Farley v. Ryan Stevedoring Co.

• Decision Date: 11 January 1960
• Docket Number: No. 44501,44501
• Citation: 117 So.2d 587,238 La. 1048
• Parties: Frances FOURCADE, Widow of Patrick Philip FARLEY v. RYAN STEVEDORING CO., Inc. and American Mutual Liability Insurance Co.
• Court: Louisiana Supreme Court

Page 587

117 So.2d 587

238 La. 1048

Frances FOURCADE, Widow of Patrick Philip FARLEY v. RYAN STEVEDORING CO., Inc. and American Mutual Liability Insurance Co.

No. 44501.

Supreme Court of Louisiana.

Jan. 11, 1960.

Rehearing Denied Feb. 15, 1960.

Reed, Reed, Reed & Garvey, New Orleans, for relator.

Alfred C. Kammer; Chaffe, McCall, Phillips, Burke & Hopkins, New Orleans, for defendants.

HAMLIN, Justice.

In the exercise of our supervisory control (Article VII, Section 11, Louisiana Constitution of 1921, LSA), we granted a writ of review from a judgment of the Court of Appeal, ¹ Parish of Orleans, affirming a judgment of the Civil District Court for the Parish of Orleans denying plaintiff, Widow of Patrick Philip Farley, Workmen's Compensation benefits and dismissing her suit for such.

Our law and jurisprudence, LSA-R.S. 23:1231, 23:1254--55; Haynes v. Loffland Bros. Co., La.App., 34 So.2d 30; 215 La. 280, 40 So.2d 243; Moy v. Schuylkill Products, 209 La. 782, 25 So.2d 542; Hudson v. Central Culvert Corp., La.App., 108 So.2d 253, clearly set forth that a surviving wife separated from her husband by a judicial separation a mensa et thoro is entitled to benefits under the Workmen's Compensation Act (Act 20 of 1914, as amended, LSA-R.S. 23:1021 et seq.) for the death of her husband suffered during the course of his employment, if she was dependent upon him for support from his earnings and was receiving such support at the time of his death. Presented for our determination herein is the question of fact of whether plaintiff, separated from Patrick Philip Farley by a judgment of separation a mensa et thoro, was dependent upon him for support from his earnings and was actually receiving $15 per week from him at the time of his fatal injury suffered during the course of his employment by Ryan Stevedoring Company, Inc.

The evidence of record discloses that on May 23, 1949, the Juvenile Court for the Parish of Orleans awarded Frances Farley alimony in the sum of $15 per week for the support of herself and a minor child (Claire Rita Farley). At that time, Patrick Farley had departed from the matrimonial domicile and was occupying quarters in an outhouse located on the premises. During October, 1950, Mrs. Farley was granted a legal separation from her husband and awarded the care and custody of her minor child. The right to demand alimony for herself and her minor child was reserved in the judgment. No proceedings were ever taken to obtain such relief. In 1951, Mr. Farley moved from the grounds of the marital domicile. He left the occupancy of the main house and grounds--this community property located on Lizardi Street being allegedly tax exempt--to Mrs. Farley, demanding no rent from her. Shortly thereafter he took up residence with his sister, Mrs. Elizabeth F. Hughes, [238 La. 1053] at 1420 North Robertson Street. He was fatally injured on August 11, 1956 and died on the following day, August 12, 1956.

Alleging that plaintiff and the deceased were husband and wife prior to and at the time of the accident, Frances Farley filed suit against Ryan Stevedoring Co., Inc. and its insurer, praying for compensation at the rate of $35 per week for 400 weeks. Defendants denied that plaintiff was dependent upon the earnings of the deceased for her support and prayed for the judgments of dismissal rendered in their favor. ²

In support of her claim, plaintiff acknowledged that she bore the burden of proof, Kilman v. Smith, La.App., 28 So.2d 499, and presented witnesses whose testimony in her behalf was to the effect that she was dependent upon the deceased and that the deceased had given her $15 weekly for her support.

Jay Prejean, a son-in-law of Mrs. Farley who earned $76 per week, testified that he, his wife (a daughter of plaintiff and the deceased), and four children, lived rent-free with Mrs. Farley and had commenced such abode about one year prior to Mr. Farley's death. He stated that he had made additions, which cost over $2000, to the house. With respect to Mrs. Farley's income, his testimony is as follows:

(Direct examination)

'Q. * * * did Mrs. Farley have any source of income? A. Yes sir.

'Q. What was her source of income? A. Mr. Farley gave her $15.00 a week, and that's the only source of income she had at the time.

'Q. I see. Did you ever give Mrs. Farley any money during that time? A. No. I couldn't afford it. I had four children at the time.

'Q. Did she have any other source of income, other than the $15.00 a week, Mr. Farley gave her? A. Not to my knowledge, sir.

'Q. Were you ever present when Mr. Farley gave her $15.00? A. Well, I was there a couple of times, I mean, but if I was working, I mean, if I came in late * * *'

(Cross-examination)

'Q. How often did you see Mr. Farley come there? A. Well I didn't see him very often.

'Q. How often? A. Probably a couple of times, I would get home a little early and I would see--I would say probably twice I got home a little early.

'Q. Was that the time--or, on those two occasions, did you see him give Mrs. Farley $15.00? A. Yes sir.

'Q. Did you see him give her the money? A. Yes sir.

'Q. Did you see him count it to her? A. No, he just handed her the money.

'Q. How did you know it was $15.00? A. Because I saw it after he left. I saw her with the $15.00.

'Q. She showed it to you after he left? A. Yes sir. She didn't exactly show it to me, but she said she got her $15.00.'

With respect to the operation of the household, Mr. Prejean testified that his wife bought groceries and Mrs. Farley bought groceries, there being no community fund; that he and his family and Mrs. Farley ate together. He also said that he paid the gas and electric bill.

Mrs. Isabel Prejean testified:

(Direct examination)

'Q. * * * did your mother work during that time? A. No sir.

'Q. What was her source of income, do you know? A. Just what my daddy brought her.

'Q. Did your daddy come and bring her money regularly? A. Yes sir.

'Q. How regularly? A. Every week.

'Q. Did he come on any special day? A. Around the first of the week.

'Q. And do you know how much money he gave your mother? A. Fifteen dollars.

'Q. Were you ever present when he gave her $15.00? A. Yes, I was.

'Q. Did anybody else contribute any money to the support of your mother? A. No.

'Q. In other words, as far as you know, the $15.00 she got from your father was all the money she received? Is that correct? A. That's it.

'Q. You didn't give her any money at all? A. No.

'Q. Did your husband give her any money? A. No sir.

'Q. Did your sister give her any money? A. No sir.'

(Cross-examination)

'Q. Did he (Mr. Farley) say anything to your mother when he gave her the fifteen dollars? A. No sir.

'Q. Would they talk about anything? A. No sir.

'Q. He just came in, handed her $15.00 and went on about his business? A. He didn't come in, because he didn't like us. He was mad with us.

'Q. And no words were exchanged? Did you go to the door with your mother? A. Once in a while, I would take the money.

'Q. In the whole year, previous to your father's death, how often did he give the money to you? A. About two or three times.'

Mrs. Prejean corroborated the testimony of her husband. She said that a common household existed, there being no records kept of purchases for food. She stated that her mother spent the $15 weekly contribution from Mr. Farley for food, clothing and entertainment.

Claire Rita Farley, a minor in 1949, testified that at the time her father died she was working for the Southern Bell Telephone and Telegraph Company and earning a gross salary of between $45 and $47 per week, her take home pay being approximately $60 every two weeks. She said that she lived with her mother and the Prejeans, and that her only contribution to the household expenses was payment of the telephone bill. She stated that she frequently ate away from home, and that she spent her salary on clothes, doctor bills, and other things she needed. She emphatically testified that she contributed no money toward her mother's support, and that her mother had no source of income other than what her father was supposed to have given her.

Mrs. Farley corroborated the testimony of Mr. and Mrs. Prejean. She also corroborated the testimony of Claire Rita Farley to the effect that she (Claire Rita) made no contribution toward her mother's support. Mrs. Farley testified that she received $15 per week from her husband through the Juvenile Court up until 1951, and that after that time she consented to her husband's bringing his weekly contribution to her. She stated that except for a few weeks her husband brought her $15 weekly, and that when he handed her the money he would say that he would see her the next week; that there was no conversation other than an exchange of greetings and solicitation as to health. She said that she kept no records of how she spent the money. With respect to her condition at the time of trial, Mrs. Farley stated that she had not attended a show in two years and that she had not asked any of her children for money even though she knew they would have acceded to such a request. She said that she could not buy any clothes, and that the last time she had received any money was the week before her husband was killed. She continued to live with the Prejeans, but had no money for groceries.

Mrs. Elizabeth F. Hughes, a sister of the deceased (called by the defense), testified that her brother was living with her at the time of his death and had lived with her for approximately five years before the accident. She said that her brother was ill during 1951, but that he returned to work in 1952. When asked whether she knew if her brother contributed towards the support of his wife, Mrs. Farley, she stated:

(Direct examination)

'I don't know anything of that. No connection with that at all. I know he did send some money to the youngest girl by his oldest daughter, at times. I don't know how many times.'

Mrs. Hughes stated that she did not know...