Dangerfield v. Indem. Ins. Co. of North America

• Court: Louisiana Supreme Court
• Citation: Dangerfield v. Indem. Ins. Co. of North America, 24 So.2d 375, 209 La. 195 (La. 1945)
• Decision Date: 10 December 1945
• Docket Number: 37770.
• Parties: DANGERFIELD v. INDEMNITY INS. CO. OF NORTH AMERICA. In re DANGERFIELD.

24 So.2d 375

209 La. 195

DANGERFIELD v. INDEMNITY INS. CO. OF NORTH AMERICA.

In re DANGERFIELD.

No. 37770.

Supreme Court of Louisiana

December 10, 1945

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

Durrett & Hardin, of Baton Rouge, for defendant.

HAMITER Justice.

Anderson Dangerfield, on April 6, 1943, was accidentally killed while performing his duties as an employee of the Blaw-Knox Construction Company in Baton Rouge. To recover compensation for herself and for her two unacknowledged illegitimate minor children, his widow, with whom he was living, instituted this action against the employer's insurer.

Plaintiff alleged that although her children were born out of wedlock prior to her marriage to decedent, and as issue of relationships with other men, they were decedent's legitimate stepchildren and were entirely dependent upon him for support and maintenance at the time of his death. She did not declare in her petition, however, that such children had been living with him or were members of his family. Further, it was alleged that defendant has been paying the compensation due to her individually, but that it refuses to pay the amounts due and owing to the two minor children.

The district court overruled defendant's exception of want of capacity of the plaintiff to appear or to stand in judgment for and on behalf of the minor children without having qualified as their natural tutrix. But it sustained a plea of prematurity tendered to plaintiff's individual claim, and also it sustained exceptions of no right and no cause of action directed at the demands made in behalf of the minor children. Accordingly, the entire suit was dismissed at plaintiff's costs.

On appeal to the Court of Appeal the judgment dismissing the suit was affirmed. Thereafter, the cause was brought here on a writ of certiorari or review.

Plaintiff's individual demand has been abandoned. Moreover, as is disclosed by a written agreement of counsel filed in this court, it is not now contended that compensation should be paid to the minor children on the theory that they were members of the family of decedent, the plaintiff conceding that her petition lacks appropriate allegations therefor. The agreement declares:

'Sofaras the present hearing before this Honorable Court is concerned plaintiff seeks recovery of compensation for the said two minor children, Joe Jones and Louise Jones, solely on the theory that the said two minor children were and are the stepchildren of the decedent, Anderson Dangerfield, dependent upon him for support, and as such stepchildren, entitled to compensation.'

Counsel further stipulate in writing:

'In the event it should be finally determined by this Honorable Court that the said two minor children, Joe Jones and Louise Jones are not entitled to compensation in this case on the theory that they were the step-children of decedent, Anderson Dangerfield, then plaintiff reserves the right to amend her petition, if amendment is necessary, so as to allege that the said two minor children were members of the family fo Anderson Dangerfield, and to seek to introduce proof at a trial on the merits to the effect that the two minor children were members of the family of the decedent Anderson Dangerfield, and entitled to compensation on that theory.'

Thus to be determined is the question of whether the unacknowledged illegitimate children of the wife of a deceased employee--who are neither decedent's own nor his adopted children, who are not members of his family, but who are dependent on him for support--have a right and a cause of action as stepchildren for compensation for his death.

There appears to be no precedent in our jurisprudence for deciding the stated issue. The very recent case of Thompson v. Vestal Lumber & Manufacturing Co., 208 La. 83, 22 So.2d 842, is not decisive of it. The basis of that decision is the member-of-the-family doctrine, which is not applicable here, the court recognizing therein the right of unacknowledged illegitimate children of a deceased employee to recovery compensation for his death on the theory that they were residing with him and were dependent on his earnings for support and, therefore, were members of his family. In the course of the opinion a distinction was shown between that (Thompson) case and Barranco v. Davis, 175 La. 35, 142 So. 844, in the letter of which the claim for compensation of two illegitimate children was rejected on the ground that they were not legally acknowledged by their father (the deceased employee), the court pointing out that [208 La. 8o, 22 So.2d 856]:

'* * * The plaintiff (in the Barranco case) did not, either in her pleadings or in her briefs, in the district court, or in the court of appeal, or in the supreme court, contend that the children were living with the father as members of his family, dependent upon his earnings for support, at the time of the accident. * * * This court did not consider for one moment the question whether the two unacknowledged illegitimate children might have been entitled to compensation as dependent members of the family of the deceased employee. It cannot be said that the court passed upon the question whether an unacknowledged illegitimate child may claim compensation successfully as a dependent member of the family of the deceased employee, when that question was never considered by the court or presented for decision. We must assume, from the fact that the tutrix did not claim compensation for her children as dependent members of the family of the deceased employee, that they were not in fact dependent members of his family at the time of the accident and death.' (Parenthesis ours).

Our Employers' Liability Statute (Act 20 of 1914, as amended by Act 242 of 1928), in subsection 2 of section 8 thereof, lists certain persons who are conclusively presumed to be wholly and actually dependent upon the deceased employee, among these being children under the age of 18 years with whom decedent was living at the time of his injury. This conclusive presumption of dependency could not apply to the unacknowledged illegitimate children in the instant case, because, if for no other reason, they did not live with decedent at the time of his injury.

Continuing the statute, in the mentioned subjection, recites: 'In all other cases, the question of legal and actual dependency in whole or in part, shall be determined in accordance with the facts as they may be at the time of the accident and death * * *. No person shall be considered a dependent, unless he is 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...