Olivier v. Daniel Jeffrey & Sons, Inc.

• Decision Date: 30 June 1936
• Docket Number: 1615
• Citation: 169 So. 247
• Parties: OLIVIER v. DANIEL JEFFREY & SONS, Inc., et al
• Court: Court of Appeal of Louisiana — District of US

169 So. 247

OLIVIER v. DANIEL JEFFREY & SONS, Inc., et al

No. 1615

Court of Appeal of Louisiana, First Circuit.

June 30, 1936

Rehearing denied July 20, 1936. Writ of error refused Oct. 6 1936.

Walter J. Burke and Lawrence Simon, both of New Iberia, for appellants.

E. J Beaullieu, of Jeanerette, and O. J. Mestayer, of New Iberia for appellee.

OPINION

Le BLANC, Judge.

This is a suit for compensation brought by the widow of Amedee Olivier, for herself and two dependent children. She alleges that her husband died as a result of heart failure which was superinduced by septic infection which had its origin in a severe burn sustained by him on his left foot and leg when he accidently stepped into a hole of hot water on November 26, 1934, while he was engaged by the defendant Jeffrey & Sons, Inc., at their syrup factory in the town of Jeanerette in the parish of Iberia. She claims compensation at the rate of $ 12.80 per week not to exceed 300 weeks, less 24 weeks which had been paid to her between the time of the alleged accident and her deceased husband's death on June 12, 1935. In addition, she claims the sum of $ 137 for funeral and burial expenses. Her suit is directed against her late husband's employer and the Employer's Liability Assurance Corporation of London, England, which carried the employer's compensation insurance.

Plaintiff alleges that she has two children, issue of her marriage with her deceased husband, who although of the full age of majority, are physically deformed and crippled to such an extent that they must be fed as they cannot use their hands for any purpose, nor walk, and that they are of immature minds. Due to their said infirmities, she alleges that during their whole life they depended entirely on the earnings of their father for the necessities of life and, as dependents now, are entitled to receive compensation, and that the whole amount due them as well as her should be paid entirely to her as surviving widow for the common benefit of all.

Defendants filed exceptions of no cause of action and of no right of action which were overruled by the district judge, after which the case went to trial on the merits resulting in a judgment in favor of the plaintiff as prayed for, and defendants appealed.

In this court, the exception of no right of action is again vigorously urged by the defendants. That of no cause of action has apparently been abandoned.

The exception of no right of action is based on the want of capacity of the plaintiff to institute this suit on behalf of her two major children who are alleged to be mentally incompetents, the contention being that they can only be represented in court through a duly appointed curator.

There is indeed much merit in the exception, and were the suit an ordinary proceeding instead of one that is regulated by special statute, there can be no doubt but that it would have to be sustained.

Defendants rely on the provisions of the Civil Code and the Code of Practice and also on a provision of the very statute under which this suit is brought, to sustain their contentions. Of course, as just stated, in an ordinary proceedings, the provisions of the two Codes regarding the bringing of suits on behalf of persons mentally incompetent would have to prevail. The provision of the workmen's compensation statute to which we have reference is found in section 16, subsection 1, of Act No. 20 of 1914, as amended by Act No. 38 of 1918, which reads as follows:

"That in case an injured employee is mentally incompetent or a minor or where death results from the injury, in case any dependent as herein defined is mentally incompetent or a minor, at the time when any right, privilege or election accrues to him under this act, his duly qualified curator or tutor, as the case may be, may, in his behalf, claim and exercise such right, privilege or election, and no limitation of time, in this act provided for, shall run, so long as such incompetent or minor has no curator or tutor as the case may be."

It is our opinion that the purpose of that provision is distinctly to regulate the matter of prescription as regards the rights of minors and mentally incompetents in claims arising under the statute, and is not aimed at regulating the manner in which the proceeding is to be instituted on their behalf. It is noted that it is not made mandatory that the curator or the tutor, as the case may be, claim the right in behalf of the incompetent or minor, but that such curator or tutor may exercise the right and it is from such time only as such right is exercised by the curator or tutor, that prescription begins to run against the incompetent or minor. (Italics ours.) That provision of the statute received a full and careful consideration at the hands of the Court of Appeal, Second Circuit, in the case of Gospel v. Southern Carbon Co., 4 La.App. 272, wherein it was reconciled with another provision of the act which makes the appointment of a tutor unnecessary in regulating the payment of compensation to a child or children, unless it be that there is no surviving parent. This provision is found in paragraph (j) of subsection 2 of section 8 of the statute, as amended by Act No. 43, page 74, of 1922.

It is urged that the exception provided in that section is restricted to tutors of minors and cannot be extended by analogy to curators of incompetents. It is true that reference is made particularly to tutors, but that section of the law, as we understand it, is to regulate the payment of compensation in cases where there is a surviving widow or widower and a child or children and it specifically provides that such payment shall be made "entirely to the widow or widower for the common benefit of such widow or widower and the child or children."

In defining the terms "child" and "children" as used in the act, paragraph (m) of the same subsection makes no distinction between those who are minors and those who are of the age of majority. It seems to us therefore in prescribing that payment, in a case where there is a surviving widow or widower and a child or children, shall be made entirely to the surviving spouse for...