Selser v. Bragmans Bluff Lumber Co., Inc

• Decision Date: 13 March 1933
• Docket Number: 14483
• Citation: 146 So. 690
• Court: Court of Appeal of Louisiana — District of US
• Parties: SELSER ET AL. v. BRAGMANS BLUFF LUMBER CO., INC

146 So. 690

SELSER ET AL. v. BRAGMANS BLUFF LUMBER CO., INC

No. 14483

Court of Appeal of Louisiana, Orleans.

March 13, 1933

Rehearing denied April 10, 1933.

Rosen Kammer, Wolff & Farrar, of New Orleans, for appellant.

St Clair Adams and St. Clair Adams, Jr., and Gordon Boswell, all of New Orleans, for appellees.

HIGGINS Judge. WESTERFIELD, Judge (concurring).

I agree with all that is said by the majority opinion concerning the liability of defendant, but am of opinion that compensation should be paid "entirely to the widow," as provided in paragraphs G and H of subsection 2 of section 8, p. 360 of Act No. 242 of 1928.

OPINION

This is a suit for compensation for the death of William L. Selser, brought jointly by his widow, individually, and also on behalf of her minor son, Bruce O. Lilleton, issue of her previous marriage, and also by I. M. Selser, as the guardian of the minors, Will Lindsey Selser and Elizabeth Selser, children of the deceased by a former marriage.

The petition alleges, in substance, that there were no children born of the second marriage, but that the widow had one child by a previous marriage born February 15, 1917, and deceased left two children by a former marriage, one born May 28, 1916, and the other on July 24, 1917; that I. M. Selser, a resident of East St. Louis, Ill., was duly appointed as guardian of these two children by the probate court of St. Clair county, Ill., and letters of guardianship properly issued; that the widow and the said minor children were solely dependent upon the deceased at the time of his death; that the defendant is a Louisiana corporation domiciled in the city of New Orleans; that it is engaged in the logging and lumber business in this state and the Republic of Nicaragua; that on May 10, 1927, at New Orleans, the defendant, in writing, employed the deceased as a stenographer at a salary of $ 150 a month, his services to be performed in Nicaragua; that later he was promoted to a position of general inspector of all equipment, tools, and properties of the company at a salary of $ 225 a month, which position he was occupying and salary he was receiving at the time of his death; that the country around the town of Puerta Cabezas, Nicaragua, where the deceased rendered his services, was sparsely settled, remote, isolated, and inhabited by semicivilized natives, some of whom had organized themselves into bands of bandits, who preyed upon the small towns; that because of the hazard and danger created by the bandits the United States marines were stationed in that locality and a militia was organized by the local authorities; that during the early part of the year 1931 the raids by the bandits were frequent, necessitating the defendant furnishing its employees with arms for the purpose of protecting themselves against violence and the company's property against depredation and theft by the bandits; that the deceased's employment required him to visit numerous company properties in the interior in order to check its equipment and tools, and that the company furnished him a motorcar with a native operator for the purpose of going over its railroad lines in order to perform his duties; that in the early morning of April 11, 1931, while acting in the course and scope of his employment, the deceased started to visit one of the interior plantations at Log-town and learned that it had been raided by bandits the previous night; that deceased started back to Puerta Cabezas, but was met by the United States Marines and the local militia proceeding in the direction of the raid and he and other employees of the company started back toward the plantation which had been raided; that en route the party was ambushed by the outlaws, with the result that the captain of the marines and a member of the militia were killed, and deceased was mortally wounded and died on April 14, 1931, at Puerta Cabezas; and that deceased was killed while acting within the course and scope of his employment. Petitioners prayed for the maximum amount of compensation of $ 20 a week for 300 weeks, to be proportioned among the dependents by the court, and for 20 per cent. attorney's fee not to exceed $ 1,000.

Defendant filed an exception of want of authority and capacity on the part of I. M. Selser to represent the said minors and stand in judgment. Defendant also filed an exception of no right or cause of action. These exceptions were overruled and defendant answered and admitted the deceased's employment, his salary, and his death at the hands of the bandits, as alleged, but denied that the company furnished arms to its employees and instructed them to defend the company's property against outlaws; that there were frequent raids by the bandits upon the company's property, and that the deceased was killed while acting in the course and scope of his employment. Defendant claimed a credit of $ 990.50 covering funeral charges, drayage, and $ 675.00 cash, which was voluntarily paid to Mrs. Selser after her husband's death.

There was judgment in favor of the plaintiffs, as prayed for, subject to a credit of $ 675, and the defendant has appealed.

The exception of want of capacity to stand in judgment by the guardian is predicated upon the provisions of paragraphs G and H of subsection 2 of section 8, p. 360, of Acts 242 of 1928, which read as follows:

"(G) Where there is a surviving widow, widower and child or children, entitled to compensation, the compensation above described shall be paid entirely to the widow or widower for the common benefit of such widow or widower and child or children, and the appointment of a tutor not be necessary. Where there is no surviving parent, and a child who is entitled to compensation, payment shall be made to the duly appointed tutor.

"(H) The term "child' or "children' shall cover only legitimate children, step-children, posthumous children, adopted children and illegitimate children acknowledged under the provisions of Civil Code Article 203, 204 and 205. The term "brother' and "sister' shall include step-brothers and step-sisters, and brothers and sisters by adoption."

Counsel for defendant argues that, as paragraph H specifically provides that the term "child or children" shall cover step-children, and paragraph G provides that, where the surviving widow and child or children are entitled to recover, the compensation shall be paid entirely to the widow for the common benefit of the widow and child or children, the suit should have been brought, in behalf of all the minors, by the stepmother.

Counsel for plaintiff counters by pointing out that the last sentence of paragraph G provides that, where there is no surviving parent, the compensation due the child or children shall be paid to the duly appointed tutor. He contends that the words "surviving parent" refer to the natural parent and not to a step-parent, and, as both natural parents of the two children of the deceased by his former marriage are dead, that I. M. Selser, the guardian, has the right to sue for and receive any compensation due them.

In death cases the payment of compensation is predicated upon the dependency of the designated surviving relatives or parties. The theory of the statute is to provide the means for support and maintenance of those who have been deprived thereof by the death of the deceased in a hazardous employment. This is particularly true in the cases of widows and minor children who were solely dependent upon the husband and father respectively. Instead of permitting these dependents, who are unable to provide for themselves, to become public charges, the theory of the Compensation Act is to place the burden of their maintenance and support upon the industry as a whole. Since this is true, it would seem absurd to say that the Legislature intended to place the exclusive right of suing for and receiving compensation in a death case, where there is a stepmother, in such stepmother, when she has never had the custody and possession of the dependent children of a previous marriage of the deceased. To hold that the stepmother, under those circumstances, would have the exclusive right to sue for and receive the compensation due the dependent minors when they have been constantly in the possession and custody of the maternal or paternal relatives, and have never been in the custody of the stepmother, would be to defeat the very purpose of the statute, because the compensation would be paid to a person who has never had any interest whatsoever in the maintenance and support of the dependent minors. Surely it would not be for the "common benefit" of the minors to pay the money to her. For instance, a man is married three times in this state. By his first marriage he has three children. His wife divorces him and secures the custody and possession of the children. He then marries a second time and there are two children born of this union. The second wife dies and the children are placed in the care of the maternal grandparents. He then marries a third time, but no children are born of the marriage. He is killed under circumstances which involve the liability of his employer under the statute. The widow and all of the minor children were dependents of and supported by the deceased. Could the court possibly hold that the exclusive right to sue for and receive compensation in behalf of the minor children was lodged in the surviving spouse as widow and stepmother of the minors? We think not. In such a case, if the natural mother of the minors of the first marriage and the maternal grandparents, who have the custody of the children of the second marriage, joined with the widow of the third marriage in claiming compensation for the joint benefit of all the dependents, we do not believe that ...