92 So. 360 | La. | 1922
On January 4, 1921, Albert Hanna instituted suit in the Fifteenth judicial district court to recover damages for an assault and battery, alleged to have been committed by defendant on his minor son, Paul I. Hanna, while in the employment of the defendant. Plaintiff prayed for judgment in his favor, for the account of his minor son, in the sum of $500, with legal interest from judicial demand until paid.
On January 27, 1921, defendant filed an exception of no cause nor right of action, for the reason that the petition does not disclose the authority of plaintiff over his minor son, Paul I. Hanna. On January 28, 1921, the district court overruled this exception.
On February 11, 1921, before this ease had been fixed for trial, Albert Hanna father of Paul I. Hanna, departed this life at his home in Paradise, Pa.
On March 14, 1921, Paul I. Hanna, being still a minor over 18 years of age, was fully emancipated by judgment of the Fifteenth judicial district court in and for the parish of Calcasieu, and relieved from all disabilities which attached to minority. On March 14, 1921, after having been fully emancipated, Paul I. Hanna filed his petition in this case, setting forth the death of his father and his emancipation by judgment of the court, asking that he be made a party plaintiff in this case in his own right, and that he be allowed to prosecute this suit for his own use and benefit, and reiterating all of the allegations of the original petition filed by his father.
On March 17, 1921, a citation, together with a copy of the petition of Paul I. Hanna, was duly served on the defendant, C. D. Otis, and, on March 30, 1921, defendant filed a second exception to the original petition of Albert Hanna and to the supplemental petition of Paul I. Hanna, making himself a party plaintiff, alleging that said petitions taken together, disclosed a lack of capacity of the present plaintiff to stand in judgment in the cause of action sued on, and that said petitions taken together disclosed no cause nor right of action, which exceptions were overruled by the lower court.
On January 27, 1921, defendant filed his answer to the petition of Albert Hanna, and, on April 1, 1921, defendant filed his answer to the amended and supplemental petition of Paul I. Hanna, and claimed judgment in re-convention against him for the sum of $18.65, alleging that defendant had deposited said sum in the city court of Lake Charles, La., as a portion of the wages and costs sued for by Paul I. Hanna in said court; and that although said suit was dismissed because Paul I. Hanna was a minor, yet said amount had been paid over to him by the court.
The amended petition of Paul I. Hanna was filed in this case after the exception of no cause nor right of action urged against the original petition of the father had been
We find in tbe record no objection made to tbe filing of tbe supplemental petition of Paul I. Hanna.
We fail, therefore, to see bow it can be logically contended that tbe original and supplemental petitions taken together can be construed as disclosing lack of capacity on the part of tbe present plaintiff, Paul I. Hanna, to stand in judgment in this case, as tbe legal right of an emancipated minor over tbe age of 18 years to sue in bis own name and in bis own behalf for personal injuries must necessarily be conceded; and especially as defendant in his answer to tbe supplemental petition of Paul I. Hanna has prayed for judgment in reconvention against him, thereby admitting his capacity to stand in judgment, and that, as plaintiff, be is rectus in curia.
We therefore conclude that our learned brothers of the Court of Appeal erred in sustaining tbe exception of no cause nor right of action in this case.
Discussing tbe merits of tbe case, we find from plaintiff’s petition that be alleges that defendant maliciously and without provocation assaulted him, in tbe presence of several of tbe people living in 'the neighborhood, with a pitchfork, striking plaintiff a blow on tbe shoulder, and a blow on tbe bead, severely cutting and lacerating bis bead, and leaving plaintiff in such a weakened physical condition from loss of blood as td render him unfit to do any work for 5 days, for. which loss of time plaintiff claims $4 per day, or the sum of $20.
Plaintiff alleges that, by receiving these injuries, bis physical condition was so impaired, that, after regaining bis health sufficiently to enable him to seek new employment, be was compelled tp accept employment at considerably less wages than be bad formerly received, for this loss plaintiff claims the additional sum of $55.
Plaintiff also alleges that be is entitled to recover the further sum of $25 for medical services; also tbe sum of $200 for tbe physical pain, suffering, and humiliation caused him by said assault, publicly inflicted, and punitive or exemplary damages in tbe sum of $250, because said assault was committed with an extremely dangerous weapon, and was malicious and without any manner of provocation.
Defendant admits that plaintiff was in his employ at tbe time of tbe alleged assault; that plaintiff was receiving $4 per day at tbe time of tbe injury; and that be struck plaintiff one blow on tbe bead, causing tbe loss of a small quantity of blood.
Defendant alleges that, at tbe time tbe blow was struck be was criticizing plaintiff for bis loafing at bis work, and that plaintiff was answering back in an impertinent manner, that tbe two were close to each other at tbe time, defendant working with a
Defendant alleges that plaintiff had worked for him at his nursery for 22% days at $4 per day, and had received $95.50, but that plaintiff had loafed half his time, as defendant subsequently discovered, and defendant prays for judgment in reconvention against plaintiff in the sum of $47.75.
Defendant also claims judgment in reconvention against plaintiff in the sum of $18.-65, as already recited in this opinion.
The physician’s charge of $25 for sewing up plaintiff’s wound and for 8 treatments is reasonable and is approved.
The lower judge who heard the witnesses and noted their manner of testifying on the stand, concluded from all the facts and circumstances of the case that defendant’s attack on plaintiff was unfounded, cruel, and cowardly. While the testimony is 'conflicting, yet, in view of the fact that defendant pleaded guilty in the city court of Lake Charles to making this attack, and in view of the further fact that defendant admits in his answer that he provoked the difficulty by rebuking the plaintiff for his alleged shiftlessness, and that he struck him the first blow with a pitchfork, it is plain to our minds that defendant was at fault, and we concur with the trial judge in accepting as true the statement of plaintiff that, while he replied to this rebuke spiritedly, yet he used no insulting language to defendant at the time of the assault, made no attempt to strike him with a spade, as alleged in defendant’s answer, and had his back turned when the blows were inflicted by defendant.
Even the daughter of the defendant admits in her testimony that she raised the window and called out to her father: “Oh, Papa, that is no way to act!” Evidently such an exclamation would not have been made, if her father at the time was in the act of defending himself against an assault with a shovel in the hands of the plaintiff.
The blow on the head cut plaintiff’s scalp
Plaintiff claims $200 damages for pain, suffering, and humiliation. The trial judge finding that no humiliation was proven, awarded plaintiff $195 for pain and suffering, and stated in his opinion that he would have allowed larger damages, had they been claimed.
We find from the opinion of the trial judge that the item of $55 for loss of earning capacity as the result of the wound was abandoned by plaintiff’s counsel in argument.
Our conclusion is that the judgment of the district court is correct.
It is therefore ordered, adjudged, and decreed that the judgment of the Court of Appeal be annulled, avoided, and reversed, and it is now ordered that the judgment of the district court be affirmed, at the cost of the defendant.