Dangerfield v. Indem. Ins. Co.

• Court: Court of Appeal of Louisiana
• Citation: Dangerfield v. Indem. Ins. Co., 19 So.2d 598 (La. App. 1944)
• Decision Date: 09 November 1944
• Docket Number: 2662.
• Parties: DANGERFIELD v. INDEMNITY INS. CO.

19 So.2d 598

DANGERFIELD v. INDEMNITY INS. CO.

No. 2662.

Court of Appeals of Louisiana, First Circuit

November 9, 1944

Rehearing Denied Dec. 13, 1944.

Writ of Error Granted Jan. 15, 1945.

Parker Seale & Kelton, of Baton Rouge, for appellant.

Durrett & Hardin, of Baton Rouge, for appellee.

OTT, Judge.

Plaintiff brought this suit to recover compensation in the sum of $6000 representing compensation in weekly payments of $20 for 300 weeks in her own behalf and on behalf of her two illegitimate minor children, less the amount already paid. She alleges that her husband, Anderson Dangerfield, was killed on April 6, 1943, while working for Blaw-Knox Construction Company in Baton Rouge; that the defendant carried the compensation insurance for said employer, and has been paying her compensation at the rate of $14.58 per week since the accident, being 32 1/2 per cent of his weekly wage at the time of the accident, but defendant refuses to pay the full compensation of $20 per week for herself and her two minor children to which she and they are entitled on the basis of 65% of his weekly wage. She alleges that her two minor children were born before her marriage to her deceased husband; that the deceased was not their father but each of them was born out of wedlock from different fathers, but she alleges that they are the legitimate stepchildren of the deceased, and under the definition of 'child' or 'children' given in Section 8, subsection 2(H), of the Compensation Law, Act No. 20 of 1914, as amended, Act No 242 of 1928, p. 360, these minors are dependents of the deceased and entitled to recover compensation under said subsection, paragraphs (D) and (E).

The defendant filed an exception of want of capacity in plaintiff to represent the two illegitimate minors for the reason that she was not appointed or qualified as their tutrix. This exception was overruled. The defendant also filed an exception of no cause or right of action insofar as plaintiff sought to recover compensation on behalf of said two minors. Also exception of prematurity and no cause or right of action as to plaintiff's claim on her own behalf of the reason that she was being paid the full amount of compensation to which she is entitled under the law. The court sustained the exception of no cause and no right of action as to plaintiff's claim on behalf of her two minor children, and also sustained the plea of prematurity as to her individual claim, and accordingly dismissed the suit.

Plaintiff appealed, and the defendant answered the appeal asking that the judgment be affirmed; or, in the alternative, that the judgment be amended by sustaining the exception of lack of capacity on the part of plaintiff to represent the minors without qualifying as their tutrix, and by sustaining the exception of no cause and no right of action on the part of plaintiff as to her individual claim.

It seems to be conceded that the exception of prematurity or the exception of no cause or right of action on the part of plaintiff to prosecute the suit in her own behalf was properly sustained as she is being paid all the compensation to which she is entitled as surviving widow. It is immaterial whether this exception should have been designated as one of prematurity or one of no cause and right of action, insofar as this suit is concerned as the result is the same.

The principal questions presented in the case are those raised in the exception of lack of capacity on the part of plaintiff to represent the two minors without qualifying as their natural tutrix, and the exception of no cause or right of action involving the right of these two minors to collect compensation on account of the death of deceased. Obviously if they have no such right there is no occasion to pass on the other exception.

Subsection 1 of Section 8 of the Compensation Law, Act No. 20 of 1914, as amended from time to time, fixes the amount of compensation an injured employe is entitled to recover for an injury received in the course of his employment, and subsection 2 of this section designates the dependents of the employe who are entitled to compensation in case of his death within one year after the accident, and fixes the amount of this compensation and prescribes the conditions under which it is to be paid and terminated. The subsection provides that the dependent shall be a legal dependent of the deceased employe, and must be wholly or partially dependent on the deceased employ at the time of the accident and death. Certain persons are presumed to be dependent on the deceased employe without any proof to that effect, including a...