Weber v. Aetna Casualty & Surety Co.

PETITIONER:Weber
RESPONDENT:Aetna Casualty & Surety Co.
LOCATION:Iowa State Penitentiary

DOCKET NO.: 70-5112
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: Louisiana Supreme Court

CITATION: 406 US 164 (1972)
ARGUED: Feb 28, 1972
DECIDED: Apr 24, 1972

ADVOCATES:
Vanue B. Lacour – for petitioner
W. Henson Moore – for respondents

Facts of the case

Question

Audio Transcription for Oral Argument – February 28, 1972 in Weber v. Aetna Casualty & Surety Co.

Warren E. Burger:

We’ll hear arguments next in 70-5112, Weber against the Aetna Casualty.

Vanue B. Lacour:

Mr. Chief Justice —

Warren E. Burger:

Mr. Lacour.

Vanue B. Lacour:

— and may it please the Court.

This case is here on certiorari to the Supreme Court of the State of Louisiana.

The sole issue before the Court is whether or not the denial of workmen’s compensation to dependent illegitimate children of a single family unit, solely because they are really illegitimate deprives such illegitimate children of equal protection under the Fourteenth Amendment.

I’ll sketch the facts of the case briefly.

Henry Clyde Stokes was the father of four legitimate children born of the marriage with a lawfully wedded wife from whom he was separated.

He became the paramour or common-law husband of Willie Mae Weber.

He moved his four illegitimate children into the house with her and lived there as a family unit.

Warren E. Burger:

When you say common-law, that did not mean —

Vanue B. Lacour:

That don’t mean — I mean out of wedlock wife if I may put it that way.

Warren E. Burger:

He could not be a common-law husband.

Vanue B. Lacour:

There are no common-law marriages in Louisiana.

Potter Stewart:

And his lawful wife was still living?

Vanue B. Lacour:

His lawful wife was still living but they were separated not judicially separated or divorced.

While living with Willie Mae Weber, they were born one child of their illicit or out of wedlock relationship.

Then while they were living, he was employed as a truck driver.

He was killed on the job and of course, the scope of his employment had no dispute was that he was covered by workmen’s compensation under Louisiana law.

And sometime after his death, there was born to Willie Mae Weber another child conceived out of the relationship with him prior to his death.

Now —

Potter Stewart:

Is there any question Mr. Lacour about that second child if that second child had been a legitimate child, although a posthumous child?

Would that child had been counted as a child under the workmen’s compensation?

Vanue B. Lacour:

Yes, he would have.

But if he is a posthumous child and an illegitimate child, Louisiana does, even though it isn’t involve in this case, Louisiana does draw a distinct between a posthumous illegitimate and a posthumous legitimate.

A posthumous legitimate child will be paid workmen’s compensation but not a posthumous illegitimate, which is another discrimination not emphasized in the case however, because there are larger discriminations here which we could not even get to this.

Warren E. Burger:

But it is not partly related in a practical sense to the problems of proof?

Vanue B. Lacour:

That is argued, I suppose so; however, without being suspicious, I suppose the proof of paternity you assume it.

You prove it by outward manifestation of family membership.

In this instance, the posthumous child that the mother conceived the child, she was pregnant had no doubt in the record, it’s not in dispute that Henry Clyde Stoke, the deceased employee was the father of the child.

Vanue B. Lacour:

Now —

Warren E. Burger:

Has Louisiana in any case you know of ever given any special status to extra judicial acknowledgements, that is letters, affidavits, things of that kind, acknowledgements of paternity?

Vanue B. Lacour:

Not of paternity, of maternity, even though Louisiana law requires — well, it’s earn settle in Louisiana as to whether or not what we call an informal acknowledgement of an illegitimate child, lifts that child from the object of lowest level of which the Civil Code say it is known by the escalation basket, whereas the child acknowledged either formally by notarial act or some formal act or informally the mother, because of maternity doesn’t leave open the question of uncertainty as to parentage.

Informal acknowledgement of maternity is accepted on whereas there is some reservation with respect to informal acknowledgement of paternity.

Now —

Byron R. White:

Mr. Lacour, is it — in the amicus brief, I think it’s a statement that these out of wedlock children could not have been acknowledged under, is it Article 204?

Vanue B. Lacour:

204 of the Louisiana Civil Code.

Byron R. White:

Do you agree with that?

Vanue B. Lacour:

That is correct; that is correct.

The provision for acknowledgement, for formal acknowledgement, has a restriction.

The restriction is that a parent may not acknowledge a child, either informally or formally, and we are dealing with formally here if at the time of conception, there was an impediment to the marriage of the parents of the illegitimate child.

In this instance, sir, there would have been a bigger but myriad mode of conception, and the impediment was that Henry Clyde still was lawfully married to another woman and therefore, these children could not have been acknowledged.

And this is a distinction from last term’s case of Labine against Vincent?

Vanue B. Lacour:

That would be if we are going to focus our attention upon what is argued as being the distinction between Labine and Levy wherein Labine apparently is saying that there was insurmountable barrier in Levy, whereas there is not an insurmountable barrier here and that the children could be acknowledged.

Of course, you will see that there is an insurmountable barrier here when you look at what is said in the amicus brief and what the Louisiana Civil Code actually provides under 204, the insurmountable barrier here because each children couldn’t even be acknowledged.

Byron R. White:

What is the purpose of the barrier in the code you think?

I don’t know if it’s being present in other — in common law states anyway?

Vanue B. Lacour:

No.

As I recall it, it’s a carry on through long history from the Civil Law or sort of — I guess, for me to discourage, which was rejected in Levy to discourage the illicit relationship we would produce or also to prohibit the bringing into up to the statehood of a child, a child where the parents where actually married to each other.

It’s also the law where it’s constitution on that an incestuous marriage would prohibit or prevent the acknowledgement of the child.

Also, to the extent that at the time when it was constitutional, a misogynous (ph) marriage or misogynous relationship, misogyny, they would have a difference in rate.

It would have been an impediment to the marriage consequently.

We have a long line of cases where a lot of children couldn’t be acknowledged.

Now, back to the —

William H. Rehnquist:

Mr. Lacour, do you make a separate contention here that that rule of Louisiana law respecting legitimation distinguishing between the case where there was an impediment to the marriage of the parents or there wasn’t, that that itself is a violation of equal protection?

Or do you concede that is rational based statute?

Vanue B. Lacour:

I concede that that is a rational basis.

What we are saying here, we take the position at the trust of Labine versus Vincent is not to reject or overrule Levy; that Levy, which held that on Article 2315, which is the Louisiana basic tort law.

All of other law for negligence or other tort claim arise or get its source from Article 2315 of Louisiana Civil Code, which provides that roughly whoever is injured as result of the act of another is entitled to reparation.

And then Louisiana, through the years enacted wrong had a wrongful-death statute to give an action for tort for death to survivors.

Vanue B. Lacour:

And as the Court knows in Levy, the plaintiffs were illegitimate children of the mother who died as result of an alleged tort.

And the denial of a tort cause of action to those children would have to be violative of the Equal Protection Clause.

Now, what we are saying here if Levy is still the law, then Labine, it seems to me, took pain to say that Levy is still the law.

And what Labine is saying is that the denial of inheritance right is not the same kind of denial and deprivation that in a tort cause of action, the child, as Justice Douglas points out, is nurtured by the parent, is not a non-person.

The child is loved and he loses the same thing when he loses his parents, his mother, in that instance, the legitimate child.

Now, under Louisiana law it really wasn’t compensation law although all the other state, the Workmen’s Compensation law is the replacement for the tort law.

Now, so 2315 could not be used against the employer here.

Now I need to go into just a little more explanation of the fact, because there is a tie-in between with Workmen’s Compensation and the Louisiana Tort Law.

What happened further in this case was that the grandmother of the four legitimate children sought a tort action against a third party tortfeasor who was responsible for the acts of death in which the employee was killed.

Do you still have your cause of action against your third party for tort even though you do have your worker’s compensation?

But whatever Workmen’s Compensation you recover from your third party tortfeasor, you owe it, the beneficiary will owe it to the employer, i.e. to insure under the right of subrogation.

So the tort suit was settled, the maximum compensation payable in Louisiana in any answers at that time was $14,000.00.

The tort claim exceeded $14,000.00.

The four legitimate children then came back into the State Court and dismissed their claim for Workmen’s Compensation on the basis that there was nothing for them to recover anyway, because if they recovered, the right would belong to Aetna Casualty and the truck driving concerned the employer.

Then the employer and its insurer moved to dismiss the suit on the ground that there was no — the Workmen’s Compensation had been exhausted, and we had, of course, pleaded that the denial of Workmen’s Compensation to the two illegitimate children would constitute the denial of equal protection and the court — the Trial Court held that they were entitled to Workmen’s Compensation but only if there was any left after the four legitimate children had used it all up.

So from that we appeal on that and what happens then is the Supreme Court of Louisiana interpreting the Workmen’s Compensation Law of Louisiana is saying that you have six children born of a man who are his dependents.

They are supported by him.

They are all — they are member that acted the family unit which he is maintaining at the time of his life and at the time of his death as a family unit consisting of six children.

The out of wedlock wife or the mother of the two illegitimate is also the stepmother of the legitimate.

So everything is equal insofar as the nexus or the relationship between the father and the six children.

The only difference between the four who got the Workmen’s Compensation and the two who did not is that the four was legitimate and the other two were illegitimate.

Warren E. Burger:

Now that is — assuming that the record supports that statement Mr. Lacour in this case that would not necessarily be true with respect to all illegitimate children, would it?

As a general proposition, they aren’t always under the cover and protection of the father?

Vanue B. Lacour:

No, if acknowledged; if they were acknowledged, acknowledged illegitimate children would be beneficiary under the Louisiana Workmen’s Compensation Law.

Formerly acknowledged illegitimate, if those children have been acknowledged they would have been entitled to Workmen’s Compensation.

If I understand Mr. Chief Justice question correctly.

I think I have just about covered the essential feature of the case except, I have to reemphasize that we believe what we are arguing here is exactly what Labine, that is the Louisiana case involving inheritance, the reservation of Labine.

We believe also that if the answer insurmountable barrier is the distinction, if I am clear in pointing out what had happened in this case, there is no opportunity for the two illegitimate children to get any Workmen’s Compensation here unless by sheer accident, because if I may point out, the $14,000.00 maximum Workmen’s Compensation was never paid by the compensation carrier; it was paid by the third party tortfeasor.

The compensation, the employer and the insurer got credit for it because automatically they would get credit for under Louisiana Workmen’s Compensation Law.

Ordinarily, Workmen’s Compensation benefits are paid weekly.

Vanue B. Lacour:

It would have been $35.00 a week here for 400 weeks.

Here it was not done that way, there is no money coming in so that if one of the legitimate should die short of reaching adulthood, one of the illegitimate would step in, that’s what it meant under Louisiana law.

It is not exhausted.

Here, it’s all gone and so the Court just effectively closed the door against the two illegitimates and saying your six children living at one family unit all equally supported by the father, no apparent difference in his treatment in what he would have wished for them to have, but because the two are illegitimate, the four gets all of the Workmen’s Compensation and the other two are left upon (Inaudible).

Mr. Lacour, would your case be any different if 204 were not present, if the barrier of 204 were not there, and he just had not acknowledge his children.

Vanue B. Lacour:

Yes, it would have been; it would have been.

If 204 — if there had not been an impediment, he could have acknowledged them, and if he had acknowledged them under Louisiana Workmen’s Compensation Law, they would have been entitled to.

What if it could happen?

Does your case would be any different?

Vanue B. Lacour:

It wouldn’t have been any different.

Well, this is my question.

If he could have but didn’t?

Vanue B. Lacour:

If he could have but didn’t then they would have been excluded from Workmen’s Compensation.

In extent, I think perhaps we need to clear this point.

Would you still be acting on their exclusion or not?

Vanue B. Lacour:

Yes.

He could have acknowledge them but didn’t.

Vanue B. Lacour:

Right.

And then he dies, was these unacknowledged children be entitled to —

Vanue B. Lacour:

We would still be arguing this Mr. Justice.

We would still be arguing that you are excluding them because they are illegitimate, and if they are, in every way, equally dependent upon the father and it is established and undisputed in the record that they are his children.

Then the exclusion of them from participation in Workmen’s Compensation along with the other children who had no more dependency upon the father than they had would still be an invidious, arbitrary and capricious without any basis at all other than they are illegitimate and the other four are legitimate.

Except that he had a way to acknowledge them and didn’t pursue that way?

Vanue B. Lacour:

Well, you would say then that that would probably be the argument under Labine versus Vincent that that he had a way.

But I am not willing in my argument here that I think is more eye catching than the real distinction of Labine.

I don’t think that insurmountable barrier which was pointed out by the Court there is it really the real reason as you read underneath here that inheritance is — if they are not involve the same kind of nexus and attachment in human relation between people that parent and children do and that when you deny talk cause of action to a child whose parent’s life has been snuffed out, you are denying reparation for a deprivation.

But when you deny the law of succession and the state say you go this way or that way, the state is not pinpointing and saying you lost something but you can’t get any reparation, because you’re illegitimate.

The state is just saying, you don’t fall in that class under who ruled you would get a right of inheritance, and I think the real distinction between Labine and Vincent is not the insurmountable barrier but the real invidiousness of telling one who has lost his parent, you cannot get a reparation that one is entitled to from lost of the parent merely because you are illegitimate.

Warren E. Burger:

Thank you Mr. Lacour.

Vanue B. Lacour:

Thank you.

Warren E. Burger:

Mr. Moore.

W. Henson Moore:

Mr. Chief Justice and may it please the Court.

The counsel in this case looked at this particular case before you is somewhere in a gray area either between Levy versus Louisiana, Labine versus Vincent and perhaps in a gray area on the either extreme of these two cases.

It’s the opinion of the respondents that there is no invidious discrimination in this case.

I’d like to draw a contrast in this case with Levy and Labine.

First, in the Levy case you had a tort situation.

The Louisiana law has drawn this distinction and has not extended Levy beyond tort.

In the Labine decision, this Honorable Court noted that this is while the distinction; Levy applied the tort.

Secondly, in the Levy case it was pointed out quite forcefully the wrong doer was about to go scot-free.

No one was going to recover.

No tortfeasor was going to have to pay for the death of the mother in the Levy case, and the case at bar at this time there is no wrong doer.

This is Workmen’s Compensation.

There is no question of fault.

There is no question of someone getting all free.

However, I might point out as Mr. Lacour did.

Under Louisiana’s Workmen’s Compensation Law, the employer is entitled to recover Workmen’s Compensation benefits he pays to an employee from the tortfeasor, if there is a tortfeasor who injured the employee.

We now, as respondents, have lost that right because of one year proscription in Louisiana law.

This action took place in 1967 therefore —

Potter Stewart:

But you got a complete setoff haven’t you from —

W. Henson Moore:

Well, we got that —

Potter Stewart:

We got the recovery by the four legitimate children?

W. Henson Moore:

We got that but I don’t think it’s clear at all that what should happen if this Honorable Court should reverse this decision.

It may well be, we’ve got to turn right around and pay the two children, that Mr. Lacour represents, their fair share, and then try to recover that back from the tortfeasor, which we can no longer do, we are barred by one year proscription.

Potter Stewart:

It wasn’t 65% of the wages the maximum whether or not they are four children or six children?

W. Henson Moore:

That’s correct.

That’s the maximum amount of wages paid on Louisiana law.

Potter Stewart:

And the —

W. Henson Moore:

Workmen’s Compensation.

Potter Stewart:

And this covered more the four they covered more the maximum and you got a complete set off, am I wrong?

W. Henson Moore:

I have the complete set off as to those four, Your Honor.

Potter Stewart:

Well, it isn’t 65% of the maximum.

W. Henson Moore:

That’s right.

Potter Stewart:

And whether therefore it is 6 or 12 children?

W. Henson Moore:

Well, but what I’m trying to say is Your Honor, it is not clear under our law at all whether or not I will still be liable to Mr. Lacour’s class for Workmen’s Compensation.

The set off I got, applied to the four people on Louisiana law at the time this case was decided who could recover compensation.

Mr. Lacour’s class could not, and so it is not clear at our law then, in other words, if you reverse this case and they will be, but I have now pay his clients and the set off by had against the four legitimate children is no protection to me now as to these two children and therefore the tortfeasor one year is going by and so this is an interesting quarrel, if this case is reverse the tortfeasor will get all scot-free as far as the liability for compensation to two more children.

Now, the next point I would like to point out and distinction is the fact of this unacknowledged illegitimate children situation.

Under the tort law of Louisiana part of the Levy whether you are acknowledged or unacknowledged may draw a difference.

If you’re illegitimate you could recover no tort benefits, only legitimate children could, born in wedlock or adopted.

This is not true in the Compensation Law of Louisiana.

If you are, in fact, an illegitimate unacknowledged you’re treated as an other dependent under Subsection 8 of our list of ranking of dependents and how they will recover the money.

This applies in this case, that you are not excluded from Workmen’s Compensation by law that you are right but not excluded.

William H. Rehnquist:

In other words, had there been no legitimate children in this case, the illegitimate children that Mr. Lacour represents would have been entitled some share of the Workmen’s Compensation?

W. Henson Moore:

That’s correct, Your Honor.

As a matter of fact I called your attention to this — Yes, as matter of ranking in preference under Section 1232 of our Louisiana Workmen’s Compensation Law, which I quote verbatim in my brief.

“There are eight classifications or ranking of which dependent in which situation gets what percent of the allowable wages to be paid in Workmen’s Compensation benefits.”

The illegitimate unacknowledged children are treated as other dependents under the eighth ranking meaning in order of preference.

They are eighth in the line, eighth in the line of preference.

But of those eight the first, second, fourth, fifth and seventh all have situations where there may be somebody in a high ranking that does not use up the whole 65%, the balance then goes down the line and it would come to the eighth rank illegitimate unacknowledged children.

In other words, I gave an example.

Under Section 5, Subsection 5 it says, if there are two children meaning, legitimates are acknowledged.

These two children recovered fourty-six and one-quarter percent of the wages.

The difference between this forty-six and one-quarter percent and sixty-five percent would go down the line to the next order of persons all the way to the end.

In that case there would be a — in this case the illegitimate children would recover the difference between forty-six and one-quarter and sixty-five percent.

What if the decedent had no legitimate children, no one but had one parent?

W. Henson Moore:

That’s right.

Then the thirty-two and one-half percent would go to illegitimate children?

W. Henson Moore:

Correct, Your Honor.

Correct.

And so we are trying to point out here is that there is no absolute barrier for illegitimate unacknowledged child to recover compensation as the laws in the tort law of Louisiana dealing with 2315.

W. Henson Moore:

Now in the case of Labine versus Vincent the same thing is true.

An illegitimate unacknowledged child has absolute no right to inherit under Louisiana law.

This again, we just pointed out, is not true in our compensation law.

Now let’s take the situation of the acknowledged illegitimate child, how is it for you?

Right there Mr. Moore, do you concede that these children could not have been acknowledged under 204?

W. Henson Moore:

At the time of the decedent’s death, no, they could not have been, that’s correct.

Of course the law goes on to point out that should these two persons subsequently contract illegal marriage, they then can adopt, and so the restriction there is not one for all time.

It worked out that way in this case, because obviously, the man died before he had the chance to properly divorce his first wife and marry the woman with whom he was living.

And the case of the acknowledged illegitimate child, once again under Levy, he had no right of recovery.

As you point out in Labine versus Vincent, he does have a right of succession, a right to be in the succession, but he has not rank equally with legitimate children.

Even in Labine versus Vincent, he comes in a preferential order.

He comes down the line ahead of the State of Louisiana and several other miscellaneous persons with on the line on order of succession, but he has not acknowledged, illegitimate child is not treated equally with the legitimate child of Louisiana succession law.

Now, we come to Louisiana’s Workmen’s Compensation Law and we see that an acknowledged illegitimate child is treated equally with the adopted or children born to a legal marriage.

Therefore once again we can see that in looking to similarities, Louisiana’s Workmen’s Compensation Law does not have any were near the barriers found in Levy and it is indeed far better off than those this Honorable Court pointed out in Labine versus Vincent.

Further, as I pointed out, in the case of whether a child can be acknowledge or not, if those two parents subsequently marry, they can then acknowledge the child.

I would like also point out the discrimination here as to the illegitimate children is no different than discrimination of a ranking of all persons in the eight subcategories of dependents.

In other words the ascendants are ranked over the collateral relations and the descendants are ranked over the ascendants, and so this is just the whole schematic line up of rankings here.

There is no invidious discrimination any of them, they use to give a preferential order of how the support is to be partialled out.

The moment — the question was asked a moment ago as for the reason for this ranking or why this was done.

And I’d like to point out that in the — on page 76 of the Appendix, the Louisiana Supreme Court summed it up as best as we can find anywhere in print.

The Louisiana Supreme Court said for ourselves we find nothing invidious into the distinction made in the compensation statute, which would protect such legally recognize family relationships anymore in the preference given the legitimate dependent children even the illegitimate ones when they’re duly acknowledged over dependent parents.

What the Court is saying here is, this is all Louisiana, legislative of Louisiana has felt that this protects the order, the existing family orders, but partialling out the compensation based upon first of all the question of dependency and secondly the question of the family relationship.

I would like to point out to this Honorable Court in the Levy decision noted the fairness of Louisiana’s Workmen’s Compensation Law in footnote number 7, and so I’d like to point again, to the fact that Louisiana Workmen’s Compensation Law does not have absolute invidious discrimination or an absolute barrier to recovery.

It is just in this particular case it appears that this time at this time the two illegitimate children will not recover anything.

Now if subsequently, before the 400 weeks expires, I assume that this time it has expired, if one or more of the illegitimate children had died then there would be this balance or overflow that would go down the line to the illegitimates, and so even after the Court rendered its initial opinion to this case, it was still possible for the illegitimates to come and to some Workman’s Compensation benefits.

This was noted and preserved in the judgment of the Trial Court.

William H. Rehnquist:

Mr. Moore, have these children born out of wedlock but impediment not been there to actual legitimation and have they been legitimated, they would have recover as lawful children under compensation law?

W. Henson Moore:

Correct, sir.

Correct under compensation law.

That’s not true or it’s not true under the tort law and it is not true still under succession law to Labine versus Vincent, but it true in the workmen’s compensation law.

W. Henson Moore:

Your Honors, I’d like to point out the language in Labine and Levy, which lead to Louisiana’s discretion or its power to do what is done in setting up this Louisiana Workmen’s Compensation Law.

In Labine, this Honorable Court pointed out and I quote, “Levy did not say and cannot barely be read to say that a state can never treat any illegitimate child differently from legitimate offspring.”

And further the Court noted that and I quote, “The choices reflected by the interstate or the intrastate succession statutes are choices which is within its power of the State to make.”

The Federal Constitution does not give this Court the power to overturn the State’s choice under the guidance of constitutional interpretation, because the Justice of this Court can provide better rules.

And under Levy the majority opinion and I quote, “In applying the Equal Protection Clause to social and economic legislation, we give great latitude of the legislature in making classifications.”

I would like to say of course Louisiana’s Workmen’s Compensation Law has been definitely social and economic legislature, and we ask this Honorable Court to find that the State of Louisiana has had its latitude in making this classifications that they are not invidious and that the State can, in this case, treat illegitimate children somewhat differently in a ranking if it has not absolutely prevented them from recovery.

And we ask you therefore to find that there is no invidious discrimination and to affirm the judgment of Louisiana Supreme Court.

Lewis F. Powell, Jr.:

Mr. Moore, may I ask you a question?

The classification that you’ve been discussing applies in the case of death, is there a similar classification on the Louisiana law that applies with respect to Workmen’s Compensation benefits resulting from an injury?

W. Henson Moore:

No, sir.

Your Honor, in the case of injury, the benefits are paid directly to the injured employee.

Lewis F. Powell, Jr.:

And regardless of the disability —

W. Henson Moore:

That’s correct.

We have partial disability and permanent disability situations.

Lewis F. Powell, Jr.:

(Voice Overlap) likely manly disabled?

W. Henson Moore:

In that case Your Honor I am not sure I think he would probably be paid to —

Lewis F. Powell, Jr.:

(Voice Overlap) comity or —

W. Henson Moore:

You have to have someone appointed as a treater, not a treater but administrator of his state and money would be paid to that person.

But that’s the only in the case of a death situation you are under classification of who are the beneficiaries of the compensation benefits.

Warren E. Burger:

Thank you Mr. Moore.

Do you have any further Mr. Lacour?

Vanue B. Lacour:

Just three comment, may it please the Chief Justice and members of the Court.

An argument is made here that the employer and its compensation insurer would perhaps be prejudice by a non payable decision in that now proscription has run, they would not and it would be without their remedy of subrogation.

But the record will show however that the circumstances in which the employer or any its insurer find itself now really was part of its own doing, the Court should — I want the Court to know that the illegitimate children were brought into the suit by what do we call (Inaudible) in Louisiana by interpleader by the compensation carrier in order to assure itself that it would get everybody in the Court and have finally decide so it wouldn’t be left or paying multiple payments or just to avoid what normally interpleader avoid.

However, at this turn of the event, when it found itself entitled to the all set and the legitimate children dismissed it too, it had its fair opportunity to uphold the dismissal and have the things finally litigated.

So, any prejudice really that itself is not called by any action on the part of the appellants you know would it result to any in affirmance by the Court but really be the result of that choice made in the court below.

Now the allusion it made also to what the Court said in Levy that of defendants of Louisiana of course in my brief I footnote that point and when I first read it, when Levy was quite decided, it was mindful of the fact that it did not call to the attention of the Court that the fairness or the permission of the allowance of Workmen’s Compensation to illegitimate children, such as the Court saw there, was not because they were children, and I want the Court — I want to get it clearly understood and try to get it across that the illegitimate children when they come in under classification eight to witness that more alludes, come in as other dependents and anybody else who might be a member of a family they’re not because they are the children but have been an aunt, or had been a maid, or had been an uncle living in the family and he could show that dependency of that family and there were not enough legitimate children to use up the Workmen’s Compensation he would come in so this little children are thrown with this crowd that happen to be dependent and they’re not respected as dependent member or children who have that nexus that we’re talking about that the Court was talking about in Levy and that is really the Workmen’s Compensation replace it 2315 here and if to disregard the children as it did on the workmen on the 2315 on the tort it is invidious discrimination.

You’re taking away from them here the very same thing in the Ninth and the very same thing under guide of Workmen’s Compensation that would been denied on the Levy so with that —

Potter Stewart:

Under 8 — under Subsection 8, a complete stranger so far as that is a complete non-family member could qualify as a dependent as I understand?

Vanue B. Lacour:

Yes.

Vanue B. Lacour:

Yes, if he has approved dependency and provide it —

Potter Stewart:

If he proves the fact to dependency?

Vanue B. Lacour:

And provided the nature that would have taken even though they were unacknowledged, incapable of being acknowledged illegitimate would have taken whatever promise that have been left if they had not been a enough people to use up all the [Voice Overlap].

Potter Stewart:

Just on proving the fact of the dependency not on proving the fact of —

Vanue B. Lacour:

Yes, not only proving the fact of being fair and having the nexus to apply the need the same reparation for the loss of a parent that has illegitimate children.

Potter Stewart:

And it is your claim that whatever it may or may not provide that the Equal Protection Clause of the Fourteenth Amendment entitles your client as to be treated as children?

Vanue B. Lacour:

Right.

Not in the both bases, but indeed particular facts on this petition case was one family unit and there is nothing nor the reason to mistreat these two children here as they were mistreated and that they were illegitimate.

Yes in this particular case, it was invidious in any case as now as this.

If — I don’t see how we can escape seeing invidiousness of treating those children, and we believe that the Supreme Court of Louisiana ought to be reversed and the case be remanded for the appropriate relief.

Thank you.

Warren E. Burger:

Thank you Mr. Lacour.

Thank you, Mr. Moore.

The case is submitted.