Youchican v. Texas & P. Ry. Co

• Decision Date: 03 November 1920
• Docket Number: 22808
• Citation: 86 So. 551,147 La. 1080
• Parties: SESOSTRIS YOUCHICAN v. TEXAS & P. RY. CO
• Court: Louisiana Supreme Court

86 So. 551

147 La. 1080

SESOSTRIS YOUCHICAN v. TEXAS & P. RY. CO

No. 22808

Supreme Court of Louisiana

November 3, 1920

Appeal from Fourteenth Judicial District Court, Parish of Avoyelles S. Allen Bordelon, Judge.

Action by Sesostris Youchican against the Texas & Pacific Railway Company. From judgment for defendant, plaintiff appeals.

Affirmed.

A. V Coco, of New Orleans, W. E. Couvillon, of Marksville, and L E. Hall, of New Orleans, for appellant.

Spencer, Fenner, Gidiere, & Phelps, of New Orleans, and Wm. H. Peterman, of Alexandria, for appellee.

OPINION

PROVOSTY, J.

Plaintiff sues in damages for the death of his mother, who was killed by a train of the defendant company. Until article 2315 of the Code was amended by Act 71, p. 94, of 1884, and Act 120, p. 178, of 1908, our jurisprudence was well settled to the effect, quoting Hennen Dig. p. 1056, No. 1. "Our law gives no civil action for the homicide of a free human being." And our jurisprudence is well settled that these statutes, in granting a right of action to the "child" or "children" of the person killed, have reference exclusively to legitimate children, i. e., children born in wedlock, or to children duly legitimated. Lynch v. Knoop, 118 La. 611, 43 So. 252, 8 L.R.A. 480, 118 Am. St. Rep. 391, 10 N.Y. Anno. Cas. 807; Landry v. Am. Creosote Wks., 119 La. 231, 43 So. 1016, 11 L.R.A. 387; Green v. N. O., S. & G. I. Ry. Co., 141 La. 120, 74 So. 717, and authorities there cited.

Plaintiff was never legitimated; and no marriage ever took place between his parents except according to the marriage rites among the Tunica Indian Tribe, to which the mother belonged, followed by cohabitation for a number of years and the begetting of four children. Later the mother lived with another man in open concubinage and while plaintiff's father was still living, so far as appears from the record. In State v. Chiqui, 49 La.Ann. 131, 21 So. 513, this court quoted the following passage from the American State Papers, Indian Affairs, to wit:

"Tunicas: These people formerly lived on the Bayou Tunica, above Pointe Coupee, on the Mississippi, east side; live now at Avoyelles; do not at present exceed twenty-five men. Their native language is peculiar to themselves, but speak Mobilian; are employed occasionally by the inhabitants as boatmen, etc.; in amity with all other people, and gradually diminishing in numbers."

The tribe, when it migrated, settled upon a 200-acre tract one mile and a half from Marksville; and it still occupied this tract at the time of the trial of the present case, such as were left of them, five only of whom, in all, were of full blood.

Two witnesses who were present at the marriage ceremony describing it after more than 40 years, say that the groom and bride appeared before the chief of the tribe, the one accompanied by his father, and the other by her mother, and the chief asked them if they wished to take...