Bradley v. Swift & Co. , 10 La. App. 25 ( 1928 )

WESTERFIELD, J.

On February 27, 1928, When these cases were before us originally, in an opinion rendered at that time we decided both cases in favor of the defendant, Swift and Company. The facts are stated in that opinion. It is only necessary, for our present purpose, to repeat that William Balthazar was killed in the course of his employment by the defendant, Swift and Company, and that Elizabeth Bradley, his widow, and Paul Balthazar, his father, claimed compensation under the Employer’s Liability Act (No. 20 of 1914, as amended). We decided that the wife could not recover because she was neither living with nor dependent upon her deceased husband to any extent at the time of his death (Section 8, subsection 2, paragraph (e), Act 216 of 1924) and that the father could not recover because of the existence of a surviving wife (Section 8, sub-section 2, paragraphs (g) and (h) of Act 216 of 1924). The Supreme Court issued a writ of review and in its opinion handed down October 29, 1928, 119 So. 37, the conclusion of this Court with respect to the widow, Elizabeth Bradley, was affirmed, but it was held that the mere existence of a surviving wife would not preclude the father from claiming compensation, it being necessary, under the compensation law, that the surviving widow be entitled to compensation in order to exclude the father, and that, since the wife in this case was not entitled to compensation, the father’s claim must be considered. The case was remanded to this Court for the purpose of determining the legitimacy of the deceased son and the dependency of the father, those questions not having been heretofore determined, the view of the matter taken by this Court rendering their consideration unnecessary.

Counsel for defendant admits the legitimacy of the deceased’s parentage and relies solely on the defense that, at the time of the death of William Balthazar, Paul Balthazar, his father, was not dependent upon him to any extent.

In order for the father to De deemed dependent upon his son, it is only necessary to show dependency in the slightest degree. In the record we find ample testimony which, if believed, would support the father’s case, and were it otherwise, and the question of whether the evidence, tending to prove dependency, preponderated in the father’s favor in doubt, we would be inclined to resolve that doubt in the father’s favor, conceiving it to be the proper judicial spirit in which all paternalistic legislation, such as the compensation law, should be interpreted and applied. But we are absolutely unable to believe the witnesses. The demand upon our credulity is too great. For example, it is said that the deceased, with unfailing regularity, over a period of twenty years, made quarterly remittances of $35.00 each to his father, and that these remittances were never made direct, but always conveyed to the father by his sister, Florence Prescott. Such is the testimony of the father and daughter. The father, an old and illiterate negro, seemed to derive much satisfaction from the use of the word “quarterly,” which was, apparently, a new addition to his meager vocabulary and used it in reply to a number of questions to which the word was in no sense responsive. In addition to the testimony of the father and the daughter, there is the evidence of a nogro preacher, living in St. Mary Parish, to the effect that he understood that William contributed $4.00 a week to his father, this amount being somewhat in excess of the quarterly payment testified to by the other witnesses. In our former opinion, referring to Elizabeth and William Bradley, we said:

“Elizabeth Bradley, or ‘Lizzie’ as she is frequently styled in the testimony, married the late William Balthazar in the Parish of St. Mary. Both were illiterate negroes and in lieu of their signatures to their marriage certificates affixed their marks. William proved to be inconstant and after a short residence with his bride, left for New Orleans, where for twenty years he led a rather purposeless and aimless existence, sometimes employed, and more often otherwise, but ever and always, so far as the record shows, impecunious. Shortly before his death he, for the first time obtained steady employment, and with the defendant.”

A reconsideration of the record confirms us in that view. William Balthazar, the deceased, was a shiftless, do-less, lazy negro, who lived from hand to mouth; who neither sought, nor found steady employment until shortly before his death, with the defendant.

Charlotte Jenkins, who claims to have known the deceased for more than twenty years, testified to this effect, saying, in addition, that she kept him at her home and that otherwise he would have had no place to stay, no place to eat, or sleep. It is true that we rejected the testimony of this witness in the former hearing, when she testified to the ability of the deceased, William Balthazar, to read and write and upon the principle ‘‘falsus in uno, falsus in omnibus’’ little confidence can be placed in her unsupported evidence. But the claim made by the father and daughter concerning the clock-like regularity of these quarterly payments, and the uniformity of method employed we simply cannot believe. The deceased reached the peak of his earning capacity just before his death, when he earned about $54.00 per month, or $158.00 quarterly. To believe that out of this slender income he gave his father more than 20% would be difficult enough, but this was his maximum income which he enjoyed only a short time, and when his probable average earning is considered, the difficulty- amounts to an impossibility. If we credit the deceased with the highest sense of filial obligation his income was so precarious that it must have often fallen far below the alleged quarterly payments, many times reaching zero, consequently however willing, he was not able to pay.

For the reasons assigned the judgment appealed from is affirmed.