Willis v. Winford Co. , 1978 La. App. LEXIS 2793 ( 1978 )

PRICE, Judge.

Appellant has not shown the trial court was in error in rendering the summary judgment dismissing her action for the wrongful death of her major son because of her testimony in a deposition admitting her son was survived by three illegitimate children. Under the holding in Warren v. Richard, 296 So.2d 813 (La.1974) the fact that her deceased son left children, whether legitimate or illegitimate, precludes plaintiff from recovering for his wrongful death under La.C.C. Art. 2315.

Plaintiff’s counsel contends on appeal that the deposition of the ninety-two-year-old plaintiff standing alone is insufficient proof of no genuine issue of material fact. Plaintiff’s testimony in the deposition is clear and lucid and is positive in establishing that her deceased son left three illegitimate children who presently live in Shreveport. No counter affidavits were filed to contradict the allegations made in the motion for summary judgment. The copy of the succession proceedings filed by plaintiff in opposition do not negate or contradict the allegation that he left illegitimate children.

For the reasons assigned, the judgment appealed is affirmed at appellant’s cost.