Pointe Coupee Elec. Membership Corp. v. Pettey

• Citation: 6 So.2d 764
• Decision Date: 17 March 1942
• Docket Number: 2354.
• Court: Court of Appeal of Louisiana (US)
• Parties: POINTE COUPEE ELECTRIC MEMBERSHIP CORPORATION ET AL. v. PETTEY ET AL.

6 So.2d 764

POINTE COUPEE ELECTRIC MEMBERSHIP CORPORATION ET AL. v. PETTEY ET AL.

No. 2354.

Court of Appeals of Louisiana, First Circuit

March 17, 1942

Loret Percy & Bailey, of Baton Rouge, for appellants.

Dameron & Dameron, of New Roads, and McIntosh & Sims, of Oak Grove, for appellees.

LeBLANC Judge.

This is a proceeding under the Workmen's Compensation Statute, Act No. 20 of 1914, as amended, arising out of the death, on September 23, 1940, of an employee, Alton D. Pettey, who left a widow by a second marriage, Mrs. Ethlee Neill Pettey, and a minor child under eighteen years of age, Alton D. Pettey Jr., issue of a former marriage and who lived with his mother, who had been awarded his care, custody and control in the decree of divorce between her and her husband. After the death of her husband, she qualified as the natural tutrix of the child.

The employer and its compensation insurance carrier, who are the plaintiffs herein, apparently are willing to pay all compensation that is due but have instituted this suit to ascertain what the exact amount is and to make sure that it is paid to the proper party, and if any is due to both, that the correct proportion will be paid to each.

There is no dispute concerning the amount of wages formerly earned by the deceased employee and the corresponding amount of compensation due, depending on whether both the widow and the minor child are entitled to be paid or, in the event that only the widow can recover. To bring the matter to a focus the employer and the insurance carrier presented their petition in this proceeding to the Court in which they set out that the natural tutrix of the minor, Alton D. Pettey Jr., claims that they owe compensation, in solido, to the said minor at the rate of $11.22 per week which would be 32 1/2% of the average weekly wage of the deceased employee, for the period of 300 weeks, and that the widow, Mrs. Ethlee Neill Pettey claims the same amount of compensation in her own behalf. Against these claims however they present the following contentions under their pleadings: (1) That if they owe any compensation to the minor, Alton D. Pettey, Jr., at all, which they deny however as they aver that his deceased father did not contribute anything whatsoever to his support, the number of weeks he is entitled to be paid cannot exceed 227 6/7ths weeks from the date payments became due, because the said minor will arrive at the age of eighteen years on February 4, 1945. See Sec. 8, Subsec. 2 (F) of Act 20 of 1914, as amended. (2) That if they owe no compensation whatsoever to the said minor, all that they owe then is $11.22 per week to the widow, Mrs. Ethlee Neill Pettey, which is 32 1/2% of the average weekly wage, for a period of 300 weeks. See Sec. 8, Subsec. 2 (A) and (E), Paragraph (1) of the act. (3) That if however they owe the minor any compensation whatsoever then and in that event they owe the widow, Mrs. Ethlee Neill Pettey, at the rate of $7.98 per week which amounts to one-half of 46 1/4% of the decedent's weekly wages, for a period of 300 weeks. Sec. 8, Subsec. 2 (E), Paragraph (2) of the act. They pray that the Court resolve all the contentions made and render such judgment as equity, law and the nature of the case may require.

Service was made on both the widow, Mrs. Ethlee Neill Pettey and on the natural tutrix of the minor, Alton D. Pettey, Jr., and each filed an answer with a reconventional demand. The widow neither denied nor did she admit the allegations of the petition concerning any compensation that may be due the minor arising out of his dependency, but she specifically averred that whether he was entitled to any payments or not, that could in no manner affect her right to recover at the rate of $11.22 per week for a period of 300 weeks, and that is what she asked and prayed for in her reconventional demand. The natural tutrix of the minor averred that in the judgment of divorce between her and her former husband he had been condemned to pay a sum equal to one-fourth of his monthly earnings to her for the maintenance, care and support or their minor child, and that at the time of his death, the minor was actually and wholly dependent on his father who supplied him with money, clothes and other necessities. She further specifically alleged that the plaintiffs owed her said minor child, in solido, compensation at the rate of $4.75 per week for 227 6/7th weeks, which is what she prayed for in her reconventional demand.

The only disputed question which necessitated the taking of testimony seems to have been the one concerning the contributions made by the decedent to his minor child and the relation which these bore to the child's dependency. The district judge resolved that question of fact in favor of the child holding that he was actually and wholly dependent upon his father for support at the time of the latter's death. He then ruled that the widow was entitled to 32 1/2% of the decedent's weekly wages which was what the Compensation Statute allowed her as a matter of right and as conclusively presumed to be dependent, whether there were any other dependents or not under Subsec. 2 (A) and (E), Paragraph (1) of Sec. 8 of the act, and that the child was entitled to 13 1/4% which is the difference between the 32 1/2% allowed the widow when she is the sole dependent and the 46 1/4% allowed the widow and one child under Subsec. 2 (E), Paragraph (2) of the same section. This was in accord with the respective demands made on behalf of the defendants who...