Balthazar v. Swift & Co

• Citation: 38 So. 2,38 So.2d 397
• Decision Date: 01 January 1928
• Docket Number: 10540,10541
• Parties: BALTHAZAR et al. v. SWIFT & CO
• Court: Court of Appeal of Louisiana (US)

38 So. 2

38 So.2d 397

BALTHAZAR et al. v. SWIFT & CO

Nos. 10540, 10541

Court of Appeal of Louisiana, Orleans

January 1, 1928

n* Furnished by the Court for publication Jan., 1949.

SYLLABUS

In determining the genuineness of private writings relied upon by litigants, courts are guided by expert opinion surrounding circumstances, intelligence of the alleged authors, their ability to write, and the plausibility of their having done so in the light of the contents of the writings as determined by prevailing circumstances and the customary motives of human conduct.

A father, whether dependent or not, has no right of action under the compensation law for the death of an employee in the course of his employment if there is a surviving wife, in esse, whether entitled to compensation or not.

John D Miller, of New Orleans, for appellant.

Paul A. Sompayrac and Frank S. Normann, both of New Orleans, for appellees.

OPINION

WESTERFIELD, Judge.

Paul Balthazar and Elizabeth Bradley Balthazar brought separate actions, under the compensation law, against Swift & Co., defendant herein, and late employer of William Balthazar, deceased, who was accidentally killed in the course of his employment at Harvey, Louisiana, April 1, 1925. Each claim to be exclusively entitled to compensation, one as the father and the other as the wife of the deceased. The cases were consolidated for convenient disposition below and were so considered on appeal.

The father's claim is based upon subsection 2 of Section 8 of the Compensation Act, Act No. 20 of 1914, as amended by Act No. 216 of 1924, p. 400. In the language of the Act he has a claim, if dependent, only when and 'if there be neither widow, widower nor child'. The argument is that the wife is not entitled to compensation because she did not live with nor was she dependent upon her husband at the time of his death and that therefore there being no wife entitled to compensation there is, in the intendment of the law, no wife. Opposed to this contention is the view that the law in saying 'no wife' means what it says and not as suggested 'no wife entitled to compensation' as counsel would have it. But before considering this point, we must first determine whether the wife is entitled to compensation. A wife is entitled to compensation only when living with, or dependent upon her husband for support at the time of his injury or death. 'No compensation shall be payable under this section (Sec. 8 subsection 1) to a widow unless she be living with her deceased husband at the time of the injury and death, or be then actually dependent upon him for support.'

Elizabeth Bradley or 'Lizzie' as she is frequently styled in the testimony, married the late William Balthazar in the Parish St. Mary. Both were illiterate Negroes and in lieu of their signatures to their marriage certificate affixed their mark. William proved to be inconstant and after a short residence with his bride, left for New Orleans, where for twenty years he led a rather purposeless and aimless existence, sometimes employed and more often otherwise, but ever and always, so far as the record shows, impecunious. Shortly before his death he, for the first time, obtained steady employment, and with the defendant. His wife was not living with him at the time of his death therefore if she has any claim it must rest upon her dependency.

The case on this point rests upon the genuineness of three letters produced and filed by defendant. These letters purport to show plaintiff's dependence upon her husband, because in them he refers to sums of money as being enclosed, and breathes a spirit of love and affection out of all proportion to the circumstances.

The letters, spelling and all, are as follows:

'New Orleans la Mar 15 1925 'Mrs. Elizabeth Balthazar dear wife to day i am ritting to let you heare from me i am well and do Hope (illegible word) reach you Loving Hands will find you (interlineation as follows: i receive your Letter well dear wife i am send you $ 3 dollars i am exPect to Be home Soon excuse my short letter i come to a Close I reame your truly husband Mr. William Balthazar Ancer Soon Harvey La'

'New orleans La Mrs. ElizaBeth Balthazar dear wife only a few lines to let you hear from me which i am at Present and do hope this will find you well i rec you Letter dear wife i am sending you $ 5 dollar in this Letter and i will Send you Some more in a few days dear wife i am Very Busy in work i Say more next time i reamine you truly Hus Band William Balthazar Send my mail to Harvey La Hopein to heare from you Soon'

'New Orleans, La dec 18 1924 'Mrs. ElizaBeth Balthazar my dear Just a few to Let you hear from i am well and do hope you are the Same dear wife i recive your Loving Letter i find me well and i was glad to heare from you But was Sorry to Know you are sick and waryin aBout me Know dear wife dont worry aBout me for i am working i Be (illegible word here) Soon im Sending you 6 dollar dont Be aneasy i will Be home Soon if the Lord Say the (illegible word) i reamain you Truly husBan Mr William Balthazar dont answer i Be home Soon excuse my Short Letter.'

Counsel for defendant denounces these letters as forgeries, and, is supported by Mr. L. C. Spencer, a handwriting expert. Mr Spencer is opposed by Mr. E. A. O'Sullivan, another handwriting expert, who asserts a contrary opinion. It is interesting to note that these gentlemen have differed in the past and that our Supreme Court has indulged in the following comment: 'Two experts were called,...