O'QUAIN v. United States, 1697.

• Decision Date: 26 July 1928
• Docket Number: No. 1697.,1697.
• Parties: O'QUAIN v. UNITED STATES.
• Court: U.S. District Court — Western District of Louisiana

28 F.2d 350 (1928)

O'QUAIN v. UNITED STATES.

No. 1697.

District Court, W. D. Louisiana, Lake Charles Division.

July 26, 1928.

T. Arthur Edwards, of Lake Charles, La., for plaintiff.

Philip H. Mecom, U. S. Atty., and J. Fair Hardin, Asst. U. S. Atty., both of Shreveport, La.

DAWKINS, District Judge.

Plaintiff brought this suit, alleging, first, that as the natural mother of John C. Broussard, who died on February 16, 1919, in the military service of the United States, she should be paid the proceeds of certain war risk insurance issued to him, and, in the alternative, if not lawfully entitled to claim said insurance as his natural mother, then that she stood in loco parentis to the deceased for more than one year prior to his enlistment, thereby acquiring the right to claim in that capacity under the statute. She further alleged, in the alternative, that, if she was not entitled to claim the insurance, then her children, some of whom were adults and others minors, should receive the same as the natural brothers and sisters of the deceased, and in a manner attempted to make them parties in the same petition, purporting to join those of age as petitioners, and to represent the minors as their natural tutrix. The petition nowhere alleges who, if any one, was made beneficiary under the certificate or policy of insurance, but taking the petition as a whole, and considering the briefs filed in connection therewith, as well as certain pleas and exceptions urged by the government, hereafter to be considered, I gather that she intended to assert her alleged rights, both under the laws of Louisiana and the federal statute, in so far as they were applicable.

The exceptions which have been filed by the government are as follows:

(1) Exception of improper articulation of the petition under the state statute governing pleadings.

(2) Exception of nonjoinder of parties plaintiff.

(3) Exception of misjoinder of parties plaintiff.

(4) Exception of no cause of action.

(5) Supplemental exception of no cause of action.

1. Taking these pleas up in the order named, I think it clear that the petitioner has failed to comply with the state statute of pleading, and I have indicated upon the margin to the left of the articles or paragraphs Nos. 1, 4, 5, 6, 8, 10, 11, and 14, the divisions which should be made of the allegations of fact therein, using pencil parentheses to enclose the matter which should be expressed within the separately numbered paragraphs. See Act No. 300, Legislature of Louisiana, 1914, p. 611.

2. The exception of misjoinder is leveled at the fact that plaintiff, in the alternative, claims on behalf of her minor children as a married woman and attempts to sue as their natural tutrix, when, according to her petition, their father and her present husband is still living. I think the position of the government upon this point, if the minor children have any right of action under the allegations of the petition, is correct; but, under the view which I take of the other issues subsequently to be disposed of, this exception becomes unimportant. Articles 246, 250, R. C. C.

3. The plea of misjoinder is directed to the point that, so long as the natural mother is living, the natural brothers and sisters have no claim to the estate of the deceased, and are therefore improperly joined in the suit. This point I think is likewise well taken. See R. C. C. 923; Taylor v. Allen, 151 La. 109, 91 So. 635, and authorities therein cited.

4. The first exception of no cause of action is based upon the proposition that the petition does not allege that plaintiff, the natural mother, had acknowledged the deceased according to the forms provided by the Louisiana law; i. e., by notarial act or in the registering of his birth or baptism, as required by articles 203 and 922 of the Revised Civil Code. The petition in substance sets forth that the deceased was born out of wedlock as the result of her illicit relations with one Dupre Broussard, at which time both parents were unmarried, and hence there could have been no impediment to his formal acknowledgment or legitimation, by their subsequent marriage or otherwise. I also quote pertinent paragraphs of the petition, as follows:

"4. Your petitioner shows that she never married until years after the birth of the said John C. Broussard, deceased, and that he took the name of his father, and was publicly known and publicly recognized as the natural son of petitioner and the said Dupre Broussard; that the knowledge of his birth and his parentage was well known, acknowledged publicly and privately in the community wherein he resided, and that he often visited your petitioner, his said natural mother, and recognized her as such during life, and contributed from time to time financially to her support, and last visited and bade her farewell just prior to his enlistment.

"5. Your petitioner avers that she recognized the said John C. Broussard openly and publicly as her offspring and natural son, and it was well known in the community wherein she resided; that she nursed him from an infant at her breast, and cared for him constantly until he was six or seven years of age, when he was left in the care of one Madam Rayon, who took charge of him for a number of years, and during all of which time, and up to the time of his death, he recognized your petitioner publicly, openly, and positively as his natural mother, and he was commonly, publicly, and notoriously known in the community as the natural son of Dupre Broussard and your petitioner, Ellen O'Quain, born Bertrand, and publicly recognized by them, and that such relation continued until the time he died overseas, as the result of wounds received in action."

From this it is seen there is no contention that deceased was ever acknowledged, according to article 203 of the Civil Code, reading as follows:

"The acknowledgment of an illegitimate child shall be made by a declaration executed before a notary public, in presence of two witnesses, by the father and mother, or either of them, whenever it shall not have been made in the registering of the birth or baptism of such child."

Article 922 also declares:

"Parents, when Heirs to Natural Children. The estate of a natural child deceased without posterity, belongs to the father or mother who has acknowledged him, or in equal proportions to the father and mother, when he has been acknowledged by both of them."

While it has been held that an illegitimate child, who has not been formally acknowledged according to the letter of the Code, may nevertheless prove a sort of informal acknowledgment by the mother, such as that she has openly and publicly recognized it as her own, for the purpose of permitting it to inherit from her in the absence of other legal heirs, the Supreme Court of Louisiana has never decided that either of the parents may inherit from their illegitimate children under such circumstances, but, on the contrary, has specifically denied such right in a number of cases. See Succession of Lacosst, 142 La. 673, 77 So. 497; Perkins v. Brownell-Drews Lumber Co., 147 La. 337, 84 So. 894. The reason for the distinction, as between the right of the child to inherit from the mother and the latter to take from it, is that the child is innocent and can do nothing itself to correct the condition produced by the parent's conduct; whereas, the parent, if there be no legal impediment, may give it a legal status as to both of them, and, if he or she fails, then it is his or her own fault in not taking sufficient interest in the offspring to give it...