I concur in that part of the majority opinion dismissing the suit instituted by the plaintiff for damages for the benefit of the two children born to her and the deceased out of wedlock under the provisions of Article 2315 of the Revised Civil Code, but I do not subscribe to that portion of the majority opinion dismissing her suit for compensation for these children (at the time this suit was filed 4 years and 14 *Page 109 months respectively) who had been born while the plaintiff and the deceased were living together as man and wife under the same roof and were, at the time of his death, actually dependent upon him for support.
As I understand the holding of the majority opinion, these children, being illegitimate, cannot be considered as children of the deceased under the definition of "children" in the act nor as members of his family or his legal dependents because, in Article 238 of the Revised Civil Code, it is provided that "Illegitimate children, generally speaking, belong to no family, and have no relations * * *"; and for the further reason that they have no right to demand alimony from their parents because they have not been legally acknowledged by them nor judicially pronounced to be their children, in accordance with the provisions of Article 242 of the Revised Civil Code.
In reaching this conclusion, the author of the majority opinion has given the most narrow and restricted meaning of the articles of the Revised Civil Code to the provisions of the Employers' Liability Act instead of endeavoring to ascertain the intention of the legislature in enacting this legislation.
While it is true that this court affirmed a judgment denying parents compensation for the death of their illegitimate son who had never been acknowledged by them under the provisions of Article 203 of the Revised Civil Code in the case of Perkins v. Brownell-Drews Lumber Co., 147 La. 337, *Page 110 84 So. 894, and concluded that an illegitimate minor son of the illegitimate daughter of the concubine of the deceased was not a legal dependent in the case of Beard v. Rickert Rice Mills, Inc., 185 La. 55, 168 So. 492, 493, it is also true that in both of these cases the court failed to give consideration to the intention of the legislature in enacting the Employers' Liability Act as reflected by the act as a whole. In fact, in the Rickert case the court refrained from doing so for its conclusion was reached from a mere reading of the act without any reference to pertinent sections thereof. "Having reached this conclusion," the court said, "it is unnecessary to consider whether or not the minor, James Willie Gould, was actually a member of the deceased employee's family at the time of the latter's death or whether or not he was actually dependent upon the deceased for total or partial support at that or at any time."
In the very recent case of Archibald v. Employers' Liability Assurance Corporation, 202 La. 89, 11 So. 2d 492, 493, however, this court, in awarding compensation under the Employers' Liability Act to the father-in-law, mother-in-law and two sisters-in-law of the deceased employee who had been living with him at the time of his death and were actually dependent upon him for support, did give consideration to this legislative intent. In that case it had been the defendant's contention that "no one can be considered as a legal dependent except a person who, prior to the death of the employee, had the legal right to demand support from him," but we concluded that "It *Page 111 is well settled that the Workmen's Compensation Act is to be liberally construed with the view of carrying out its purpose. Undoubtedly, the Legislature intended to allow compensation to those who were dependent upon an employee for support," thus, inferentially at least, overruling the Perkins, Davis, and Rickert cases. At any rate, it shows this court has adopted a broad and liberal view in construing this legislation in order that the legislative intention for its enactment may be arrived at.
In the Archibald case the court very aptly pointed out:
"From the history of this type of legislation, its purpose is primarily to abolish the Common Law system relating to injuries to employees as inadequate and to substitute a system based on high conceptions of man's obligations to his fellow man in order that the loss incurred as a result of the employee's injury might be charged to the industry as an element of the cost of production, so that the burden is finally borne by the community in general. Puchner v. Employers' Liability Assurance Corporation, 198 La. 921, 931, 5 So. 2d 288.
* * * * * "The plaintiffs' right to recover compensation rests entirelyupon whether or not they are dependent members of the family ofthe deceased employee within the meaning of the Act. Just what relationship must exist between individuals to constitute a family or to make each individual a member of the same family depends on the legislative intent in enacting the statute. Thevarious definitions of what constitutes a family are of littleaid in determining *Page 112 the legislative intent in the Act under consideration * * *." (Italics mine.)
Obviously, the definition in Subdivision (H) of Subsection 2 of Section 8 of the act, as amended by Act No. 242 of 1928, p. 387, that "The term `child' or `children' shall cover only legitimate children, stepchildren, posthumous children, adopted children and illegitimate children acknowledged under the provisions of Civil Code Article 203, 204 and 205," is intended to coveronly those dependents who are conclusively presumed to bewholly dependent upon the deceased employee, for, in Subdivision (c) of this same section, it is provided that "In all othercases, questions of legal dependency in whole or in part, shallbe determined in accordance with the facts as they may be atthe time of the injury * * *." Act No. 20 of 1914. (Italics mine.)
That the legislature foresaw its inability to name all of the possible legal dependents who might actually be dependent upon a deceased employee coming under the provisions of this act is clearly brought out under Paragraph 12 of Subsection 1(F) of Section 8, Act No. 243 of 1916, p. 516, where is contained the stipulation that "Compensation shall be payable under this schedule to or on account of any * * * other dependent memberof the family not otherwise specifically provided for * * * while such * * * other dependent member of the family * * * is under the age of eighteen years." (Italics mine.)
It is my opinion, therefore, that these two minor children are legal dependents of *Page 113 the deceased within the meaning and contemplation of the act and inasmuch as the one upon whom they were dependent for a living lost his life during the course of his employment, the compensation provided for in the act should be passed on to industry and ultimately to the public, as contemplated by the act, and they should not be left to shift for themselves or to become public charges.
For these reasons, I most respectfully dissent from this portion of the majority opinion.