Murphy v. Houma Well Service, 26902 Summary Calendar.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: JOHN R. BROWN, , and THORNBERRY and MORGAN, Circuit
• Citation: 413 F.2d 509
• Parties: Patricia Lebouef MURPHY, as administrarix of the Estate of Edward Fontenot, deceased, Etc., Plaintiff-Appellee, v. HOUMA WELL SERVICE et al., Defendants, v. Eva C. FONTENOT, Intervenor-Appellant.
• Docket Number: No. 26902 Summary Calendar.,26902 Summary Calendar.
• Decision Date: 18 June 1969

413 F.2d 509 (1969)

Patricia Lebouef MURPHY, as administrarix of the Estate of Edward Fontenot, deceased, Etc., Plaintiff-Appellee,
v.
HOUMA WELL SERVICE et al., Defendants,
v.
Eva C. FONTENOT, Intervenor-Appellant.

No. 26902 Summary Calendar.

United States Court of Appeals Fifth Circuit.

June 18, 1969.

Daniel J. McGee, Mamou, La., Preston N. Aucoin, Ville Platte, La., for appellant.

Patrick A. Juneau, Jr., Lafayette, La., Isom J. Guillory, Jr., Aaron Frank McGee, Guillory, Guillory & Guillory, Eunice, La., for appellee.

Before JOHN R. BROWN, Chief Judge, and THORNBERRY and MORGAN, Circuit Judges.

ON PETITION FOR REHEARING

JOHN R. BROWN, Chief Judge:

By petition for rehearing, Intervenor-Appellant, Mrs. Eva C. Fontenot, seeks reconsideration of our original decision (a) that the Federal Court should look to state law in determining who is a "child" for purposes of the Jones Act, and (b) that the minor child involved was a "child" of the decedent under Louisiana law and therefore the sole statutory beneficiary in this Jones Act

413 F.2d 510

claim.¹ Despite counsel's vigorous attack on these points, we adhere to our original position.²

After losing on the original merits, counsel contends on this petition for rehearing that the presumption of legitimacy, as here applied, is violative of the due process and equal protection clauses of the Fourteenth Amendment. Having carefully considered this argument, we find it to be without merit and reaffirm our earlier holding.

As background for discussion of the constitutional question urged, portions of our original opinion bear repeating:

"Since state law is determinative, the question now becomes the status of the minor child under Louisiana law. Under the Louisiana Civil Code, the husband of the mother is presumed to be the father of all children conceived by her during the marriage. La.Civ.Code Art. 184. The Louisiana Supreme Court has described this presumption as the `strongest presumption known in the law\'. Feazel v. Feazel, 1952, 222 La. 113, 62 So.2d 119. Therefore, Romona Gail is presumed to be the lawful child of Edward Fontenot in spite of all the asserted physical evidence to the contrary.

As the presumption of legitimacy is clearly applicable here, we come, then, to the question of determining its conclusiveness on the parties before the Court. The Civil Code provides generally that in cases in which the presumption is subject to attack, the presumed father, if he intends to dispute legitimacy, must institute an action to disavow paternity (en desaveu) within a prescribed period after the child is born or after he discovers its existence.20 Likewise, if the husband dies without having disputed legitimacy, his heirs are given a short time to make objection to the status of the child.21 In the instant case, however, neither Edward Fontenot nor his mother resorted to the procedure afforded by statute.

20. Art. 191. Time limit for disavowal by husband

Art. 191. In all the cases above enumerated, where the presumption of paternity ceases, the father, if he intends to dispute the legitimacy of the child, must do it within one month, if he be in the place where the child is born, or within two months after his return, if he be absent at that time, or within two months after the discovery of the fraud, if the birth of the child was concealed from him, or he shall be barred from making any objection to the legitimacy of such child.

21. Art. 192. Time limit for disavowal by heirs of husband

Art. 192. If the husband die without having made such objection, but before the expiration of the time directed by law, two months shall be granted to his heirs to contest the legitimacy of the child, to be counted from the time when the said child has taken possession of the estate of the husband, or when the heirs shall have been disturbed by child, in their possession thereof.

Throughout a long line of decisions the Louisiana Courts have applied these statutory provisions stringently. It is now beyond dispute that if the husband fails to bring a statutory action to disavow, the right to challenge the legitimacy of the children born during marriage becomes extinct. E. g., Evans v. Roberson, 1933, 176 La. 280, 145 So. 539. Likewise, a Louisiana Court of Appeal has stated, `* * * as against

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