Stearns v. Love Drilling Company, Inc.

• Decision Date: 11 December 1926
• Docket Number: 2810
• Citation: 5 La.App. 174
• Court: Court of Appeal of Louisiana — District of US
• Parties: STEARNS v. LOVE DRILLING COMPANY, INC

5 La.App. 174

STEARNS v. LOVE DRILLING COMPANY, INC

No. 2810

Court of Appeals of Louisiana, Second Circuit

December 11, 1926

Appeal from the Fourth Judicial District Court of Louisiana, parish of Ouachita. Hon. Percy Sandel, Judge.

Action by Lucinda Stearns against Love Drilling Co., Inc.

There was judgment for defendant and plaintiff appealed.

Motion to amend filed in Court of Appeal and case remanded to the District Court for the purpose of allowing the plaintiff to amend petition.

Judgment set aside and case remanded.

M. C Redmond, of Monroe, attorney for plaintiff, appellant.

Theus Grisham & Davis, of Monroe, attorneys for defendant appellee.

OPINION

ODOM, J.

The plaintiff brought this suit under the Workmen's Compensation Act to recover compensation for the death of her son Clay D. McNeil who was killed while working for the defendant company. Her demands were rejected by the District Court and she appealed.

OPINION.

Plaintiff alleged that the deceased was her son and was killed while at work for defendant and that she was partially dependent on him for support.

But she did not allege that he left no widow or minor child or children at his death.

Defendant, in limine, tendered an exception of no right and no cause of action. The minutes of the court do not show any ruling on this exception.

At the beginning of the trial of the case, defendant objected to the introduction of any testimony, on the ground that the petition set out no cause or right of action. This objection was overruled by the lower court and the objection and ruling were made general.

Defendant has filed and now urges in this court the same exception.

The exception is based upon the ground that plaintiff did not allege that her deceased son did not leave at his death a widow or minor child or children.

Subsection 1 of section 8 of the Workmen's Compensation Act, as amended by Act 216 of 1924, provides--

"That for injury causing death within one year after the accident, weekly compensation shall be paid under this Act, for a period of three hundred weeks to the following persons:"

Then follow the provisions for the payment to the widow or widower and the child or children of the deceased, in case there be such, and clause (g) of the same section and subsection of the Act, in so far as necessary to quote the same, read as follows:

"If there be neither widow, widower nor child, then to the father or mother of the deceased employee. "

It is perfectly apparent that if the deceased leaves at death either a widow, a widower, or a minor child or children, the father or mother can recover nothing.

As a condition precedent to recovery under the act the father or mother would have to show affirmatively that the deceased child left at death neither of the above named persons; for the survival of either excludes the father or mother from recovery.

Under our system of practice and pleading all facts which it is necessary to prove in order to maintain an action must be alleged, even though such allegation involves a negative.

Lurie vs. Titcomb, 139 La. 9, 71 So. 200.

Blackburn vs. La. Ry. & N. Co., 128 La. 319, 54 So. 865.

Vinton O. & S. Co. vs. Gray, 135 La. 1049, 66 So. 357.

That principle applies in suits under the Workmen's Compensation Act as well as in others.

Arthur vs. Alexandria Lumber Co., 143 La. 207, 78 So. 469.

Whittington and wife vs. Louisiana Sawmill Co., 142 La. 322, 76 So. 754.

Gros vs. Millers' Indemnity Co., 153 La. 257, 95 So. 709.

In the case of Register and wife vs. Harrell, 131 La. 983, 60 So. 638, it was held, to quote the syllabus written by the court:

"Where a statute gives the parents a right of action for the death of their son only in case he has left no wife and children the parents in bringing their action must allege the non-existence of the wife or children, or both, and, where this allegation does not...