204 F.2d 173 (5th Cir. 1953), 14382, Ellis v. Henderson

Docket Nº:14382.
Citation:204 F.2d 173
Party Name:ELLIS et al. v. HENDERSON et al.
Case Date:May 01, 1953
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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204 F.2d 173 (5th Cir. 1953)

ELLIS et al.



No. 14382.

United States Court of Appeals, Fifth Circuit.

May 1, 1953

Rehearing Denied June 17, 1953.

Jesse S. Guillot, New Orleans, La., for appellants.

Alfred C. Kammer, New Orleans, La., G. Harrison Scott, Asst. U.S. Atty., New Orleans, La., for appellees, Rosen, Kammer, Hopkins, Burke & Lapeyre, New Orleans, La., of counsel.

John N. McKay, U.S. Atty., New Orleans, La., for appellee Henderson, Harry N. Routzohn, Sol, of Labor, Dayton, Ohio, Ward E. Boote, Asst. Sol., and Herbert P. Miller, Atty., U.S. Dept. of Labor, Washington, D.C., of counsel.

Before HOLMES, STRUM and RIVES, Circuit Judges.

RIVES, Circuit Judge.

The nine appellants, plaintiffs in the district court, brought this action under 33 U.S.C.A. § 921(b) to review the order

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of the Deputy Commissioner denying their claims for compensation under the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1424, 33 U.S.C.A. § 901 et seq., arising out of the death of their alleged father, Edward Ellis. The Deputy Commissioner found 'that not any one of the said nine children named above is a child, or children, of the deceased, Edward Ellis, but are children of Charles Joseph Southall born to Albertha W. Ellis by him and none (no one) of the said children is entitled to compensation (death benefits) under the provisions of the said Act for the death of the decedent, Edward Ellis.'

The appellees, defendants below, moved to dismiss the complaint because it failed to state a claim upon which relief could be granted, insisting that the findings of the Deputy Commissioner were supported by substantial evidence. The district court sustained the motion, dismissed the complaint, and this appeal ensued.

The appellants plant their appeal solely upon the contention that since the Deputy Commissioner found that their mother was married to Edward Ellis on November 16, 1923 and never divorced, the child being born in wedlock, under the law of Louisiana, are now conclusively presumed to be the legitimate children of their mother's husband, Edward Ellis. If that contention is not sound, their appeal cannot be sustained. Hence the sordid facts need not be detailed. It is sufficient to say that instead of living together, each member of the marriage cohabited with another person of the opposite sex and the nine children were recognized as the children of one Southall and so registered until after the death of Edward Ellis. At the same time, the husband and wife continued to live in the same neighborhood each with the other.

Section 9 of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 909, provides for compensation for the death of an employee, known as a death benefit, payable under the circumstances of this case to the 'child or children of the deceased' employee, if any such existed. Paragraph (14) of section 2 of the Act, 33 U.S.C.A. § 902(14), refers to the word 'child' in the following language:

"Child' shall include a posthumous child, a child legally adopted prior to the injury of the employee, a child in relation to whom the deceased employee stood in loco parentis for at least one year prior to the time of injury, and a stepchild or acknowledged illegitimate child dependent upon the deceased, but does not include married children unless wholly dependent on him.'

The word 'child' is not further defined in the Act. That the word means not a mere biological fact but a relationship sanctioned by law is made clear by the provisions for a child 'legally adopted' and for one to whom the deceased employee stood 'in loco parentis', and, even more significantly, by the distinction drawn between 'child' and an 'acknowledged illegitimate child'. To be entitled to benefits, the latter must be 'dependent upon the deceased'; as to the former, when under eighteen years of age, dependency is not required. 33 U.S.C.A. § 902(14); Turnbull v. Cyr, 9 Cir., 188 F.2d 455; Maryland Drydock Co. v. Parker, D.C. Md., 37 F.Supp. 717. The word 'child' employed in a document expected to have legal significance, and expecially in a statute, to designate relationship with a father, would, without more, ordinarily refer to legitimate offspring. 1 Certainly the language of this Act makes it clear...

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