Miles v. City-Parish Government of East Baton Rouge Parish, CITY-PARISH

• Decision Date: 27 January 1969
• Docket Number: No. 7557,CITY-PARISH,7557
• Citation: 219 So.2d 320
• Parties: Myrtle Dyson MILES, Plaintiff-Appellant, v.GOVERNMENT OF EAST BATON ROUGE PARISH et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 320

219 So.2d 320

Myrtle Dyson MILES, Plaintiff-Appellant, v. CITY-PARISH GOVERNMENT OF EAST BATON ROUGE PARISH et al.,

Defendants-Appellees.

No. 7557

Court of Appeal of Louisiana, First Circuit.

Jan. 27, 1969.

Anthony J. Clesi, Jr., Baton Rouge, for Alton T. Moran.

R. Gordon Kean, Jr., and Charles E. Pilcher, Baton Rouge, for the city of Baton Rouge and Parish of East Baton Rouge.

Calvin E. Hardin, Jr., of Durrett, Hardin, Hunter, Dameron & Fritchie, Baton Rouge, for William Louis Albritton.

Martin Schroeder, Jr., of McGehee & McKinnis, Baton Rouge, for C. Robert Carter.

Before LANDRY, REID and SARTAIN, JJ.

SARTAIN, Judge.

The petitioner in this cause is the mother of two children, Kathy Marie Richard, age 9, and Rufus O'Neal Richard, age 5, who died as a result of drowning in the Northdale Canal located near the 1400 block of Boyd Avenue in the City of Baton Rouge. She instituted this action against the City-Parish Government, C. Robert Carter and William Louis Albritton. Mr. Carter and Mr. Albritton are alleged to be owners of property abutting and forming a part of the canal. It is alleged that the defendants were negligent in their failure to provide safeguards against persons falling into the canal thereby permitting a hazardous condition to exist.

The original petition did not contain any facts concerning the father of the deceased children.

Defendants first filed dilatory exceptions contending that the father of the children was an indispensable party to the action. C.C. Art. 2315. Plaintiff responded to the exceptions by amending her original petition and admitting that the children were 'not born of a lawfully consummated marriage, but were reared, supported and in other ways informally acknowledged by petitioner as her natural children. Thereafter defendants filed peremptory exceptions alleging that plaintiff's petition discloses no cause or right of action on the grounds that plaintiff is not the lawful mother of the children. The City-Parish Government also interposed an additional peremptory exception founded on governmental immunity.

The trial judge rendered judgment sustaining the peremptory exceptions of all three defendants on the grounds that our law does not provide for a cause or right of action by a natural parent for the wrongful death of illegitimate children. C.C. Art. 2315. Plaintiff now appeals from this judgment which dismissed her suit.

C.C. Art. 2315 provides a right of action in the case of wrongful death to the 'surviving father and mother's or 'either of them'. At the time the district court sustained defendants' peremptory exceptions of no right of action it was the well established law of Louisiana that this article pertained only to a lawful parent thus eliminating any right of action on the part of natural parents for the wrongful death of their illegitimate offspring. Scott v. LaFontaine, 148 So.2d 780 (4th La.App., 1962, rehearing and writs denied); Cheeks v. Fidelity & Casualty Co. of New York, 87 So.2d 377 and Lynch v. Knoop, 118 La. 611, 43 So. 252, 8 L.R.A.,N.S., 480.

This long standing and settled rule has now been annulled, set aside and reversed by the United States Supreme Court in Glona v. American Guarantee and Liability Insurance Co., et al., 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed. 441, rehearing denied 393 U.S. 898, 89 S.Ct. 66, 21 L.Ed.2d 185, reversing 5 Cir., 379 F.2d 545.

In the Glona case an action was brought under Louisiana law in the ...