95 So. 709 | La. | 1923
Plaintiffs appeal from a judgment maintaining exceptions of want of jurisdiction and of no cause of action.
The judgment in so far as it maintained the exception of want of jurisdiction was inadvertently rendered, as there was no such plea filed by the defendant:
On the exception of no cause of action, plaintiffs’ suit was dismissed as in case of nonsuit.
Defendant has answered this appeal, directing the attention of this court to the error of the lower court in maintaining the exception to its jurisdiction, and praying for affirmance of the judgment in so far as it maintained the exception of no cause of action.
Plaintiffs are seeking compensation under the Employers’ Liability Act (Act No. 20 of 1914, as amended by Act No. 38 of 1918). The deceased was their illegitimate grandson.
The petition "alleges, substantially, that their said illegitimate grandchild was injured whilst in the employ of the Union Bridge & Construction Company, at Morgan City, La., and subsequently died from said injuries.
That the deceased was the duly acknowledged illegitimate child of their daughter Lydia Adams who, having been reared by them since his infancy, was their adopted child under the “meaning and spirit of the Compensation Act,” and as dependents of said child they are entitled to the percentage of his weekly wages fixed by the statute.
In the alternative, should the court' hold that the deceased was not their adopted child, petitioners aver they are entitled to the
The Millers’ Indemnity Underwriters, as the insurers of the Union Bridge & Construction Company under the Workmen’s Compensation Law, is made the sole defendant upon the theory that the insurance policy constituted a direct contract with plaintiffs.
It is unnecessary to consider all of the grounds upon which defendant bases its exception of no cause of action.
The allegations of the petition are insufficient to support the claim that the deceased was the acfopted child of the plaintiffs. The Workmen’s Compensation Act does not, either in letter or spirit, provide a method for the adoption of children. It merely declares that the terms “child” or “children” shall include, among others, adopted children; that is to say, children who have been legally adopted. “Adoption” is a status created by special laws, the requirements of which must be strictly complied with under penalty of nullity of the proceedings. State ex. rel. Birch v. Baker, 147 La. 319, 84 South. 796 ; Walker v. Myers, 150 La. 986, 91 South. 427 ; Succession of Brand (No. 24632 of the docket of this court) 95 South. 603, ante, p. 195, recently decided.
Pretermitting the question of whether the deceased can be considered to have been a member of the family of petitioners, upon which we express no opinion, the petition does not affirmatively show the nonexistence of the other persons who, under the statute, are entitled to priority of action, excluding plaintiffs, section 8, par. 2, subpar. (h); nor does it affirmatively show that petitioners are mentally and physically incapacitated from earning a living, section 8, par. 2, subpar. (k); nor is it alleged with sufficient clearness that the death of plaintiffs’ illegitimate grandson was caused by an accident arising out of and in the course of his employment'. Where essential allegations are omitted from a petition in a suit under the Workmen’s Compensation Act, an exception of nt> cause of action will be maintained. Whittington v. Louisiana Sawmill Co., 142 La. 322, 76 South. 754 ; Arthur v. Alexandria Lumber Co., 143 La. 207, 78 South. 469.
Por the reasons assigned, it is therefore ordered, adjudged, and decreed that the judgment appealed from, in so far as it maintains the exception of want of jurisdiction, be set aside; and, in so far as it maintains the exception of no cause of action, dismissing plaintiffs’ suit as in case of nonsuit, be affirmed. Plaintiffs to pay the costs of both courts.