Jenkins v. Pemberton

• Decision Date: 21 May 1956
• Docket Number: No. 8480,8480
• Court: Court of Appeal of Louisiana — District of US
• Parties: Lucille L. JENKINS, Individually and on behalf of her Minor Children, Plaintiff-Appellant, v. J. O. PEMBERTON et al., Defendants-Appellees.

Page 775

87 So.2d 775

Lucille L. JENKINS, Individually and on behalf of her Minor Children, Plaintiff-Appellant, v. J. O. PEMBERTON et al., Defendants-Appellees.

No. 8480.

Court of Appeal of Louisiana, Second Circuit.

May 21, 1956.

Rehearing Denied June 14, 1956.

C. B. Prothro, Shreveport, for appellant.

Sevier, Yerger & Sevier, Tallulah, Bienvenu & Culver, New Orleans, for appellees.

AYRES, Judge.

The object of this action, instituted by Lucille L. Jenkins, individually and on behalf of her two minor children, is to annul and to have decreed null and void a certain compromise settlement of her claim and that of her two minor children for compensation alleged to have been due them because of the death of Jesse Jenkins, Sr., on November 16, 1951. Additionally, plaintiff prays that on the annulment of said proceedings, she, individually and on behalf of said minors, be awarded compensation in a lump sum, computed at $30 per week for a period of 300 weeks, plus a penalty of 50 percent thereof, with legal interest thereon, together with $250 funeral expense, less a credit of $2,750 paid in accordance with the provisions of the aforesaid settlement.

The deceased was an employee of J. O. Pemberton, a logging contractor for the Chicago Mill & Lumber Company. Pemberton, his aforesaid principal and the workmen's compensation insurance carrier, Employers Mutual Liability Insurance Company, were made defendants. While discharging duties of his employment as a truck driver, Jenkins was killed in a collision between a log truck driven by him and a freight train of the Illinois Central Railroad Company. His survivors are the above named plaintiff and two sons, Jesse Jenkins, Jr., aged 13 years, and Charley Jenkins, aged 11 years.

This is plaintiff's second appeal to this court, the first was from a judgment sustaining an exception of no cause or right of action. 65 So.2d 420. The present appeal was taken after a trial on the merits from a judgment sustaining a plea of res adjudicata.

As a basis for this suit, plaintiff alleges that no bona fide dispute existed as a prerequisite for such a voluntary compromise settlement; that she was not represented in such proceedings by an attorney of her choice but by an attorney appointed by the court, who, from belief, she alleged made no investigation of her claims either as to the facts or law; that she was induced by fraudulent misrepresentations of the adjuster of the employer's insurer to enter into said agreement and into accepting a smaller sum than she was entitled to in settlement of said claim by the agent's assertion that plaintiff was neither the legal nor putative wife of the deceased because the said deceased had been previously married and undivorced, and that said minors were illegitimate and did not live with nor constitute a part of the family or household of the said Jesse Jenkins, Sr., at the time of his death.

Plaintiff contends, however, that at the time she married the deceased she had no knowledge of his prior marriage and that after their marriage they lived together as man and wife and supported their two children, who, until seven or eight years prior to his death, lived with them at their residence, but that after they established their residence in the quarters of the Chicago Mill & Lumber Company at Tallulah, there was insufficient room for said children, on account of which they remained with their grandmother, supported, however, from their father's earnings.

Defendants denied plaintiff's charges and asserted the validity of the compromise settlement and its approval by the judgment of a competent court as constituting res adjudicata and as a bar precluding recovery herein by plaintiff. Defendants specifically contend that a bona fide dispute existed between the parties for the reason plaintiff claimed she was entitled to recover compensation as the legal wife, or, at least, the putative wife, of the deceased and the children as his legitimate children, or, in any event, as members of his family, which claims defendants denied, contending that plaintiff was not the legal nor putative wife of the deceased because she allegedly married him or lived with him with full knowledge that he had been previously married and not divorced; that the children were not the children of the deceased; that they did not reside with the deceased and plaintiff at the time of his death, were not members of his family or household, and were not supported by him; that on the submission of the proposed settlement to the court for its consideration, a qualified attorney was appointed by the court to represent plaintiff and her minor children, and that said settlement was only approved after said attorney discussed the facts and law with the plaintiff, and, further, only after having been brought before and questioned by the district judge, who approved said settlement as being fair and equitable and doing justice between the parties.

For an investigation, the insurer, soon after the death of Jesse Jenkins, Sr., referred this matter to their adjuster, Gene Love, who immediately commenced his investigation and contacted the plaintiff approximately four days following the accident, at which time he obtained a written statement from plaintiff, dated November 20, 1951, wherein she stated, among other things, that she and Jesse Jenkins, Sr., were married November 20, 1938; that neither had been previously married and that two children were born of their marriage, who were living with them at the time of her husband's death. Whereupon, it was explained that it would be necessary to make an investigation of the facts relative to the accident and death of her husband, as well as to her dependency upon the deceased and that of the two children. Request was made of plaintiff for a copy of her marriage license and birth certificates of the children. These documents were not furnished by plaintiff and their existence could not be determined by Love in his investigation. In the course of his invesigation, however, Love found that the children were not living with plaintiff and the decedent at the time of his death nor had they lived with them during the course of several years that plaintiff and decedent lived at Tallulah. While making a search of the public records for a record of the marriage of plaintiff and decedent, the adjuster found a record of the marriage of Jesse Jenkins to Ethel Mercy on December 19, 1936. A further search revealed no divorce between them.

The information thus obtained being clearly contradictory to plaintiff's statement of November 20, 1951, the adjuster again contacted plaintiff on December 7, 1951, at which time she made another statement wherein she admitted that she and Jesse Jenkins, Sr., were not living together or married when Jesse Jenkins, Jr., was conceived; that before they were married she knew that Jesse had been married to Ethel Mercy and that she did not know at the time of their marriage whether a divorce between them was obtained or not. By this second statement, it would be most difficult to believe that plaintiff did not know that Jesse Jenkins, Sr., had been married to Ethel Mercy. The position taken by plaintiff was that she had no knowledge that Jesse Jenkins and Ethel Mercy were married, saying that she was told of the marriage by the investigator, after which she admitted that she knew nothing of a divorce between those parties.

That Jesse Jenkins and Ethel Mercy were married was established by the marriage record filed in evidence. Moreover, Ethel Mercy testified they were married; that plaintiff was aware of that fact, and that Jesse Jenkins, as well as the plaintiff, discussed with her the intention of their marriage for the purpose of ascertaining whether or not she, Ethel Mercy, objected.

The adjuster learned by interviewing Pemberton, Jenkins' Employer, that no children lived with the deceased and Lucille during the years that he was employed as a truck driver.

Additionally, the record reflects that the attorney appointed by the court to represent plaintiff and her minor children in connection with the compromise agreement and settlement, after accepting said approintment, very carefully reviewed the documents of the adjuster's file pertaining to this matter. He discussed the facts and the law at length with plaintiff, after which they returned to the judge's office, whereupon another discussion took place, when, at first, plaintiff denied that she had knowledge previous to her marriage that her husband was married to Ethel Mercy, but later admitted the same in much the same manner as was done in the two statements signed by her.

The court has before it primarily one issue for determination, that is, whether the voluntary compensation settlement entered into by plaintiff, individually and on behalf of her minor children, was founded on a bona fide dispute at the time of the settlement and whether fraud or misrepresentation was practiced by the employers or their insurer. We are not, therefore, particularly concerned with whether plaintiff, Lucille L. Jenkins, was either a legal or putative wife of the deceased, Jesse Jenkins, Sr., and as such, in either capacity, entitled to compensation under the Act, nor whether the two children were members of his household, but, rather, we are concerned with the facts of this case as existed at the time the settlement was agreed upon and the compromise effected. Our concern is whether or not such facts showed the existence of a bona fide dispute and whether or not fraud or misrepresentation was practiced on her by the employers or their insurer.

The trial court concluded from the record that it was established that a marriage was celebrated between Lucille L. Jenkins, plaintiff, and Jesse Jenkins, Sr., the deceased, notwithstanding no marriage license was presented and no issuance or recordation thereof was shown. Such marriage is shown by the testimony of persons who...