Whittington v. Hopfensitz

• Decision Date: 15 October 1975
• Docket Number: No. 10375,10375
• Citation: 321 So.2d 836
• Parties: Sam W. WHITTINGTON and Royce H. Whittington v. Albert A. HOPFENSITZ and Milton Palliser.
• Court: Court of Appeal of Louisiana — District of US

Page 836

321 So.2d 836

Sam W. WHITTINGTON and Royce H. Whittington v. Albert A. HOPFENSITZ and Milton Palliser.

No. 10375.

Court of Appeal of Louisiana, First Circuit.

Oct. 15, 1975.

Rehearings Denied Nov. 24, 1975.

Clint L. Pierson, Jr., Covington, for plaintiffs-appellants.

Albert H. Hannemann, Jr., New Orleans, for defendant and third party plaintiff, Albert A. Hopfensitz appellee-appellant.

Richard P. Massony, Covington, for defendant-appellee Milton Palliser.

Before SARTAIN, ELLIS and BARNETTE, JJ.

BARNETTE, Judge.

This is a suit arising out of a tort claim for hospital, doctor and drug expenses, pain and suffering and mental anguish that resulted when Mrs. Lois Sandifer Whittington allegedly stepped on a roofing tack that pierced her shoe and caused a puncture would with serious after effects. Mrs. Whittington lived with her husband, Sam W. Whittington, in a house in Covington, Louisiana, which they were renting from one of the defendants, Albert A. Hopfensitz, the owner.

On the basis of a bid received March 2, 1970, Hopfensitz engaged a contractor, Milton Palliser, the other defendant, for certain repairs and renovations to the leased property, including replacement of the roof. Work began in early April, sometime just prior to the 9th, and continued until about May 4th. The roofing job was finished on or before April 11. The accident was alleged to have occurred on July 21, a date subject to some controversy. Suit was filed July 21, 1971.

Mrs. Whittington died from unrelated causes on June 5, 1971, without having instituted suit for damages for her personal injury. In addition to her husband, the decedent is survived by a son, Royce H. Whittington, and a daughter, Sammy Lanelle Whittington.

Sam W. Whittington and Royce H. Whittington now bring suit. In a joint petition, Sam W. Whittington is suing on behalf of the community for $2,654 alleged due the community for doctor, hospital and drug expenses. Royce H. Whittington, as representative of the succession of the decedent, for $50,000 for pain and suffering allegedly suffered by the decedent, and $50,000 for mental pain and anguish.

They allege that '. . . a great deal of trash, debris, boxes, building materials, and roofing tacks were strewn about . . .' in an unworkmanlike manner, and that in spite of several complaints that only a small amount of the residue was removed. That as a direct result of the negligence of defendants, Hopfensitz and Palliser, in failing to clean the area properly and remove the roofing nails scattered about, three months later the accident occurred. In addition to his liability on account of this negligence, it is contended that the defendant Hopfensitz as owner-lessor is liable also under Articles 670 and 2322 of the Civil Code.

Hopfensitz filed a third party demand against Palliser for breach of contract and negligence and prayed for full indemnity of any judgment which might be rendered against him.

The accident happened while Mrs. Whittington was hanging out clothes in her yard. The sole of her right shoe and foot were penetrated by what was claimed to be a 'roofing tack' causing a puncture would.

Mrs. Whittington was a diabetic at the time of the accident. She first went to Dr. J. H. Ketty, her family physician, for treatment. Dr. Ketty treated the decedent through August with various antibiotics and pain pills. On August 18 he performed an incision for drainage and packed the wound with iodoform gauze (to enable it to heal from the inside out). The wound did not heal and by September 22, Mrs. Whittington still had not improved significantly. At this time, Dr. Ketty, recognizing the possibility of a foreign body being in the wound, referred her to Dr. Patrick R. Hunter, a general surgeon.

From x-rays taken, Dr. Hunter diagnosed her condition as osteomyelitis and on September 25, Mrs. Whittington was hospitalized where she remained until October 21. She was finally discharged from Dr. Hunter's care on March 10, 1971, with her foot apparently healing, and on the road to recovery.

As stated above, the suit was filed on July 21, 1971. The plaintiffs alleged in their petition that the accident occurred on July 21, 1970. During the course of trial they offered testimony indicating that it occurred on July 22, 1970. The defendant, Hopfensitz, contended that the accident happened at the latest on July 19, and on that basis filed an exception pleading the prescription of one year.

The trial judge found as a fact that the accident occurred on July 22, 1970, and overruled Hopfensitz's plea of prescription. We find that the evidence supports this factual conclusion and we agree that the plea of prescription was properly overruled.

Dr. Ketty testified positively from his records that Mrs. Whittington first came in to him on July 22, and further that she told him that the accident had happened less than one hour earlier. It is also significant that Dr. Ketty testified that Mrs. Whittington was not in very much pain when she came in the first day. This would tend to indicate that she sought medical aid without undue delay--before the infection had time to develop.

The defendants point out that in an earlier deposition, Sam Whittington stated that Mrs. Whittington did not seek medical aid until the third day after the accident, thus establishing the date of the accident as July 19. However, it is clear from a reading of the testimony as a whole, that Whittington was confused as to the date his wife had the accident and also as to the first time she went to the doctor. Further, Whittington testified that he was not aware at the time the above deposition was taken that his wife had gone in earlier for a tetanus shot (given on the first office visit).

The testimony supports a finding that the suit was brought within one year of the accident. We find no manifest error in this factual conclusion by the trial judge. The exception of prescription was properly overruled.

The trial judge also found that the contractor, Palliser, performed his job in a haphazard and unworkmanlike manner; that there was less than adequate cleaning and that a substantial amount of nails were left scattered about even after Palliser was supposed to have made a final attempt at cleaning up.

Judgment was rendered in favor of Sam W. Whittington against Hopfensitz and Palliser, in solido, for $1,622.55 plus interest for expenses due the community, and in favor of Royce H. Whittington, as 'the succession representative of the Succession of Lois Sandifer Whittington' against Hopfensitz and Palliser, in solido, for $12,000 plus interest. In addition, on the third party demand judgment was rendered in favor of Albert A. Hopfensitz and against Milton Palliser for full indemnity in the amount of $13,622.55. The defendants were both cast for all costs.

Defendant Hopfensitz appealed suspensively. An appeal bond of $17,000 was timely posted but no rule was filed pursuant to LSA-C.C.P. Art. 5123 to test the sufficiency of the bond. This court will not, therefore, question the validity of the appeal. LSA-C.C.P. Art. 5125.

The plaintiffs, Sam W. and Royce H. Whittington, appealed devolutively praying for an increase in the award of damages and also seeking to have the entire judgment in their favor made In solido. For the reasons hereinafter given we will not reach the questions of quantum or form of the judgment raised by their appeal.

The defendant, Palliser, did not appeal although he filed a brief in this court as 'defendant-appellant.' There is no petition for appeal, order or bond in the record before us. He is not before this court as an appellant. He is before this court only as an appellee as a result of the plaintiff's having taken a devolutive appeal. Hopfensitz appealed only so far as he is cast in judgment to the plaintiffs. The judgment in his favor as third party petitioner against Palliser has not been appealed.

After the appeal was lodged in this court, but prior to submission of the case for a decision, the defendant Hopfensitz filed a peremptory exception of no 'right or cause' of action to the petition of Royce H. Whittington, alleging that under Civil Code 2315, only designated survivors have a right to bring an action for damages for personal injuries sustained by the decedent. Under C.C.P. Art. 2163 the appellate court has the discretion to consider a peremptory exception filed for the first time, if pleaded prior to submission of the case for a decision and if proof of the ground of the exception appears of record. We find that both conditions of this article are met and exercising our discretion we will consider the exception.

This is not a wrongful death action but clearly a survival action for Mrs. Whittington's personal injuries under Civil Code, Art. 2315. The only proper survival action under 2315 is one by one or more of the survivors named in that article in a personal rather than a representative capacity. In this respect, it makes no difference whether the decedent had filed suit or not on her own behalf before her death, nor does it make any difference whether she died as a result of the injury she sustained or from an unrelated cause. J. Wilton Jones Company v. Liberty Mutual Insurance Company, 248 So.2d 878 (La.App.4th Cir. 1970), writ refused 259 La. 61, 249 So.2d 202 (1971). The court said (248 So.2d at p. 891):

'In our opinion the present language provides (at least if designated beneficiaries do survive) for the devolution of the victim's claim, even where he has instituted an action, (or to institute the action if the victim dies without having done so) to the survivors designated by art. 2315. The 'right to recover' belongs to them, and not to the succession of the victim nor to his heirs as such.'

The Succession, through its designated representative has no right to bring a survival action as was attempted here by Royce H. Whittington who specifically brought the action, not as a survivor under C.C....