Thompson v. Vestal Lumber & Mfg. Co.

• Decision Date: 11 December 1944
• Docket Number: 37443.
• Citation: 22 So.2d 842,208 La. 83
• Court: Louisiana Supreme Court
• Parties: THOMPSON v. VESTAL LUMBER & MFG. CO.

22 So.2d 842

208 La. 83

THOMPSON
v.
VESTAL LUMBER & MFG. CO.

No. 37443.

Supreme Court of Louisiana

December 11, 1944

On Rehearing April 30, 1945.

Rehearing Denied June 5, 1945. [22 So.2d 843] [Copyrighted Material Omitted] [22 So.2d 844]

[208 La. 89] G.P.Bullis, of Ferriday, for plaintiff.

Parker, Seale & Kelton, of Baton Rouge, amicus curiae.

Dale, Richardson & Dale, of Vidalia, for defendant.

ODOM, Justice.

Clara Thompson filed suit on August 31, 1942, against the defendant company to recover damages alleged to have accrued to her two minor children on account of the death of their father, who was alleged to have been killed through the fault and negligence of the defendant company. She alleged that the father of her children was employed by, and was at work for, the defendant company; that through the gross fault and negligence of the defendant he [208 La. 90] was killed on September 1, 1941, and that on account of the death of the father of her children they were damaged in the sum of $5000 each. The damages were claimed under Article 2315 of the Revised Civil Code.

She alleged in Paragraph 1 of her petition that she and Marshall Davis, the father of her children, 'lived together in open concubinage or common law marriage * * * for many years, but were never married, altho no lawful impediment to marriage existed.' In Paragraph 2 of her petition she alleged that 'Of said union, two children were born, namely, Myrtis Lee Davis, now four years old, and Jean Davis, now 14 months old,' and alleged in Paragraph 3 that 'Said children were the illegitimate children of said Marshall Davis, and were never acknowledged by him as his children, by notarial act, but were always acknowledged as his children, by him, throughout the community, and lived with him, in the same house with him and said Clara Thompson, and were supported by said Marshall Davis, from their birth to the date of his death, as his children.'

She prayed for judgment 'in favor of said minor children * * * through their said mother,' and against the defendant lumber company, in the full sum of $5000 for each of said children, or a total of $10,000.

Defendant excepted to the petition on the ground that it failed to allege either a valid cause or a valid right of action.

Before these exceptions were passed on by the trial judge, the plaintiff filed a supplemental [208 La. 91] petition, claiming compensation for her children under Act 20 of 1914, as amended by Act 242 of 1928. Defendant filed an exception to the suit for compensation under the Workmen's Compensation Act on the ground that it disclosed neither a lawful cause nor a lawful right of action. The trial court sustained these exceptions, holding that the plaintiff had no cause or right of action either under the provision of Article 2315 of the Revised Civil Code or under the Workmen's Compensation Act, and dismissed plaintiff's suit in toto.

The plaintiff appealed to the Court of Appeal, Second Circuit. That court affirmed the ruling of the trial judge. 16 So.2d 594. Plaintiff applied to this court for writs, which were granted, and the case is now before us for review.

The ruling of the district court and of the Court of Appeal that plaintiff has no cause or right of action under Article 2315 of the Civil Code for damages resulting from the death of the father of her children, even though caused by the gross fault and negligence of the defendant, is supported by repeated decisions of this court.

According to plaintiff's allegations, her children are bastards. In Youchican v. Texas & Pacific Ry. Co., 147 La. 1080, 86 So. 551, this court held that under our jurisprudence it is well settled that the [22 So.2d 845] provisions of Article 2315 of the Revised Civil Code, granting a right of action to a child or children for damages resulting from the tortious death of a parent, have reference to legitimate children--that is, [208 La. 92] children born in wedlock--or to children duly legitimated. See also Lynch v. Knoop, 118 La. 611, 43 So. 252, 8 L.R.A.,N.S., 480, 118 Am.St.Rep. 391, 10 Ann.Cas. 807; Landry v. American Creosote Works, 119 La. 231, 43 So. 1016, 11 L.R.A.,N.S., 387; Green v. New Orleans, S. & G. I. R. Co., 141 La. 120, 24 So. 717.

The Court of Appeal cited and relied upon the above cited casses in support of its ruling that the plaintiff had no cause or right of action under Article 2315 of the Code. Its ruling was correct.

The ruling of the district court and of the Court of Appeal that plaintiff has no cause or right of action to recover compensation for her children under the Workmen's Compensation laws of the state was also correct. The Workmen's Compensation law, which is Act 20 of 1914, as originally drafted provided in Section 8 for compensation to be paid an injured employee by his employer for injuries sustained by the employee while engaged at work in the scope and course of his employment where such injuries resulted in disability.

It provided also for compensation to be paid by the employer to the legal dependents of the employee in cases where the injuries suffered by the employee resulted in death.

Section 8, Subsection 1(e), contained the following provisions:

'For injury causing death within one year after the accident, there shall be paid to the legal dependents of the employee wholly dependent upon his earnings for support [208 La. 93] at the time of the injury, a weekly sum as hereinafter provided * * *.' (Italics here and elsewhere in this opinion are the writer's.)

That paragraph further provided that, if the employee leaves 'legal dependents' only partially dependent for support upon his wages at the time of the injury, such partial dependents shall receive weekly payments in proportions specified.

Subsection 2, Section 8 of that act provided that:

'The following persons shall be condlusively presumed to be wholly dependent for support upon a deceased employee:

'(a) A wife upon a husband with whom she was living at the time of the injury and whom she has not abandoned for cause at the time of his death.

'(b) A husband mentally or physically incapacitated for wage earning upon a wife with whom he was living at time of her injury.

'(c) A child or children under the age of eighteen years (or over said age, if physically or mentally incapacitated from earning) upon the parent with whom he is, or they are, living at the time of the injury of such parent. * * * In all other cases, question of legal dependency in whole or in part, shall be determined in accordance with the facts as they may be at the time of the injury; and in such other cases, if there is more than one person wholly dependent the death benefit shall be divided equally among them, and the persons partially dependent, if any, shall receive no [208 La. 94] part thereof; if there is no one wholly dependent, and more than one person partially dependent, the death benefit shall be divided among them according to the relative extent of their dependency. No person shall be considered a dependent unless a member of the family of the deceased employee or bearing to him the relation of husband or widow, or lineal descendant or ascendant, or brother or sister, or legally adopted child.'

That part of Section 8 of the original act, which relates to the payment of compensation in cases where the injury sustained by the employee results in death, has been amended seven times. It was first amended by Act 243 of 1916. Subsection 1(f), Section 8 of the 1916 act, provided that:

'For injury causing death within one year after the accident, compensation * * * shall be paid for a period of three hundred weeks, to the following persons.'

These persons are named in subsequent paragraphs. Paragraphs (11) and (12) of that subsection read as follows:

'(11) In all cases provided for in this schedule the relation of dependency must exist at the time of the injury.

'(12) Compensation shall be payable under this schedule to or on account of any child or brother or sister or other dependent member of the family not otherwise specifically provided for, only if and while such child, brother, sister, or other dependent member of the family not otherwise [22 So.2d 846] specifically provided for is under the age of eighteen years * * *.'

[208 La. 95] The terms 'child' and 'children' as used in this act are defined as follows:

'The term 'child' and 'children' shall cover only legitimate children or acknowledged illegitimate children, but shall include step-children and adopted children if members of the decedent's family at the time of his death, and shall also include posthumous children.'

It will be noted that in the 1914 act the compensation due in case the injuries received by the employee result in death was payable to 'the legal dependents of the employee,' who were specifically named in Section 8, Subsection 2(a), (b), and (c), while in the act as amended in 1916 these payments were to be made to certain named individuals, such as a widow, widower, child or children, father, mother, brother and sister, 'or other dependent member of the family.'

The 1916 act defined what was meant by the terms 'child' and 'children,' specifying that those terms should cover only legitimate children or acknowledged illegitimate children, and should include step-children, adopted children, if members of the deceased's family at the time of his death, and also posthumous children. There was no such definition in the 1914 act, that act merely providing that no person should be considered a dependent unless a member of the family of the deceased employee 'or bearing to him the relation of husband or widow, or lineal descendant or ascendant, or brother or sister, or legally adopted child.' In the 1916 act there was no mention made of persons 'conclusively presumed [208 La. 96] to be wholly dependent for support upon a deceased employee.'

The original...