Winston HICKMAN, Individually, et al.
v.
The PARISH OF EAST BATON ROUGE et al.
Court of Appeal of Louisiana, First Circuit.
*487 Wm. J. Guste, III, Roy F. Guste, James M. Colomb, Jr., and J. Harrison Henderson, New Orleans, for plaintiffs-appellants.
Wallace A. Hunter, Baton Rouge, for defendants-appellees Ross Cox and Ins. Cо. of North America.
Joseph F. Keogh, Parish Atty., and Edward V. Fetzer, Asst. Parish Atty., Baton Rouge, for defendant-appellee Parish of East Baton Rouge.
Charles W. Franklin and Wm. H. Cooper, Baton Rouge, for defendant-appellee Barney Bozeman, Sr.
Ben F. Day, Baton Rouge, for defendant-appellee Klatex, Inc.
Edward F. Glusman and Aubrey L. Moore, Jr., Batоn Rouge, for Employers' Surplus Line Ins. Co.
James R. Conway, III, Metairie, for defendant-appellee Charity Hospital of New Orleans, La.
Before LOTTINGER, COVINGTON and BAILES, JJ.
COVINGTON, Judge.
This action instituted by Winston Hickman, individually, as provisional curator of his wife, and as natural tutor of his minor children, seeks recovery of damages for the personal injuries sustained by himself and by his wife, and also recovery оf damages for loss of services and loss of love and affection, and other elements of damage which might properly be characterized as loss of soсiety, of their mother by the children.
It is alleged that the injuries to the husband and wife were sustained when the husband drove his automobile, during the early morning hours of May 30, 1970, into an unmarked drainage canal which was undergoing improvements under a public works contract let by the city-parish government. The pleadings show that Mr. and Mrs. Hickman were alone in the automobile at the time of the accident. The children, not being in the automobile, were not themselves physically injured, and they were not witnesses to the accident. The aсcident and the resulting injuries are attributed to the negligence of the defendants, the City of Baton Rouge, the Parish of East Baton Rouge, the contractors and their insurers, in failing tо place preventive barricades and to give adequate warning of the hazardous condition existing in the area, which constituted a hidden trap to the motoring рublic.
The the claims on behalf of the minor children, an exception of no cause of action was filed. After hearing, the trial court sustained the exception, dismissing the demands of the minor children. It is from this judgment that the natural tutor of the minor children has appealed on their behalf.
As we read the delictual articles of the Civil Code, artiсles 2315-2324, the judgment of the trial court must be affirmed. The cause of action is accorded only to the victim of the offense during his life, is personal to him and is not shared by any othеr person, "however near may be that relation." See Black v. The Carrollton Railroad Company,
Our view of the tort articles of the Code is substantiated by the long-standing jurisprudential rule that one person can not recover damages for mental anguish resulting from injury to another person; Black v. The Carrоllton Railroad Company, supra; McKey v. Dow Chemical Co., Inc., La.App.,
The appellants urge that the trial court erred and they attempt to distinguish the sizeable line of cases, beginning with Black v. The Carrollton Railroad Company, supra, in which a father who witnessed his son being mutilated by one of the defendant's trains was denied recovery. To support their position the appellants rely primarily upon thе cases of Valence, Jordan, Jiles and Holland.
We have carefully studied the cited cases. Although Valence v. Louisiana Power & Light Co., La.App.,
Jiles v. Venus Community Center Benev. Mut. Aid Ass'n,
Holland v. St. Paul Mercury Insurance Co., La.App.,
In Holland the Court said at page 158:
"We believe the foregoing views neither disturb nor deviate from the rule obtaining in this state (to which this Court continues to adhere) to the effect a plaintiff may not rеcover for mental pain and anguish occasioned by injury to another."
To the same effect is the case of Dudley v. State Farm Mutual Automobile Insurance Company, La.App.,
Our view, expressed above, that one person has no cause of action in tort for damages to another person finds additional support in the сases of McKey v. Dow Chemical Co., Inc., supra, Robertson v. *489 Aetna Casualty and Surety Company, supra, and Sabatier v. Travelers Insurance Company, La.App.,
In the McKey case we refused to allow a wife's claim for loss of consortium resulting from personal injury to her husband, dismissing her claim on an exception of no cause of action. We said at page 518:
"We think the rationale of the jurisprudence, as set forth in Holland, above, equally applicable to Appellant's claim for the injured party's marital obligations to his spouse.
"We deem it unnecessary to repeat in detail the underlying reasons for the above stated long standing jurisprudential rule. It suffices to stаte it is based in part on the practicality of justice which protects a tort-feasor from the unreasonable demands of myriads of claimants who sustain no persоnal injury as a result of the tort. The rationale of this premise is the avoidance of opening a field of litigation which will flood the courts with actions in which practicаl justice cannot be meted out to both plaintiff and defendant alike. Another basic premise of the rule is that, under such circumstances, there is no breach of a legal duty toward the party claiming damages."
In Robertson we refused to allow the brothers of an injured minor child to maintain an action for damages for mental anguish they sufferеd upon learning of their brother's injury. Other than the injured child, the brothers were not involved in the accident and did not witness it.
In the Sabatier case, which is analogous to the instant case, the Court denied a minor daughter recovery for mental anguish over the condition of her father who was injured in an automobile accident. The facts show that the father and daughter were involved in an automobile accident in which the daughter was not physically injured. Being a passenger, the daughter witnessed the accident and the сondition of her father. The trial court's award of damages to the daughter for mental anguish over her father's physical condition was reversed on appeal.
The Court in Sabatier, said:
"In the absence of proof that she sustained physical injuries she is entitled to no recovery. Her apprehension about her father's condition would be no basis for а judgment. It is well established that one person cannot recover damages for worry and mental suffering as a result of injuries to another."
Accordingly, we think the rationale оf the Holland, McKey and Sabatier cases is equally applicable for loss of society and loss of services of a mother by her minor children.
For the foregoing reasons, the judgment of the trial court, sustaining the exception of no cause of action, is affirmed at appellants' costs.
Affirmed.