Patin v. T. L. James & Co.

• Court: Louisiana Supreme Court
• Writing for the Court: HAMITER; LE BLANC
• Citation: Patin v. T. L. James & Co., 51 So.2d 586, 218 La. 949 (La. 1951)
• Decision Date: 12 February 1951
• Docket Number: Nos. 39708,39730,s. 39708
• Parties: PATIN v. T. L. JAMES & CO., Inc. et al.

Page 586

51 So.2d 586

218 La. 949

PATIN v. T. L. JAMES & CO., Inc. et al.

Nos. 39708, 39730.

Supreme Court of Louisiana.

Feb. 12, 1951.

Rehearing Denied March 19, 1951.

Ashton L. Stewart, Baton Rouge, for plaintiff-applicant.

Huckabay, Seale & Kelton and Relph M. Kelton, all of Baton Rouge, for defendants-respondents.

HAMITER, Justice.

In this cause, involving two claims for Workmen's Compensation growing out of the death of one Joe Johnson, we issued the writ of certiorari to the Court of Appeal, First Circuit, in order that its decision might be reviewed.

From the record we find that on June 17, 1948, the said Joe Johnson was killed while engaged in the course and scope of his employment as a common laborer with T. L. James & Company, Inc., his wages (regular plus averaged overtime) then and for several months previously having been $49.57 per week.

Members of his household when the accident and death occurred were Mary Patin, reputedly his wife but to whom he was not married, and Raymond Patin, Mary's minor nephew who was born of the marriage of Horace Patin and Angie Lee Williams. Surviving decedent also, but not living in his home, was his mother, Sophie Braud Johnson, towards whose support he had made some contributions.

Horace Patin, as natural tutor, instituted the suit for and on behalf of his minor son, Raymond Patin, demanding compensation of $20 per week for a period not exceeding 300 weeks from the mentioned employer and its compensation insurer, the National Surety Corporation of New York. In due course Sophie Braud Johnson intervened, claiming compensation as decedent's dependent mother.

The district court, after a trial of the merits, rejected the demands of plaintiff, Horace Patin, made on behalf of the minor, Raymond Patin. However, it awarded to intervenor as a partially dependent mother compensation of $3 per week for a period not exceeding 300 weeks, this minimum rate which the statute stipulates having been decided upon because of the absence of proof of definite or regular amounts contributed to her by decedent.

The Court of Appeal, following its consideration of the case, affirmed the judgment insofar as it granted compensation to intervenor. But, contrary to the holding of the trial court, it condemned defendants to pay also to plaintiff, as tutor for the minor Raymond Patin, compensation in the sum of $3 per week for a period not exceeding 300 weeks. See 42 So.2d 304 and 43 So.2d 58.

Plaintiff and the defendants applied for the writ of certiorari, and on the showings made in both applications we issued it. Intervenor sought no review of the Court of Appeal's decision.

Defendants, in this court, do not complain of the award made to intervenor as decedent's partially dependent mother. Rather, they rely on that award in resisting the demand of plaintiff. They urge that the Court of Appeal erred in allowing compensation in behalf of Raymond Patin, because 1. he was not a child of decedent nor a member of the latter's family and, alternatively, 2. (quoting from the brief of defense counsel) 'the claim of a dependent parent of a deceased employee who is entitled to compensation, forecloses or precludes the claim of a member of the deceased employee's family under the Louisiana Workmen's Compensation Act (Act 20 of the Legislature for the State of Louisiana, for the year 1914, as amended [LSA-RS 23:1021 et seq.]).'

The position of plaintiff, on the other hand, is merely that Raymond Patin was a wholly dependent member of the deceased employee's family, entitled as such to the maximum compensation prescribed by the statute as it existed when the death occurred (June 17, 1948), or $20 per week for a period not exceeding 300 weeks.

It is apparent, therefore, that the primary questions to be determined here are whether Raymond Patin is entitled to compensation and, if so, the amount thereof.

Admittedly such minor was not an offspring of the deceased employee. He was born of the marriage of Angie Lee Williams and Horace Patin, a brother of decedent's concubine, Mary Patin. The evidence preponderately shows, however, that at the time of the death of Joe Johnson and continuously for almost twelve years prior thereto he lived in the household maintained by such decedent and Mary Patin as their adoptive child, he, at a tender age, having been turned over to them by his mother for rearing. It is true that during that period Horace Patin occasionally gave trivial sums to his son on irregular visits to him and, some five years preceding Joe Johnson's death, caused to be made in his favor a United States Army allotment of $25 per month which endured for only five and one-half months. Also, Mary Patin at times performed odd jobs such as sewing and washing, the small remuneration from which went to care for household expenses and benefitted the minor indirectly and slightly. But his food, clothing and other required necessities of life were supplied principally, almost entirely, from the earnings of the deceased employee; and, as a result, it must be concluded that he was wholly dependent on decedent for support at the time of the latter's death within the contemplation of the statute. Furthermore, by virtue of that dependency and his living as a member of the family of decedent, although unrelated by blood, the minor is entitled to receive compensation as a total dependent unless, as counsel for defendants contend under their second defense, the proved and recognized claim of decedent's partially dependent mother forecloses or precludes such minor's rights thereto. See Archibald et al. v. Employers' Liability Assurance Corporation, Ltd., et al., 202 La. 89, 11 So.2d 492 and Thompson v. Vestal Lumber & Manufacturing Company, 208 La. 83, 22 So.2d 842.

In offering this second defense counsel direct attention to Section 8, paragraph 2, sub-section (E), Act 20 of 1914, as last amended by Act 242 of 1928, LSA-RS 23:1232, the provisions of which are:

'(E) Payment to such dependents shall be computed and divided among them on the following basis.

'1. If the widow or widower alone, thirty-two and one-half per centum of wages.

'2. If widow or widower and one child, forty-six and one-quarter per centum of wages.

'3. If widow or widower and two or more children, sixty-five per centum of wages.

'4. If one child alone, thirty-two and one-half per centum of wages of deceased.

'5. If two children, forty-six and one-quarter per centum of wages.

'6. If three or more children, sixty-five per centum of wages.

'7. If there be neither widow, widower, nor child, then to the father or mother, thirty-two and one-half per centum of wages of the deceased. If there be both father and mother, sixty-five per centum of wages.

'8. If there be neither widow, widower nor child, nor dependent parent entitled to compensation, then to one brother or sister, thirty-two and one-half per centum of wages of deceased, with eleven per centum additional for each brother or sister in excess of one. If other dependents than those enumerated, thirty-two and one-half per centum of wages for one and eleven per centum additional for each such dependent in excess of one, subject to a maximum of sixty-five per centum of wages for all, regardless of the number of dependents.'

Then counsel argue that such provisions grant a right of action in behalf of members of the family of the deceased employee who are unrelated by blood to him, designated in the statute as 'other dependents', if there exists neither widow, widower nor child nor dependent parent, entitled to compensation; and that the minor Raymond Patin, who is within the group known as 'other dependents', has no such right in view of the preferred valid claim of decedent's partially dependent mother. They say, in other words, that in the above quoted schedule of payments to dependents there are established classes according to rank whereby the member or members of a superior class would preclude the rights of members of an inferior class; and that thereunder the existence of a partially dependent parent, entitled to only a small portion of the stipulated allowable compensation, prevents a reception of the statutory benefits by brothers, sisters and 'other dependents', who are in succeeding classes, even though the latter are totally dependent on the decedent.

By considering sub-section (E) alone and interpreting it literally the argument of defense counsel would seem to be sound But in determining the instant claims the statute is to be given a liberal construction and its intent and purpose ascertained. To that end the numerous other pertinent provisions touching the question of dependency must also be taken into consideration. These other provisions are likewise contained in the mentioned paragraph 2 of Section 8, LSA-RS 23:1231, 23:1251 to 23:1253, and are as follows:

'2. For injury causing death within one year after the accident there shall be paid to the legal dependents of the employee, actually and wholly dependent upon his earnings for support at the time of the accident and death, a weekly sum as hereinafter provided, for a period...