Thompson v. Vestal Lumber & Mfg. Co. , 208 La. 83 ( 1944 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Clara Thompson filed suit on August 31, 1942, against the defendant company to recover damages alleged to have accrued to her two minor children on account of the death of their father, who was alleged to have been killed through the fault and negligence of the defendant company. She alleged that the father of her children was employed by, and was at work for, the defendant company; that through the gross fault and negligence of the defendant he was killed on September 1, 1941, and that on account of the death of the father of her children they were damaged in the sum of $5000 each. The damages were claimed under Article 2315 of the Revised Civil Code.

She alleged in Paragraph 1 of her petition that she and Marshall Davis, the father of her children, "lived together in open concubinage or common law marriage * * * for many years, but were never married, altho no lawful impediment to marriage existed." In Paragraph 2 of her petition she alleged that "Of said union, two children were born, namely, Myrtis Lee Davis, now four years old, and Jean Davis, now 14 months old," and alleged in Paragraph 3 that "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."

She prayed for judgment "in favor of said minor children * * * through their said mother," and against the defendant lumber company, in the full sum of $5000 for each of said children, or a total of $10,000.

Defendant excepted to the petition on the ground that it failed to allege either a valid cause or a valid right of action.

Before these exceptions were passed on by the trial judge, the plaintiff filed a supplemental petition, claiming compensation for her children under Act 20 of 1914, as amended by Act 242 of 1928. Defendant filed an exception to the suit for compensation under the Workmen's Compensation Act on the ground that it disclosed neither a lawful cause nor a lawful right of action. The trial court sustained these exceptions, holding that the plaintiff had no cause or right of action either under the provisions of Article 2315 of the Revised Civil Code or under the Workmen's Compensation Act, and dismissed plaintiff's suit in toto.

The plaintiff appealed to the Court of Appeal, Second Circuit. That court affirmed the ruling of the trial judge. 16 So. 2d 594. Plaintiff applied to this court for writs, which were granted, and the case is now before us for review.

The ruling of the district court and of the Court of Appeal that plaintiff has no cause or right of action under Article2315 of the Civil Code for damages resulting from the death of the father of her children, even though caused by the gross fault and negligence of the defendant, is supported by repeated decisions of this court.

According to plaintiff's allegations, her children are bastards. In Youchican v. Texas Pacific Ry. Co., 147 La. 1080, 86 So. 551, this court held that under our jurisprudence it is well settled that the provisions of Article 2315 of the Revised Civil Code, granting a right of action to a child or children for damages resulting from the tortious death of a parent, have reference to legitimate children — that is, children born in wedlock — or to children duly legitimated. See also Lynch v. Knoop, 118 La. 611, 43 So. 252, 8 L.R.A., N.S., 480, 118 Am. St. Rep. 391, 10 Ann.Cas. 807; Landry v. American Creosote Works, 119 La. 231, 43 So. 1016, 11 L.R.A., N.S., 387; Green v. New Orleans, S. G. I. R. Co., 141 La. 120, 24 So. 717.

The Court of Appeal cited and relied upon the above cited cases in support of its ruling that the plaintiff had no cause or right of action under Article 2315 of the Code. Its ruling was correct.

The ruling of the district court and of the Court of Appeal that plaintiff has no cause or right of action to recover compensation for her children under the Workmen's Compensation laws of the state was also correct. The Workmen's Compensation law, which is Act 20 of 1914, as originally drafted provided in Section 8 for compensation to be paid an injured employee by his employer for injuries sustained by the employee while engaged at work in the scope and course of his employment where such injuries resulted in disability.

It provided also for compensation to be paid by the employer to the legal dependents of the employee in cases where the injuries suffered by the employee resulted in death.

Section 8, Subsection 1(e), contained the following provisions:

"For injury causing death within one year after the accident, there shall be paid to the legal dependents of the employee wholly dependent upon his earnings for support at the time of the injury, a weekly sum as hereinafter provided * * *." (Italics here and elsewhere in this opinion are the writer's.)

That paragraph further provided that, if the employee leaves "legal dependents" only partially dependent for support upon his wages at the time of the injury, such partial dependents shall receive weekly payments in proportions specified.

Subsection 2, Section 8 of that act provided that:

"The following persons shall be conclusively presumed to be wholly dependent for support upon a deceased employee:

"(a) A wife upon a husband with whom she was living at the time of the injury and whom she has not abandoned for cause at the time of his death.

"(b) A husband mentally or physically incapacitated for wage earning upon a wife with whom he was living at the time of her injury.

"(c) A child or children under the age of eighteen years (or over said age, if physically or mentally incapacitated from earning) upon the parent with whom he is, or they are, living at the time of the injury of such parent. * * * In all other cases, question of legal dependency in whole or in part, shall be determined in accordance with the facts as they may be at the time of the injury; and in such other cases, if there is more than one person wholly dependent the death benefit shall be divided equally among them, and the persons partially dependent, if any, shall receive no part thereof; if there is no one wholly dependent, and more than one person partially dependent, the death benefit shall be divided among them according to the relative extent of their dependency. No person shall be considered a dependent unless a member of the family of the deceased employee or bearing to him the relation of husband or widow, or lineal descendant or ascendant, or brother or sister, or legally adopted child."

That part of Section 8 of the original act, which relates to the payment of compensation in cases where the injury sustained by the employee results in death, has been amended seven times. It was first amended by Act 243 of 1916. Subsection 1 (f), Section 8 of the 1916 act, provided that:

"For injury causing death within one year after the accident, compensation * * * shall be paid for a period of three hundred weeks, to the following persons."

These persons are named in subsequent paragraphs. Paragraphs (11) and (12) of that subsection read as follows:

"(11) In all cases provided for in this schedule the relation of dependency must exist at the time of the injury.

"(12) Compensation shall be payable under this schedule to or on account of any child or brother or sister or other dependentmember of the family not otherwise specifically provided for, only if and while such child, brother, sister, or other dependent member of the family not otherwise specifically provided for is under the age of eighteen years * * *."

The terms "child" and "children" as used in this act are defined as follows:

"The term ``child' and ``children' shall cover only legitimate children or acknowledged illegitimate children, but shall include step-children and adopted children if members of the decedent's family at the time of his death, and shall also include posthumous children."

It will be noted that in the 1914 act the compensation due in case the injuries received by the employee result in death was payable to "the legal dependents of the employee," who were specifically named in Section 8, Subsection 2(a), (b), and (c), while in the act as amended in 1916 these payments were to be made to certain named individuals, such as a widow, widower, child or children, father, mother, brother and sister, "or other dependent member of the family."

The 1916 act defined what was meant by the terms "child" and "children," specifying that those terms should cover onlylegitimate children or acknowledged illegitimate children, and should include step-children, adopted children, if members of the deceased's family at the time of his death, and also posthumous children. There was no such definition in the 1914 act, that act merely providing that no person should be considered a dependent unless a member of the family of the deceased employee "or bearing to him the relation of husband or widow, or lineal descendant or ascendant, or brother or sister, or legally adopted child." In the 1916 act there was no mention made of persons "conclusively presumed to be wholly dependent for support upon a deceased employee."

The original act was next amended by Act 38 of 1918. The provisions of this act, in so far as they relate to the payment of compensation in case of death, are almost identical with those of the 1916 act. This act, like the 1916 act, makes no mention of persons who are conclusively presumed to be dependent upon the deceased. It defines the terms "child" and "children" in the following language:

"The terms ``child' and ``children' shall cover only legitimate children or acknowledged illegitimate children, but shall include step-children, posthumous children and adopted children."

The act was next amended by Act 247 of 1920, page 467. The provisions of this act relating to the payment of compensation in case of the death of the employee are like those contained in the 1918 amendment. The 1920 act declares that the terms "child" and "children" "shall cover only legitimate children,acknowledged illegitimate children, step-children, posthumous children and adopted children."

The original act was also amended by Act 43 of 1922 and by Act 216 of 1924. These acts made no changes as to the payment of compensation in case of death of an employee, and the definition contained in them of the terms "child" and "children" is identical with that contained in the 1920 act. They, like the other amendments, make no reference to persons who are conclusively presumed to be dependent for support on the wages of the deceased.

Referring again to Act 38 of 1918, which amended the original Compensation Act, we note that the act provided that:

"The terms ``child' and ``children' shall cover onlylegitimate children or acknowledged illegitimate children, but shall include step-children, posthumous children and adopted children."

In the case of Perkins et al. v. Brownell-Drews Lumber Co., Ltd., 147 La. 337, 84 So. 894, the question whether the dependent parents of an illegitimate child, not acknowledged according to the provisions of the Revised Civil Code, were entitled to recover compensation for the death of their son, who was killed at a sawmill in the course of his employment, was squarely presented to this court. In the language of the court, the defense in that case was "that the child was illegitimate, and had never been acknowledged by either of the plaintiffs."

Article 203 of the Revised Civil Code 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."

After quoting this article of the Code, the court said:

"Defendant contends that the modes of acknowledgment here specified are exclusive; and plaintiff contends that they are not, but that a baptism of the child in the presence of the parents as their child, and a declaration by the parents to the federal census taker of their parentage of the child, is the equivalent of a ``registering of the birth or baptism' of the child. For so holding this court would have, not to interpret, but to amend, the said article by recognizing an additional mode of acknowledgment."

The defense in that case was the same as the defense in the case at bar. And in that case, as in the case at bar, the plaintiffs contended that the modes of acknowledgment specified in the Code were not exclusive. In the case at bar, plaintiff alleged that her children were illegitimate and had never been acknowledged by their father by notarial act as his children, but were always acknowledged as his children "throughout the community." In the Perkins case, we held that the modes of acknowledgment specified in the Code were exclusive (citing Succession of Lacosst, 142 La. 673, 77 So. 497), and for that reason the demand of the plaintiffs was rejected.

That case was decided on May 3, 1920, and a rehearing was denied on May 31 of that year, while Act 38 of 1918 was in force. Subsequently, on November 17, 1924, it was held by the Orleans Parish Court of Appeal in the case of Gullung v. Dalgarn Construction Co., 1 La.App. 147, that an illegitimate child not acknowledged according to the forms prescribed by the Civil Code was not entitled to compensation for the death of his father under the Workmen's Compensation Act. The child in that case was an adulterous bastard, and for that reason could not have been legally acknowledged by his parents. But whether the child was one who could have been acknowledged or not was not an issue in the case. The facts were that the child had not been acknowledged by his parents according to the modes prescribed by the Civil Code, and the court held that, because he was not so acknowledged, he was not entitled to the benefits of the Compensation Act. The late Judge Claiborne, author of the opinion in the Gullung case, made certain observations which, in view of subsequent amendments to the Workmen's Compensation Act, we think are worthy of note. Judge Claiborne said:

"The writer of this opinion, pursuant to the spirit of the Employer's Liability Act, was inclined to believe that the Act might be considered as a separate and independent legislation, not to be interpreted by the Civil Code, and that the words ``acknowledged illegitimate children' might be construed simply as ``recognized' or established children entitled to alimony, C.C. 920 (914); Bennett v. Cane, 18 La.Ann. 590; or in default of such construction that the ``adulterous child' might be treated as a ``dependent'. But the decision in the Perkins case,147 La. 337 [84 So. 894], does not permit him to entertain the possibility of such a construction."

While Judge Claiborne did not state, in so many words, that he sympathized with a child who found himself in the sad plight of an unacknowledged illegitimate child, or a bastard, his statement clearly shows that he did, and that he was inclined to interpret the statute so as to include illegitimate children recognized by modes other than those specified in the Civil Code, and that he would have done so but for the decision in the Perkins case.

Whether Judge Claiborne intended them to be such or not, his remarks in the Gullung case were suggestions, at least, that, if the members of the Legislature thought that the rule laid down in the Perkins case and followed by him in the Gullung case was harsh and unjust, they might amend the act so as to permit unacknowledged illegitimate children, who were recognized as members of the family of their parents, to recover compensation for the death of their parents, and permit the dependent parents of such children to reap the benefits of the act. We must assume that the members of subsequent Legislatures were aware of the ruling in the Perkins case, decided in 1920, and the ruling in the Gullung case, decided in 1924. The Legislature has amended the act twice since 1924, but in neither act did it see fit to change the seemingly harsh rule relating to illegitimate children not acknowledged by their parents according to the form prescribed by the Code.

The act was amended by Act 85 of 1926, in which it was provided in Section 8, Subsection 2(H), that:

"The term ``child' or ``children' shall cover only legitimate children, step-children, posthumous children, adopted children and illegitimate children acknowledged under the provisions ofCivil Code Articles 203, 204 and 205."

Section 8 of the 1914 act was again amended by Act 242 of 1928, and in the 1928 act, in Subsection 2(H), the term "child" or "children" is defined, word for word, as in the 1926 act. The 1928 act is the one now in force.

Thus the Legislature, at two regular sessions which convened after Judge Claiborne wrote the opinion in the Gullung case, did not amend the Compensation Act, as the judge evidently thought it should be amended, so as to make the act less harsh in its provisions relating to the rights of unacknowledged illegitimate children, and the rights of the parent or parents of such children, to claim compensation. On the contrary, it deliberately and ex industria, we must assume, wrote into the Workmen's Compensation law a provision which corresponds exactly with the ruling in the Perkins and the Gullung cases, by providing that the law does not apply to illegitimate children who have not been acknowledged "under the provisions of Civil Code Articles 203, 204 and 205."

Evidently the purpose of the Legislatures of 1926 and 1928 was to make it certain that the lawmakers intended the act to mean just what the court had said it meant, which was that the phrase "acknowledged illegitimate children" used in the prior acts referred exclusively to those illegitimate children who had been acknowledged according to the forms prescribed by the Civil Code.

In June, 1930, approximately two years after the act was amended in 1928, the Court of Appeal, First Circuit, held that only such illegitimate children as had been acknowledged by their father according to the provisions of the Civil Code, articles 203 et seq., were entitled to compensation under the Workmen's Compensation Act. Wells v. White-Grandin Lumber Co., Inc., 13 La.App. 696, 129 So. 171; 86 A.L.R. 878. See also Stewart v. Parish of Jefferson Davis, 17 La.App. 626, 136 So. 659, decided by the same court in 1931.

The case of Barranco v. Davis, 175 La. 35, 142 So. 844, was decided in May, 1932, and a rehearing was denied on June 20, following. That was a suit, said the court, "brought by Marie Barranco (Gutierrez) to recover the sum of $20 per week for 300 weeks for the death of John Gutierrez, for the use and benefit of petitioner's three minor children, * * * alleged to be the dependent illegitimate children of petitioner and John Gutierrez, and by him to have been acknowledged."

The defendant admitted in his answer that the death of John Gutierrez, the father of the children, was caused by injuries received by him during the course of his employment, but denied that any compensation was due "on the ground that the three children were never acknowledged by their alleged father in the mode prescribed by the Louisiana Workmen's Compensation Act (Act No. 20 of 1914, as amended)."

After defendant filed his answer, he admitted that one of the children, Anna Belle Gutierrez, had been duly acknowledged by her father, and that plaintiff was entitled to recover for the benefit of that child 32 1/2 per cent of the deceased's wages for a period of 300 weeks. The trial judge found as a fact that only one of the children, Anna Belle, had been acknowledged by her father according to the method prescribed in the Civil Code, and rendered judgment in favor of this child for compensation amounting to 32 1/2 per cent of deceased's wages for 300 weeks, and rejected the demands of the plaintiff for compensation in favor of the other two children for the reason that they had not been so acknowledged.

The case was appealed to the Court of Appeal, Parish of Orleans. That court amended the judgment of the district court by allowing compensation to the three dependent minor children. An application for writs was made to this court, which was granted. This court, after considering the issues involved, "ordered that the judgment of the Court of Appeal for the parish of Orleans be annulled and reversed," and reinstated the judgment of the district court with slight amendments as to the amount of compensation to which the acknowledged child, Anna Belle, was entitled.

It was definitely held in that case that illegitimate children not acknowledged in the manner prescribed by Articles 203, 204, and 205 of the Revised Civil Code are not entitled to compensation under the Workmen's Compensation law. In the course of our opinion we said:

"1. Section 8, subsec. 2(H) of Act No. 242 of 1928 defined the ``child' who is entitled to recover for the death of a parent as follows: ``(H) The term "child" or "children" shall cover only legitimate children, step-children, posthumous children, adopted children and illegitimate children acknowledged under theprovisions of Civil Code Article 203, 204 and 205. * * *'"

We cannot upset the ruling of the Court of Appeal and that of the district court in the case at bar without overruling the Barranco and Perkins cases, decided by us, and the Gullung, Wells, and Stewart cases, decided by the Courts of Appeal. This we cannot do, for so to do would, in effect be to write out of the Workmen's Compensation Act, as last amended, that which is clearly written into it.

Section 8, Subsection 2(A) of Act 242 of 1928 provides that:

"(A) The following persons shall be conclusively presumed to be wholly and actually dependent upon the deceased employee."

Those persons are (B) a wife upon a husband with whom she is living at the time of his accident or death; (C) a husband mentally or physically incapacitated from wage-earning upon a wife with whom he is living at the time of her accident or death; (D) a child or children under the age of 18 years, or over that age if physically or mentally incapacitated from earning, who are living with the parent at the time of the accident or death of such parent. And it is further provided that:

"In all other cases, the question of legal and actual dependency in whole or in part, shall be determined in accordance with the facts as they may be at the time of the accident and death * * *." and further provided that:

"No person shall be considered a dependent, unless he is a member of the family of the deceased employee, or bearing to him the relation of husband or widow, or lineal descendant or ascendent, or brother or sister, or child."

According to the view expressed by counsel for plaintiff, these provisions of the act, when read together and in connection with that part of the act which says that "The term ``child' or ``children' shall cover only legitimate children * * * and illegitimate children acknowledged under the provisions of Civil Code Articles 203, 204 and 205," are clear and unambiguous, and show that the Legislature did not intend to exclude from the benefits of the act dependent illegitimate children who were members of the deceased's family, but, on the contrary, he argues, show that the Legislature intended to include them in the class entitled to compensation under the act. His argument is that, while legitimate children are not required to prove their dependency because they are "conclusively presumed" to be dependent, this does not mean that illegitimate children are deprived of the benefits of the act if they can prove legal and actual dependency, and prove that they were members of the deceased's family at the time of his death, because the act says that "in all other cases" — that is, cases where dependency is not presumed — the question of "legal and actual dependency * * * shall be determined in accordance with the facts as they may be at the time of the accident and death."

We find no merit in counsel's argument. Referring to the above quoted provisions of the act, we find that it says "No person shall be considered a dependent unless he is a member of the family of the deceased employee, or bearing to him the relation of * * * child."

The children here involved are barred from claiming compensation under the statute for two reasons. The first reason is that they were not members of the family of the deceased, because they are illegitimate children, and the second reason is that they did not bear to the deceased the relation of "children" under the plain terms of the act, which says that the term "children" covers only legitimate children and illegitimate children acknowledged under the provisions of the Civil Code. These children are not included in either class.

They were not members of the family of the deceased. Article 238 [254] of the Revised Civil Code says:

"Illegitimate children, generally speaking, belong to no family, and have no relations; accordingly they are not submitted to the paternal authority, even when they had been legally acknowledged."

Article 254 of the Civil Code of 1825 reads as follows:

"Bastards, generally speaking, belong to no family, and have no relations; accordingly they are not submitted to the paternal authority even when they have been legally acknowledged."

The only difference between the wording of the present Code and that of the Code of 1825 is that in the present Code the words "illegitimate children" are used, and in the 1825 Code the word "bastard" is used. The children involved in the case at bar are not only "illegitimate children," but are "bastards," according to Article 202 of the Code of 1870 and Article 220 of the Code of 1825, since they have not been acknowledged by their father according to the requirements of the Code.

Since these children, being illegitimate, were not members of their father's family although living with him at the time of his death, and since they were not included in the term "children" under the plain language of the act, they cannot be "considered" dependents of the deceased.

Counsel says in his brief at page 5 that "Illegitimate children are legal dependents of their natural father." But these children were not "natural children." Natural children, says Article 202 of the Code, are "Illegitimate children who have been acknowledged by their father." And we have shown that the only form of acknowledgment of illegitimate children by their father is that prescribed in the Code, which form admittedly has not been followed in this case.

In support of his argument that illegitimate children are dependents of their father, counsel quotes that part of Article 240 of the Code which reads:

"Fathers and mothers owe alimony to their illegitimate children, when they are in need."

But illegitimate children who have not been acknowledged cannot claim alimony. Article 242 of the Code says:

"But in order that they may have a right to sue for this alimony, they must:

"1. Have been legally acknowledged by both their father and mother, or by either of them from whom they claim alimony; or they must have been declared to be their children by a judgment duly pronounced, in cases where they may be admitted to prove their paternal or maternal descent * * *."

For the reasons assigned, the judgment of the Court of Appeal dismissing plaintiff's suit for damages under Article 2315 of the Revised Civil Code and for compensation under Act 20 of 1914, as amended, on exceptions of no cause and no right of action, is affirmed.

O'NIELL, C. J., concurs in the ruling that the illegitimate children of the deceased employee have no right of action for damages under article 2315 of the Civil Code, but is of the opinion that they have a right of action for compensation, if they were in fact dependents, under the Employers' Liability Act, notwithstanding an illegitimate child is not "conclusively presumed to be wholly dependent upon the employee" for support.

PONDER, J., dissents.