This suit was brought to recover damages in the sum of $10,000 for injuries which resulted in the death of plaintiff’s child, caused by a fall of lumber of defendant, which had been stacked on the banks of the New Basin Canal in this city.
Plaintiff’s complaint is that on an afternoon in October, 1903, while she was passing on the highway, her little girl stepped alongside of the lumber pile before mentioned, and was knocked down by lumber which fell and injured the child, causing her death in about 24 hours afterward.
She charges that defendant’s negligence and carelessness was the cause of the death of her child.
Defendant, by way of exception, pleaded that plaintiff disclosed no cause of action. In the answer defendant reserved his exception, and thereafter denied that plaintiff was married to William Garrett, and alleged that she never was his wife; that Esther Garrett, the little girl who was injured and died from the injuries, was not the legitimate issue of a marriage between William Garrett and plaintiff. The plea of general denial was filed, and defendant further urged on the merits that boths plaintiff and her little daughter were negligent, and by their own negligence brought on the casualty.
The judge of the district court condemned *613the defendant to pay $1,500 to plaintiff. From this decision the defendant appealed.
The legitimacy vel non of plaintiff’s daughter is the first issue that presents itself.
Plaintiff was unquestionably the mother of the child.
The defendant did not especially attempt to prove that there was no marriage between plaintiff and William Garrett further than to introduce the certificate of marriage between plaintiff and her present husband, and the copy of another solemn act, which was a confirmation at the church before a priest of the marriage with Lynch, celebrated before a justice of the peace. She signed each of these acts as “Miss Rose Duffy.”
Plaintiff has not testified at all in the case, and no attempt was made to explain why these acts were signed as just mentioned. If it was a mere oversight or signed in the way that it was for any particular reason, it was not explained.
Defendant rested his case on this point on that evidence, and took the position that the onus of proof to show marriage was with the plaintiff; while, on the other hand, the plaintiff appears equally as confident that the onus of proof that she was not married was with the defendant
In our view, the onus of proof was with the plaintiff. It devolved upon her, in order to meet the issue tendered, to produce evidence of her marriage. In the absence of all proof of marriage, in the face of an absolute denial, the legitimacy of a child will not be presumed where one of the parties to the asserted marriage is a party to the suit and makes no attempt to prove the marriage.
True, the legitimacy of a child born during the marriage is fixed, but it is otherwise if there was no marriage and parties entirely fail to prove marriage.
In Castagnie v. Bouliris, 43 La. Ann. 943, 10 South. 1, plaintiffs in a petitory action were opposed by defendant’s plea of illegitimacy on the ground that plaintiffs were not the issue of any marriage. The court held in that case that it devolved upon plaintiffs to prove a marriage in order to fix their status as heirs. Having failed in this, their claim was rejected.
The same was substantially the ruling in the Fletcher Succession, 11 La. Ann. 61.
It was also decided in another case that the plaintiff who sought to prove that property belonged to a community (to which it was claimed that it belonged) should establish the marriage as conclusively as any other fact. McConnell v. City, 15 La. Ann. 410.
The court in the Jackson Case, 46 La. Ann. 236, 14 South. 518, said:
“The testimony as to the marriage, * * * particularly on a special denial of that fact in defendant’s answer, is entirely too weak to justify judgment.”
To the same effect is Alvinest v. Railroad, 107 La. 138, 31 South. 675.
The burden of proof was with plaintiff particularly as she signed two solemn acts m her maiden name; one at the time she was married to her present husband and the other a short time afterward.
There is a difference between a child born out of wedlock and one born during marriage. In regard to the former the allegation that he was born out of wedlock under the circumstances here puts the burden upon him of proving his birth during marriage, as the presumption of legitimacy arises only regarding the child born during marriage.
In this state marriage is a formal declaration or contract by which act a man and woman join in wedlock.
It must be in writing. The spouses are not ignorant of the place where the marriage was celebrated, and it should always be possible to produce a copy, or account for its absence.
The proof of marriage is relaxed as to third persons in certain contingency. But as to the spouses there is no reason why either of *615them should not easily prove the fact of marriage. The marriage of plaintiff to William Garrett, if there was a marriage, surely could have been easily proven, as it was not of an ancient date.
If one of the parties chooses not to recognize a former marriage, there can be no remedy for the omission. There is no evidence here sufficient to enable the court to pronounce a decree recognizing a marriage.
We leave the question of marriage and take up the next issue presented in the case.
In her petition the mother declared to the court that her child had been killed.
If the maternity of a child may be acknowledged after the death of the child, it remains that, considered as a child acknowledged, she was not thereby legitimated.
Even if the child has been acknowledged, the mother is not entitled to stand in judgment. A child must have been legitimated in order that the mother may stand in judgment. Was the child legitimated? It was not. Our reasons are the following:
The right' of action, under Act No. 71, p. 94, of 1884, survives in the surviving mother and father. “The right of this action shall survive in case of death in favor of the minor children.” Id.
This does not include the natural mother and the natural father.
The articles of the Civil Code regarding the mother of legitimate children all refer to a lawful mother. The article of the Code relating to natural mothers and natural fathers is separate from those relating to the lawful mother and father.
The two, the mother and the natural mother, are treated in the Code differently or from a different point of view; one from the point of view that she has a natural right, the other that it is a statutory right extending no further than the terms of the statute.
The following are some of the marked differences between the natural child and the legitimate child: The natural heir is to be recognized and to be placed in possession under special provisions of the law. He is a stranger to the succession from which he inherits until permission is obtained to exercise the right of- an heir. It is different with the legitimate heir.
Originally the right to damages for personal injuries was not heritable. The statute has to some extent made it heritable, but it does not express the intention to include the natural mother as a person in whom the right survives, and without some expressed declaration in that respect it cannot be considered as secured under the terms of the statute. The terms of the act cannot be extended so as to include a natural mother or a natural offspring.
Legitimate relationship was the legislative intent.
The right does not survive in the mother further than it does in the natural child. Civ. Code, Art. 3556, No. 8.
Natural children, though recognized, are not children properly so called. The same is a logical conclusion as relates to the mother of the natural child. While she is the mother properly so called, she inherits from the natural child under the special provisions of our Code. Articles 256, 261, 212.
But this can afford no comfort to the plaintiff, for the right of inheritance is special and embraces only such rights as are in themselves heritable. The statute did not enlarge the rights of a natural mother or the mother of a natural child, and did not add to their number or extent. It only provided for the survival of certain designated rights, and as thus designated it includes the mother, and not the mother of the natural child.
Learned counsel for plaintiff places great reliance in Marshall v. Wabash, 120 Mo. 275, 25 S. W. 179.
We have considered the decision in which it seems contrary views were entertained and *617expressed. The -contention states that the statute of Missouri is the same in every respect as ours — a statement which we accept as correct. True, the statute of Missouri as interpreted by her courts is the law of that state, but it goes no further. It is persuasive not to a greater extent, however, than the decisions in other jurisdictions interpreting an independent statute-without regard to prior laws and prior jurisprudence in the state in which the statute has been adopted.
The courts of other states, as relates to a statute in itself, without reference to the laws and jurisprudence, are equally as competent to arrive at a correct solution. Moreover, the decision supra seems to stand alone.
We find contrary views to it in the following:
Am. & Eng. Ency. of Law, vol. 5, pp. 1095, 1096; vol. 8, p. 895, No, 2, note 3. See, also, Words & Phrases, vol. 2, pp. 1117, 1120, 1123, 1135, Verbo, “Legitimate Children.” Tiffany on Death by Wrongful Act, § 85, note 15. Black, Law & Practice in Accident Cases, § 109, Note 3.
A different view-than is expressed in the Missouri case is expressed in Robinson v. Georgia R. R. Co. (Supreme Court of Georgia, in 1903) 43 S. E. 452, 60 L. R. A. 555, 97 Am. St. Rep. 156. Also A. & A. R. R. Co. v. Williams (Miss.) 28 South. 853, 51 L. R. A. p. 836, 84 Am. St. Rep. 624; I. C. R. R. v. Johnson (Miss.) 28 South. 753, 51 L. R. A. 839 ; McDonald v. P. C. C. (Ind.) 43 N. E. 447, 32 L. R. A. 309, 55 Am. St. Rep. 185.
“Child,” nsed in the statute, means legitimate child. McDonald v. Southern R. R. (S. C.) 51 S. E. 139, 2 L. R. A. (N. S.) 640 (1905) 13 Cyc. 337.