242 So.2d 567 (La. 1970), 50400, Stokes v. Aetna Cas. & Sur. Co.

Docket Nº:50400.
Citation:242 So.2d 567, 257 La. 424
Party Name:Julia Chambers STOKES et al. v. AETNA CASUALTY AND SURETY COMPANY et al.
Case Date:December 14, 1970
Court:Supreme Court of Louisiana
 
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Page 567

242 So.2d 567 (La. 1970)

257 La. 424

Julia Chambers STOKES et al.

v.

AETNA CASUALTY AND SURETY COMPANY et al.

No. 50400.

Supreme Court of Louisiana.

December 14, 1970

Rehearing Denied Jan. 18, 1971.

[257 La. 426] Lacour & Wilson, Vanue B. Lacour, Baton Rouge, for defendant-appellant-applicant.

Dale, Owen, Richardson, Taylor & Mathews, W. Henson Moore, Baton Rouge, for defendants-appellees-respondents.

HAMLIN, Justice.

Henry Clyde Stokes was injured on June 21, 1967, while in the course and scope of his employment with Earl Gibbon Transport, Inc., and he died as a result thereof the following day.

At the time of his death Stokes resided and maintained a household with one Willie Mae Weber to whom he was not married, he, at the time, being the husband of Adlay Jones Stokes. But living in the Stokes home were the four legitimate, minor children born of the marriage between Stokes and Adlay Jones Stokes, and one Unacknowledged illegitimate minor born of the relationship of Stokes and Willie Mae Weber. A second illegitimate child of the latter and Stokes was born posthumously.

[257 La. 427] On June 29, 1967 a suit was filed for workmen's compensation benefits on behalf of Stokes' four legitimate children. By answer and reconventional demand Stokes' employer and its insurer, Aetna Casualty and Surety Company, converted the suit into a concursus proceeding, they interpleading Willie Mae Weber who was ordered to appear and assert any claims she might have in behalf of the illegitimate minor

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child of Stokes. (Hereafter, reference to the 'employer' will include both it and its insurer.)

Willie Mae Weber appeared in the concursus proceeding and claimed compensation benefits for her then living minor child.

Because the accident which caused the death of Stokes occurred under circumstances giving rise to a third party claim, a tort action was brought on behalf of the legitimate children against the alleged third party tort feasor and, subsequently, recovery was had for them (by compromise and settlement) of an amount in excess of the maximum workmen's compensation that they could recover for the death of their father.

Later, the legitimate children dismissed their compensation demand, inasmuch as the amount thereof would be included in the tort settlement and payable to the employer (see LRS 23:1101--23:1103). And the defendant employer filed an amended [257 La. 428] pleading in the concursus proceeding asserting the extinguishment of the compensation claim by reason of the tort settlement, it praying that judgment be rendered rejecting the demands of all parties.

Willie Mae Weber did not seek damages from the tort feasor. However, she filed a supplemental pleading in the concursus proceeding claiming benefits for her born child and for the illegitimate posthumous offspring.

The case ws tried on a stipulation of facts setting forth the circumstances heretofore shown.

The district court decreed that the legitimate children, there being four in number, were entitled to the maximum amount of compensation then allowable ($35 per week for four hundred weeks) and that this had been settled in the tort action. It further held that there be judgment in favor of Willie Mae Weber for the use and benefit of her illegitimate children for any compensation benefits which might be remaining and unused by the four legitimate children.

I make a simplified statement of facts was affirmed. La.App., 232 So.2d 328. We granted certiorari. 255 La. 804, 233 So.2d 247.

The first question posed by the facts of this case is whether the law of this state, which relegates a decedent's unacknowledged illegitimate, dependent children [257 La. 429] (members of his family) to a position inferior to that of his legitimate (or legally acknowledged) dependent children--so that when (as in this case) the latter are entitled to all of the allowable compensation and the unacknowledged, illegitimate are entitled to none of it--discriminates against the illegitimates, as being violative of the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States--although in the absence of legitimates (or a sufficiently small number of them) the unacknowledged illegitimate children would have a right to recover. (See LRS 23:1021, 23:1231, 23:1232, 23:1252 and 23:1253, and Thompson v. Vestal Lumber and Manufacturing Company, 208 La. 83, 22 So.2d 842.)

In urging that the compensation law is unconstitutional, Willie Mae Weber (mother of the illegitimate children) relies principally on the decisions (or the rationale thereof) in Levy v. Louisiana through The Charity Hospital of Louisiana at New Orleans Board of Administrators et al., 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 and its companion holding in Glona v. American Guarantee and Liability Insurance Company et al., 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441.

The Levy suit, brought in a Louisiana district court, was on behalf of several illegitimate children for Damages (not workmen's compensation) for the wrongful [257 La. 430] death of their mother. The Glona tort action was filed by a mother in Federal District Court for the wrongful death of her illegitimate child. Both cases were based

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on Article 2315 of the Louisiana Civil Code which, by interpretation of this court, permits recovery for wrongful death by legitimate relatives, but not when the relationship is illegitimate. The Court of Appeal, Fourth Circuit, denied recovery to the Levy offspring (192 So.2d 193) and we denied certiorari (250 La. 25, 193 So.2d 530). The same result was reached in the Federal Court of Appeal (Fifth Circuit) in Glona, 379 F.2d 545...

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