Thompson v. Vestal Lumber & Manufacturing Co.

• Decision Date: 02 December 1943
• Docket Number: 6616.
• Citation: 16 So.2d 594
• Court: Court of Appeal of Louisiana — District of US
• Parties: THOMPSON v. VESTAL LUMBER & MFG. CO.

16 So.2d 594

THOMPSON v. VESTAL LUMBER & MFG. CO.

No. 6616.

Court of Appeals of Louisiana, Second Circuit

December 2, 1943

Rehearing Denied Jan. 5, 1944.

G P. Bullis, of Ferriday, for appellant.

Dale Richardson & Dale, of Vidalia, for appellee.

TALIAFERRO Judge.

Clara Thompson, the admitted common law widow of Marshall Davis deceased, instituted this suit against defendant, Vestal Lumber and Manufacturing Company, employer of the deceased, for and on behalf of their two minor children, Myrtis Lee and Jean Davis, firstly, to recover damages and, secondly, workman's compensation on account of his death. In the tort action it is alleged that the deceased met death because of the negligence of the employer in several mentioned respects. It is also alleged:

"Marshall Davis, and said Petitioner, Clara Thompson, lived together in open concubinage or common law marriage, in said Town of Clayton, Louisiana, for many years, but were never married, although no lawful impediment to marriage existed.

"Of said union two children were born, namely, said Myrtis Lee Davis, now four years old, and said Jean Davis, now 14 months old.

"Said children were the illegitimate children of said Marshall Davis, and were never acknowledged by him as his children, by notarial act, but were always acknowledged as his children by him throughout the community, and lived with him, in the same house with him and said Clara Thompson, and were supported by said Marshall Davis from their birth to the date of his death, as his children."

"Said children have an inherent, inalienable right to the support and companionship of their said father, and any law which attempted to deprive them of such right would be null and void as violating Sections two and six of Article I of the Constitution of Louisiana. * * *".

The deceased was accidentally killed on September 1, 1941. The tort action was filed August 31, 1942. The alternative demand, that for compensation, was first urged by supplemental petition filed December 4, 1942. To both demands defendant tendered exceptions of no cause and no right of action. To the demand for compensation a plea of prescription of one year was also interposed. The plea was not passed upon. The exceptions were sustained and the suit dismissed. Plaintiff appealed.

The exceptions are leveled against the right of the minors to recover on either phase of the demand on the ground that they are illegitimate and were not acknowledged by the deceased in any manner prescribed by law.

Prior to adoption of Act 20 of 1914, known as the Burke-Roberts Employers' Liability Act, there did not exist a workmen's compensation law in this state. The general law of tort only prevailed and under it the defenses of contributory negligence, fellow servant doctrine and that of assumption of risks, when either were urged and proven, barred recovery by the injured workman or his widow and children in the event of his death. This result in many cases left the wife and/or dependent children in necessitous circumstances and a charge upon the public or the state for bare subsistence. The imperative need for legislation to correct this lamentable condition was felt and acted upon by many states of the union prior to our own. It was a matter that addressed itself primarily to the law making power, the Legislature. These mentioned defenses were specifically abolished and a schedule of payments for incapacitating injuries to and/or death of the workman was set up by said act. It was equally the power and right of the Legislature to ordain specifically upon whom devolved the right to sue to recover workmen's compensation in the event of the death of the workman, and it did so in no uncertain terms. Subsection 2(H) of Section 8 of the Act, as amended by Act No. 242 of 1928, names the various kinds of children of a deceased workman upon whom devolves the right to recover compensation for his death. It reads:

"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. * * *"

Article 203 of the Civil Code, referred to, reads 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."

There is no contention, but on the contrary it is admitted in argument and petition, that neither of the children of the deceased was acknowledged by their father in compliance with either of the methods specified in this Article. Article 204 of the Civil Code simply provides that Article 203 does not apply to children, the offspring of persons as to whom there existed legal impediment to their marriage, and Article 205 declares that the acknowledgment by the father without the concurrence of the mother is effective only as to him.

The right to recover workmen's compensation does not devolve upon dependent children as an inheritance....