In this Jones Act death case the decedent's mother, Mrs. Eva Fontenot, sought to intervene in the District Court claiming that she, not an alleged daughter, was the exclusive beneficiary. Mrs. Fontenot now seeks review of that Court's judgment denying intervention on the ground that the daughter, not the mother, was the sole claimant.
Since status as beneficiary depends on whether the alleged daughter is a child of decedent, the precise questions presented are (1) whether the meaning of the term "children" in 45 U.S.C.A. § 51, which is incorporated into the Jones Act by 46 U.S.C.A. § 688,
Before passing on the substantive merits it is appropriate to discuss in some detail the procedure employed by this Court in disposing of this case. Acting under our recently promulgated Rule 18,
The Summary Calendar procedure is part of a program ordained by the Fifth Circuit Judicial Council,
The important thing is that this screening is a judicial one performed by Judges, not the Clerk or other non-judicial staff. It is done through a series of standing panels of three Judges, made up of Active Fifth Circuit Judges only. Cases are not submitted to a screening panel until all briefs are in or the allowable FRAP time has expired. When cases are ripe for screening they are submitted to the screening panels at random, without reference to subject matter, state of origin, or any other criteria.
As an added safeguard against even the remote possibility of oral argument being denied by a single Judge, the procedure calls for unanimous panel action to put the case on the Summary Calendar. Carrying it a step further, if after placing it on the Summary Calendar, any member of the panel has doubts or unresolved differences with the proposed opinion, the case is automatically removed and reclassified for full or limited argument. In other words, the classification of the case and its disposition must be unanimous. This demands informed, individual action by each panel member which will always equal, if it does not exceed, that required for an orally argued case. It bears emphasis also that prior to the release of the Court's decision a written notice under Rule 18 (note 3, supra) is given to counsel or the parties that the case is placed on the Summary Calendar. Also, in every Summary Calendar case an opinion, per curiam or signed, is published and given the same distribution and handling as cases orally argued. Consequently, both for orally argued
The extent to which this procedure has been an effective administrative tool,
This is one of those cases in which the facts present an unusual variation on a familiar melody. Edward Fontenot, the decedent, and Patricia LeBouef were married on October 13, 1959, but they only remained together for about one month. After they separated in November 1959, they never again lived together. At some time in late 1960 or early 1961, Patricia Fontenot began living with Allen Murphy. On December 29, 1961, while still married to Fontenot, Patricia gave birth to a daugther, Romona Gail. Not until May 15, 1962, did Patricia obtain a divorce from Edward Fontenot.
Subsequently, in November 1966, Edward Fontenot was killed in an explosion at sea. In July 1967, Patricia Murphy, as administratrix of Fontenot's estate, filed suit for wrongful death, alleging that Edward Fontenot was the father of her daughter Romona Gail. About one year later, Eva C. Fontenot, the surviving dependent mother of the decedent, sought to intervene in this proceeding or to be designated as the real party in interest on the ground that the decedent had left no widow or children and that she was the sole surviving and dependent parent and therefore the only beneficiary under the Jones Act.
In the areas of wrongful death and federal insurance, there are many federal cases dealing with the rights of children deemed illegitimate under state law. The factual twist in the instant case is that although long separation of the mother from Fontenot at least allows inferences about the child's parentage, she is considered to be his legitimate child under state law
As stated above, the first question is whether state or federal law should be applied to determine the meaning of the term "children" in 45 U.S.C.A. § 51. In a leading case pertinent to this question, Seaboard Airline Ry. v. Kenney, 1916, 240 U.S. 489, 36 S.Ct. 458, 60 L.Ed. 762, the Supreme Court considered particularly the definition of the term "next of kin" as used in § 51. The Court there stated:
240 U.S. at 493-494, 36 S.Ct. at 460, 60 L.Ed. at 765-766.
The Kenney case is not a solitary sentinel, however, for there are many lower court cases involving the problem of defining "child" under federal law. Overwhelmingly, courts declare that in construing the terms "child" or "children" in a federal statute, a court should look to state law.
In Ellis v. Henderson, 5 Cir., 1953, 204 F.2d 173, cert. denied, 346 U.S. 873, 74 S.Ct. 123, 98 L.Ed. 381, this Circuit had occasion to consider the meaning of the term "child" as used in § 9 of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 909. The facts in Ellis are strikingly similar to those of the instant case. The plaintiffs there were illegitimate children whose natural father co-habited with, but was not married to, their mother. The decedent was their mother's lawful husband, and the issue was whether the plaintiffs could be deemed "children" of the decedent for purposes of the Act.
This Court, while noting that "insofar as the definition in the federal statute is complete in itself it controls", recognized that the definition there did not cover the factual situation presented. The Court then reasoned that the problem of determining the meaning of the word "child" in the Act was similar to that faced by the Supreme Court in defining "next of kin" in the Kenney case. Consequently, the Court turned to Louisiana law — in fact, the same provisions as those involved in the instant case — and held that each of the children was a "child" of the decedent, since the decedent legally had made himself their "father" because he had failed to disavow paternity of his wife's children within the time allowed by law.
Merely to round out the decisional picture we acknowledge that the Second Circuit case of Middleton v. Luckenbach S. S. Co., 2 Cir., 1934, 70 F.2d 326, cert. denied, 293 U.S. 577, 55 S.Ct. 89, 79 L.Ed. 674, perhaps suggests a contrary result. The Middleton Court found it necessary, however, to distinguish Kenney on the ground that in Kenney the accident had occurred and the suit had been brought in North Carolina, and the transaction had had a substantial contact with that particlular state. In Middleton, not only did the accident take place upon the high seas, but the victims and their survivors were not even citizens of this country. Moreover, in Middleton the Court pointed out that the Act with which it was concerned (the Death on the High Seas Act), unlike the FELA involved in Kenney, did not provide for concurrent state and federal jurisdiction. In contrast, the instant case involves the Jones Act, which — like the FELA — provides for concurrent jurisdiction. In
Since state law is determinative, the question now becomes the status of the minor child under Louisiana law. Under the Louisiana Civil Code, the husband of the mother is presumed to be the father of all children conceived by her during the marriage. La.Civ.Code Art. 184. The Louisiana Supreme Court has described this presumption as the "strongest presumption known in the law". Feazel v. Feazel, 1952, 222 La. 113, 62 So.2d 119. Therefore, Romona Gail is presumed to be the lawful child of Edward Fontenot in spite of all the asserted physical evidence to the contrary.
As the presumption of legitimacy is clearly applicable here, we come, then, to the question of determining its conclusiveness on the parties before the Court. The Civil Code provides generally that in cases in which the presumption is subject to attack, the presumed father, if he intends to dispute legitimacy, must institute an action to disavow paternity (en desaveu) within a prescribed period after the child is born or after he discovers its existence.
Throughout a long line of decisions the Louisiana Courts have applied these statutory provisions stringently. It is now beyond dispute that if the husband fails to bring a statutory action to disavow, the right to challenge the legitimacy of the children born during marriage becomes extinct. E. g., Evans v. Roberson, 1933, 176 La. 280, 145 So. 539. Likewise, a Louisiana Court of Appeal has stated, "* * * as against heirs of a deceased, where no action to disavow paternity was brought by the deceased during his lifetime nor by the heirs during the two months following the death, the presumption of paternity becomes conclusive." Jenkins v. Aetna Cas. & Sur. Co., La.App., 1935, 158 So. 217, 219 (holding that third persons, too, are bound by the presumption). Accordingly, since neither Edward Fontenot nor his mother (and heir), Mrs. Eva Fontenot, instituted the requisite statutory procedures, under state law Romona Gail is conclusively presumed to be the child of Edward Fontenot. As his child, she is the statutory beneficiary under the Jones Act and is entitled to whatever recovery might be had for his death.
RULES OF THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
In the interest of docket control, the chief judge may from time to time, in his discretion, appoint a panel or panels to review pending cases for appropriate assignment or disposition under Rules 18, 19 or 20 or any other rule of this court.
(a) Whenever the court, sua sponte or on suggestion of a party, concludes that a case is of such character as not to justify oral argument, the case may be placed on the summary calendar.
(b) A separate summary calendar will be maintained for those cases to be considered without oral argument. Cases will be placed on the summary calendar by the clerk, pursuant to directions from the court.
(c) Notice in writing shall be given to the parties or their counsel of the transfer of the case to the summary calendar.
MOTION TO DISMISS OR AFFIRM
Within fifteen days after the appeal has been docketed in this court, the appellee may file a motion to dismiss or a motion to affirm. Where appropriate, a motion to affirm may be united in the alternative with a motion to dismiss. The fifteen day provision may be waived by the court on proper showing of reasonable excuse for delay in filing a motion to dismiss or affirm, upon such terms and conditions as the court may prescribe, or such waiver may be granted sua sponte on the part of the court.
(a) The court will receive a motion to dismiss any appeal on the ground that the appeal is not within the jurisdiction of this court.
(b) The court will receive a motion to affirm the judgment sought to be reviewed on the ground that it is manifest that the questions on which the decision of the cause depends are so unsubstantial as not to need further argument.
The motion to dismiss or affirm shall be filed with the clerk in conformity with Rule 27 of the Federal Rules of Appellate Procedure.
The appellant shall have ten days from the date of receipt of the motion to dismiss or affirm within which to file a response opposing the motion. Such response may be typewritten and four copies, with proof of service, shall be filed with the clerk. Upon the filing of such response, or the expiration of the time allowed therefor, or express waiver of the right to file, the record on appeal, motion and response shall be distributed by the clerk to the court for its consideration.
After consideration of the papers distributed pursuant to the foregoing paragraph the court will enter an appropriate order.
The time for filing briefs pursuant to Rule 31 of the Federal Rules of Appellate Procedure shall not be tolled or extended by the filing of a motion to dismiss or affirm.
FRIVOLOUS AND UNMERITORIOUS APPEALS
If upon the hearing of any interlocutory motion or as a result of a review under Rule 17, it shall appear to the court that the appeal is frivolous and entirely without merit, the appeal will be dismissed without the notice contemplated in Rules 18 and 19.
46 U.S.C.A. § 688
In another context it is significant that in seven of the recent en banc cases the full Court has determined to take each on briefs without oral argument.
NOTICE TO COUNSEL
The Court directs Counsel's attention to the following:
The docket will be called each day and at that time counsel will indicate the time requested within the rules (see FRAP 34). Acting under its local rules Nos. 17, 18 and 19, the Court has classified cases in advance of calendaring. Those cases marked* shall be argued not to exceed 15 minutes per side. The argument time for those cases not so marked will be fixed by the presiding judge within the limits of the rule.
MONDAY, MARCH 24, 1969
* No. 26748. United States of America vs. Verstell Willis, Appellant.
* No. 26715. Willett Wilson, Appellant vs. City of Port Lavaca, Texas, et al. No. 26863. Securities and Exchange Commission v. Affiliated Investment Corp., et al, Appellants.
No. 26747. James S. and Louise H. Holder vs. United States of America, Appellant.
-------------------------------------------------------------------------------------- | CASES FOR SCREENING | CLASSIFIED AS | |--------------------------------------|-----------------------------------------------| | Submitted | Classified | Outstanding | Summary | Limited | | | | to Panels | by Panels | | Calendar | Argument | Full Argument | Total | |-----------|------------|-------------|----------|-----------|---------------|--------| | 346 | 313 | 33 | 93 | 114 | 106 | 313 | --------------------------------------------------------------------------------------
Breakdown of Summary Calendar Cases By Subject Matter Total No. % HC §2255 w/o counsel 21 22.6 HC §2255 w/counsel 4 4.3 Criminal (direct appeal) 21 22.6 Civil 47 50.5 ___ _____ Total 93 100.0
Percentage of Summary % Calendar Cases to total screened 29.7 Percentage of Summary Calendar Cases to total screened (excluding pro se cases) 24.6
45 U.S.C.A. § 51. Thus the statute prescribes a descending order of beneficiaries. See Chicago, Burlington & Quincy R.R. v. Wells-Dickey Trust Co., 1927, 275 U.S. 161, 48 S.Ct. 73, 72 L.Ed. 216, 59 A.L.R. 758.
In De Sylva v. Ballentine, 1956, 351 U.S. 570, 76 S.Ct. 974, 100 L.Ed. 1415, the Supreme Court held that the meaning of the term "children" in the Copyright Act, 17 U.S.C.A. § 24, would be determined by looking to state law.
See also Bell v. Tug "Shrike", 4 Cir., 1964, 332 F.2d 330, cert. denied, 379 U.S. 844, 85 S.Ct. 84, 13 L.Ed.2d 49; Beebe v. Moormack Gulf Lines, Inc., 5 Cir., 1932, 59 F.2d 319, cert. denied, 287 U.S. 597, 53 S.Ct. 22, 77 L.Ed. 520.
See generally Annot., 94 A.L.R.2d 910, 912-14 (1964).
See also Huber v. Baltimore & O.R.R., 1965, D.Md., 241 F.Supp. 646, where the Court held that dependent illegitimate children should be considered beneficiaries under the FELA, unless this result conflicted with a clearly enunciated state policy.
Art. 191. In all the cases above enumerated, where the presumption of paternity ceases, the father, if he intends to dispute the legitimacy of the child, must do it within one month, if he be in the place where the child is born, or within two months after his return, if he be absent at that time, or within two months after the discovery of the fraud, if the birth of the child was concealed from him, or he shall be barred from making any objection to the legitimacy of such child.
Art. 192. If the husband die without having made such objection, but before the expiration of the time directed by law, two months shall be granted to his heirs to contest the legitimacy of the child, to be counted from the time when the said child has taken possession of the estate of the husband, or when the heirs shall have been disturbed by the child, in their possession thereof.