus of Louisiana Power and Light Company on February 28th, 1949, when it was driven off the hightway into a ditch alongside. At the time Mrs. Valence was from two to four months pregnant. On August 12th, 1949, about five and one-half months after the accident, he child with which she had been pregnant was born dead.

Mr. and Mrs. Valence brought this suit for damages against Louisiana Power and Light Company and Hartford Accident and Indemnity Company, its liability insurance carrier, alleging that the accident resulted from negligence of the operator of the bus and that many injuries were sustained by Mrs. Valence, and particularly that the death of the unborn child, prior to its birth, was the result of those injuries, and therefore was a result of the accident.

Mr. Valence prayed for solidary judgment against the two defendants in the sum of $15,000. He claimed $5,000 as representing the amount spent for medical and hospital bills and the loss of earnings of Mrs. Valence for a period of twenty months, and also as the cost of employing someone to 'attend' to Mrs. Valence, and $10,000 as a recompense for the 'mental anguish, disappointment and grief caused by the present and future loss of companionship of the expected child.'

Mrs. Valence prayed for solidary judgment against the two defendants for $30,000, $15,000 of which she claimed for 'past, present and future pain and suffering', and $15,000 for the 'mental anguish, disappointment and grief caused by the present and future loss of companionship of the expected child.'

The defendants denied that the accident resulted from negligence of the bus driver and they denied that Mrs. Valence received any injuries at all, and they especially alleged that 'she received no injuries which in any way affected the birth of her child.'

There was solidary judgment against the two defendants in favor of Mrs. Valence for $15,000 and in favor of Mr. Valence for $12,500. Both defendants have appealed devolutively and suspensively.

In oral argument counsel for defendants have admitted that though they have not conceded that there is liability, they feel that the principal issues are whether Mrs. Valence was seriously injury and whether the loss of the child was the result of the accident, and they further contend that, regardless of the cause of the loss of the child, as a matter of law there can be no recovery for such loss.

The record leaves no room for doubt that the accident, such as it was, resulted from the negligence of the driver of the bus. A passenger had boarded it only a very short time before the accident occurred, and the operator had turned to give change to this passenger and had thus diverted his attention from the operation of the bus, and had allowed it to swerve to its side so that its wheels went into a ditch alongside the highway.

The record shows that instead of permitting the passengers to alight, the driver attempted to extricate the bus by driving it first backward and then forward several times and that only then, after hearing protests from some of the passengers, did he allow them to alight.

We conclude that for such injuries and losses as were sustained the defendants are liable.

The major item of loss claimed is based on the fact that the expected child was born dead, and since there is presented by the defendants the contention that for such an item of loss or damage there can be no recovery as a matter of law, we deem it proper to discuss that legal question first because if there can be no such recovery, regardless of the cause of the loss, then there is no necessity to consider or discuss the extensive medical testimony touching upon the question of whether the stillbirth of the child was the result of the accident.

Counsel for defendants direct our attention to Article 28 of our Civil Code which provides that: 'Children born dead are considered as if they had never been born or conceived.'

They say that since a child born dead is considered as never having been conceived, it must be concluded that nothing has been lost since there can be no loss of anything that has never existed.

We note that in Youman v. McConnell & McConnell, Inc., 7 La.App. 315, the Court of Appeal for the Second Circuit in a simlar situation said that even if it could be conceded that the 'stillbirth of the child' had been caused by the accident 'we do not think the mother could have a right of action for the loss or death of the child.'

Cooper v. Blanck, La.App., 39 So.2d 352, 353 affords us little assistance in the solution of this problem. It is true that there the child received injuries 'en ventre sa mere' and we said: '* * * if the child be killed at this period, before its birth, we see no reason why its parents cannot maintain an action for the death of their child.' The truth of the matter was, however, that there the child lived several days after its birth and the question was whether the parents could inherit from the child, which had been born alive, the right to recover for injuries sustained prior to its birth. Obviously in the above quoted statement we indulged in obiter dicta.

We note an interesting discussion on the subject of 'Tort Liability for Prenatal Injury' in 24 T.L.R. at page 435, and particularly at pages 439 to 441.

The author says that the general rule is that: 'There can be no recovery for the loss of the society and prospective earnings of the child.' * * *

We cannot be persuaded that, under no circumstances, should there be awarded damages to the parents of the unborn child if the foetus, while in its mother's womb, has been so injured that it cannot be born alive. We are certain that the redactors of our code had no such purpose in mind in enacting Article 28.

There can be no doubt at all that there could be a recovery for a result of an accident which might cause sterility, or which might otherwise prevent parents from having children. If, as the result of actionable negligence, a husband or a wife should be so injured that either, in the future could not expect to produce children, surely this would be taken into consideration as an item of damage. It necessarily follows, we think, that when parents are actually expecting the arrival of a child, and they are deprived of the fruition of that great expection by the actionable negligence of someone else, they may recover from the tortfeasor as an item of damage for that particular loss.

In the article from which we have quoted the author says that: * * * 'Although mental anguish based specifically upon the loss or death of the child is not recoverable, recovery has been allowed for the mother's mental anguish if the child is born malformed.' * * * If the mother may recover for the mental anguish caused by the fact that the child has been born malformed, it is surely illogical to hold that, under the same circumstances, the mother cannot recover where, as the result of negligence, the child is prevented from coming into existence at all.

In the same article the author states that, where there is an injury to an expectant mother and a space of time elapses between the injury and the expected birth, 'there may be recovery for the fear that harm may have resulted to the child.' If this is true, surely it should follow that if that fear is realized and the child is stillborn, there should be allowed recovery for the stillbirth of the child.

As a matter of fact, the author of the article concludes his most interesting discussion with a statement that, in all such cases in which it is contended that some accident has caused prematal injuries, '* * * the evidence to prove the causal relationship should be subjected to the strictest examination.'

And that is our conclusion here--that as a matter of law, there may be recovery by the parents where there is actionable negligence which causes such injury to a viable foetus as to prevent its being born alive, but that there must be strict proof that the actionable negligence was the cause of the unfortunate occurrence.

We therefore next consider the question of whether there is sufficient proof as to the cause of the stillbirth of the child to permit that item of the claim to be considered in arriving at the awards to be made to the parents. There are, of course, other items of damage which we shall later discuss.

We are well convinced that no great shock resulted from the fact that the bus was driven into the ditch, nor from the fact that the driver attempted to extricate it before allowing the passengers to alight.

Although, in certain parts of the record, it is contended that Mrs. Valence was thrown to the floor of the bus, it is very clear that this did not occur; that she caught herself on the seat ahead of her and received, as a matter of fact, only a slight jolt.

She did not feel well after the occurrence being between two and four months pregnant, and finding that she was suffering from a slight discharge from the uterus, she called her physician, Dr. LaRocca. He had examined her only three days before the accident and had found her in splendid condition except that she was very much overweight. Learning of this discharge from the uterus and having been told of the accident, Dr. LaRocca sent her to the hospital on March 4, which was several days after the accident, and required her to remain there until March 14, on which day he discharged her...

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