Stokes v. Aetna Cas. & Sur. Co.

Citation232 So.2d 328
Decision Date17 November 1969
Docket NumberNo. 7766,7766
PartiesJulia Chambers STOKES et al., v. AETNA CASUALTY AND SURETY COMPANY et al.
CourtCourt of Appeal of Louisiana (US)

Nathan E. Wilson, Vanue B. Lacour, Baton Rouge, for appellant.

Daniel Atkinson, of Dale, Richardson & Dale, W. Henson Moore, Baton Rouge, for appellee.

Before LANDRY, SARTAIN and ELLIS, JJ.

LANDRY, Judge.

The issue presented by this appeal is whether illegitimate children are entitled to workmen's compensation benefits from the employer and insurer of their deceased father, notwithstanding the decedent left legitimate offspring in sufficient number to exhaust maximum benefits payable under the law. The trial court resolved the question adversely to the illegitimates involved. We affirm the result reached below.

No dispute exists as regards the pertinent facts and circumstances . Henry Clyde Stokes died June 22, 1967, of injuries received the previous day during the course and within the scope of his employment by Earl Gibbon Transport, Inc., the insured of defendant Aetna Casualty and Surety Company (Aetna). At the time of his death, Stokes was lawfully married to but living separate and apart from Adelaide Jones Stokes. Of this union four legitimate children were born, namely, Harriet Stokes, born February 17, 1956; Hattie Marie Stokes, born in February, 1959; Henry Clyde Stokes, Jr., born September 23, 1960, and Anthony Stokes, born August 18, 1963.

For three years preceding his demise, decedent lived in a 'common law union' with Willie Mae Weber, who bore decedent a daughter, Lisa (Letha) Marie Weber, born April 27, 1966. Of this same illicit relationship a child, Joseph Lee Weber, was born posthumously on January 4, 1968.

It is stipulated in this case that decedent and his four offspring lived openly with Willie Mae Weber in a single household as a family unit. It is also stipulated the 'common law wife' and all five children were dependent upon decedent for support and maintenance. We note, however, these stipulations are to some extent contrary to our factual findings in State ex rel. Stokes v. Stokes, La.App., 222 So.2d 573.

Following decedent's death a claim for workmen's compensation benefits was instituted by Julia Chambers Stokes, mother of decedent, against decedent's employer and Aetna claiming maximum compensation benefits for her four legitimate grandchildren. Defendant employer and insurer responded with an answer and reconventional demand converting the proceeding into a concursus. Defendants also impleaded Willie Mae Weber who was directed to assert any rights she might have on behalf of the illegitimate children. Willie Mae Weber answered asserting dependency of herself and her child, Lisa (Letha) Marie Weber, on decedent. She prayed that 'she, together with her minor child, Lisa Marie Weber, be recognized and declared to be dependent members of the decedent's family and as such entitled to compensation according to law.'

The accident which caused decedent's death occurred under circumstances giving rise to an action in tort against a third party . On behalf of the four legitimate children an action in tort was instituted against the third party tort-feasor. This claim was settled and compromised by payment to the legitimate children of a sum in excess of maximum recoverable workmen's compensation benefits . Subsequently the compensation claim of the legitimate children was dismissed. Defendant employer and insurer then moved rejection of the claim on behalf of the two illegitimate offspring on the ground that the four legitimate children exhausted all compensation benefits payable. On this premise it was urged that two illegitimate claimants are without any right of recovery under the provisions of the Louisiana Workmen's Compensation Law. Appellant concedes the claim of the four legitimate children exhausted all benefits for which defendant-employer was liable. However, appellant resisted the motion to dismiss on the ground that denial of compensation benefits to the illegitimate children is violative of the Equal Protection and Due Process clauses of the Fourteenth Amendment to the Constitution of the United States. Appellant then prayed for judgment in her favor 'for the use and benefit of the minors Lisa Marie Weber and Joseph Lee Weber for the scheduled amount of compensation according to law.' In further response to defendants' motion to dismiss, appellant repeated the special plea that rejection of the compensation demands of the two illegitimates because of their birth out of wedlock would deny them the equal protection and due process of law guaranteed by the Fourteenth Amendment to the Constitution of the United States.

In Louisiana the rights of children to workmen's compensation benefits are provided for in LSA-R.S. 23:1232. Paragraph (6) of the statute stipulates if there are three or more children, they shall divide among them compensation equivalent to sixty-five per cent of decedent's wages. LSA-R.S. 23:1202 (as of the date of decedent's death) provides maximum benefits of $35.00 per week.

Appellant concedes that prior to the advent of Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (May 20, 1968), and Glona v. American Guarantee & Liability Insurance Co., 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441 (May 20, 1968), in this state unacknowledged illegitimates were not deemed 'children' within the meaning of the term as employed in LSA-R.S. 23:1232(6). Appellant further acknowledges that before Levy, above, acknowledged illegitimates qualified under LSA-R.S. 23:1232(8) as 'other dependents' but on authority of Thompson v. Vestal Lumber & Mfg. Co., 208 La. 83, 22 So.2d 842; Fidelity and Casualty Company of New York v. Ivory, La.App., 129 So.2d 894, and Jenkins v. Pemberton, La.App., 87 So.2d 775, such persons were entitled to compensation benefits only to the extent legitimate issue failed to exhaust maximum benefits payable.

Counsel for appellant argues, however, that the above cited statute and authorities, relegate acknowledged illegitimates to a secondary role resulting in an invidious discrimination against a certain class of individuals. On this basis it is contended our former law and jurisprudence must yield to the rule announced by the Supreme Court of the United States in Levy and Glona, supra, and followed by our own Supreme Court in Levy v. State Through Charity Hospital of Louisiana, see 253 La. 73, 216 So.2d 818.

Appellant acknowledges Levy, above, is factually different from the case at bar. In Levy the illegitimate children of a deceased mother claimed damages in tort under our general tort law as set forth in LA-R.C.C. Article 2315. Here the illicit offspring are seeking compensation benefits allegedly due because of the death of their father. We note one further material distinction between Levy and Glona, above, and the case at bar. In the cited authorities, it does not appear that either decedent left legitimate issue.

Nevertheless, appellant contends the thrust of Levy and Glona, above, 'in their broad sweep invalidate discrimination against illegitimate children in all areas of substantive legal right' and adds that 'the pronouncement of those cases seems particularly applicable to the narrow issue of this case.' Continuing his argument, counsel notes that except for marriage, the illegitimates concerned were part of decedent's family living under the same roof in a common household with their legitimate sisters and brothers, their father and their mother who was the step-mother of the legitimate children. Because the illegitimates were equally supported by their father, it is contended an invidious discrimination results by denying them the subsistence intended to be provided by the Louisiana Workmen's Compensation Law.

Counsel does not particularize the proportionate share of compensation benefits to which the illegitimates are presumably entitled. We assume the contention is that each out of wedlock child is entitled to one-sixth of the benefits provided by law.

On the other hand, appellees maintain the rule in Levy is so revolutionary and far reaching that the application of the doctrine therein announced must be confined to the circumstances involved therein. On this basis appellees argue Levy should be confined to situations where illegitimates seek recovery from a tort-feasor who would otherwise escape liability for his tortious act.

We find, however, it is unnecessary to a determination of this matter that consideration be given to the extent of Levy's application in the field of substantive law.

We so conclude because we find there can be no recovery by present claimants under any legal concept without according Levy retroactive effect. The demise with which we are here concerned antedated the Levy decision. To apply Levy in retrospect would, in our view, violate vested rights enjoyed by defendant-employer and its insurer.

The general rule respecting prospective or retrospective operation of laws and the definition and application of the principle is stated as follows in 50 Am.Jur., Verbo Statutes, § 475 and 476, pages 492 and 493, as follows:

' § 475. Generally.--In the absence of an express constitutional inhibition retrospective laws are not prohibited as such. Moreover, the Constitution of the United States does not in terms prohibit the enactment by the states of retrospective laws which do not impair the obligation of contracts or partake of the character of ex post facto laws. Thus, prior to the enactment of the Fourteenth Amendment to the Federal Constitution, a retrospective law, unless falling within other constitutional inhibitions, could constitutionally operate to divest property rights. After the passage of the Fourteenth Amendment, however, the protection afforded by the due process clause was extended so as to prevent retrospective laws from divesting rights of...

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10 cases
  • Stewart v. Gordon
    • United States
    • Court of Appeal of Louisiana (US)
    • October 3, 2018
    ...a dependent, unacknowledged, illegitimate child which had been denied by the Louisiana courts. Stokes v. Aetna Casualty and Surety Co. , 232 So.2d 328 (La.App. [1st Cir] 1969), aff'd 257 La. 424, 242 So.2d 567[ (1970) ]. In an opinion authored by Mr. Justice Powell it was held that, by rele......
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    • April 24, 1972
    ......1515, 20 L.Ed.2d 441 (1968). .           On June 22, 1967, Henry Clyde Stokes died in Louisiana of injuries received during the course of his employment the previous day. At the ......
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    ......210.         In Stokes v. Aetna Casualty and Surety Company, 232 So.2d 328 (La.App.1970), that ......
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