On Rehearing. The only question in this case is whether illegitimate children who were members of the family of a deceased employee, residing with him and dependent upon his earnings for support at the time of the accident and death, are entitled to compensation as dependent members of the family, under subsection 2 of section 8 of the Employers' Liability Act, notwithstanding the children were not acknowledged by the father by one of the methods prescribed by article 203 of the Civil Code — that is, by a declaration made in the registering of the birth or baptism of the child, or by a declaration made before a notary public in the presence of two witnesses.

The case being before us on rehearing, the court adheres to its ruling that the illegitimate children of the deceased employee have no right of action for damages for his death, under article2315 of the Civil Code. In fact, the plaintiff, as mother and tutrix of the children, in her *Page 114 petition for a rehearing, made no complaint of the judgment rejecting their claim for damages. She complains only of the rejection of the demand for compensation, under the Employers' Liability Act — specifically, under subsection 2 of section 8 of Act 20 of 1914, as amended by Act 242 of 1928.

The plaintiff concedes that her children, being the unacknowledged illegitimate children of the deceased employee, are not entitled to compensation by virtue only of their being his children. That is because of the provisions in paragraph (H) of subsection 2 of section 8 of the statute that the term "children" shall not include illegitimate children who have not been acknowledged under the provisions of articles 203, 204 and 205 of the Civil Code. Article 203 is the pertinent article. The plaintiff rests her claim for compensation for the children upon the fact only that they were dependent members of the family composed of the father and mother and two children.

In subsection 2 of section 8 of the Employers' Liability Act, as amended by act 242 of 1928, the dependents of a deceased employee who are entitled to compensation for a fatal accident to the employee are divided into two classes. One of the two classes consists of surviving relations who are conclusively presumed to have been wholly and actually dependent upon the earnings of the deceased employee at the time of the accident and death. They need not prove that they were actually dependent upon the earnings of the deceased employee at the time of the accident or death. In the enumeration of that class *Page 115 of dependents are children of the deceased employee if they are under the age of 18 years (or over that age if physically or mentally incapacitated) living with the parent at the time of the injury which caused the parent's death. The other class of survivors who are entitled to compensation for an injury causing the death of an employee consists of those who were actually dependent upon his earnings and who were either members of his family or bore to him one of the several relations enumerated in paragraph (D). Claimants in that class are not presumed to have been dependent upon the employee's earnings for support; hence they must prove that they were actually dependent upon the earnings of the employee for support at the time of the accident and death.

This distinction between the two classes of survivors entitled to compensation for an injury causing the death of an employee is made plain in subsection 2 of section 8 of the statute. This subsection provides that for an injury causing death within a year after the accident there shall be paid to the legal dependents of the employee, either wholly or partially dependent upon his earnings for support at the time of the accident and death, certain weekly compensation for a period of 300 weeks. The subsection provides also that certain surviving relations of a deceased employee, including children under the age of 18 years, or physically or mentally incapacitated, "shall be conclusively presumed to be wholly and actually dependent upon the deceased employee." In paragraph (H) of the same subsection it is declared that the *Page 116 term "child" or "children" shall include only legitimate children, step-children, posthumous children, adopted children, and illegitimate children acknowledged by the deceased parent in one of the forms prescribed by article 203 of the Civil Code. This definition of the term "child" or "children" has reference especially to the children who "shall be conclusively presumed to be wholly and actually dependent upon the deceased employee," and who, therefore, need not prove that they were dependent upon his earnings for support. In paragraph (D) of that subsection it is declared: "In all other cases, the question of legal and actual dependency in whole or in part, shall be determined in accordance with the facts as they may be at the time of the accident and death." That means that, in all cases where the party claiming compensation for the death of an employee is not conclusively presumed to have been wholly and actually dependent upon the deceased employee for support, the claimant must prove that he was actually dependent upon the earnings of the employee for support, and he must prove either that he was a member of the family of the deceased employee at the time of the accident and death, or that he bore to him one of the several relations enumerated in paragraph (D) of subsection 2 of section 8 — thus:

"No person shall be considered a dependent, unless he is a member of the family of the deceased employee, or bearing to him the relation of husband or widow, or lineal descendant or ascendent, or brother or sister, or child." [The italics are ours.] *Page 117

The important word in this quotation is the word "or", in the declaration that no person shall be considered a dependent unless he is a member of the family of the deceased employee,or bears to him one of the several relations enumerated in paragraph (D) of subsection 2 of section 8.

The word "or" in paragraph (D) is not convertible into "and." The use of the word "or" in this paragraph leaves no doubt that an illegitimate child claiming compensation for the death of his father must prove either that he was duly acknowledged by the deceased employee in one of the forms prescribed in article 203 of the Civil Code or that he, the child, was in fact a dependent member of the family of the deceased employee. But he need not prove both that he was duly acknowledged and that he was a dependent member of the family of the deceased employee.

If a person claiming compensation for an injury causing the death of an employee was a dependent member of his family, the claimant need not have borne such relation to the deceased employee as to be "conclusively presumed to be wholly and actually dependent upon the deceased employee" for support. Hence, if the claimant of compensation is an illegitimate child of the deceased employee, and was a dependent member of his family at the time of the accident and death, it is not necessary that the claimant shall have been acknowledged by the employee according to the provisions of article 203 of the Civil Code, in order to be entitled to compensation under the Employers' Liability Act. *Page 118

The word "legal" in the term "legal dependent", as used in subsection 2 of section 8 of the statute, does not mean legitimate — as distinguishing legitimate from illegitimate relations of the deceased employee. The term "legal dependents" means dependents who are legally entitled to compensation under the statute. The term is applicable to actually dependent members of the family of the deceased, as well as to the surviving relations who are conclusively presumed to have been dependent upon his earnings for support. In the opening sentence, and in the next following sentence, in this subsection of the statute, the term "legal dependents" is used in a context which leaves no doubt that the term "legal dependents" has reference to dependent members of the family of the deceased employee, as well as to the surviving relations who are conclusively presumed to have been dependent upon the earnings of the deceased employee for support. This meaning of the term "legal dependents" is emphasized in paragraph (D) of subsection 2, where it is declared: "In all other cases, the question oflegal and actual dependency in whole or in part, shall be determined in accordance with the facts as they may be at the time of the accident and death." [The italics are ours.]

The defendant in this case contends that there can be no such thing as a family headed by a couple living together not in the state of matrimony but in a state of concubinage. A sufficient answer to that is that the word "family", in the provision in paragraph (D) of subsection 2 of section 8 of the statute — that no person *Page 119 shall be considered a dependent unless he is a member of thefamily of the deceased employee, or unless he bears to him one of the several relationships listed in that paragraph — is used in the everyday sense in which the word "family" is defined in the dictionaries. In the Civil Code, in article 3556, paragraph 12, the word "family" is defined, both in a limited sense and in the broad sense in which it is generally understood — thus:

"12. Family. — Family in a limited sense, signifies the father, mother and children. In a more extensive sense, it comprehends all the individuals who live under the authority of another, and includes the servants of the father of family.

"It is also employed to signify all the relations who descend from a common root."

Therefore, in the instant case, the father and mother of the two illegitimate children, and the two children themselves, all living together under the same roof, might well be considered a "family" within the limited sense in which the word is defined in paragraph 12 of article 3556 of the Civil Code. But, certainly, this group constituted a family, in the "more extensive sense" in which the word "family" is used in paragraph 12 of article 3556 of the Civil Code. We do not mean that the word family is used there in such an extensive sense as to include the servants of the father of the family. It is not necessary to go that far in the instant case.

This court, in the most recent case on the subject, namely, Archibald v. Employers' Liability Assurance Corporation, *Page 120 202 La. 89, 11 So. 2d 492, adopted the broader definition, or as paragraph 12 of article 3556 of the Civil Code puts it, the "more extensive sense" of the word "family," as it is used in subsection 2 of section 8 of the Employers' Liability Act. In the Archibald Case the father-in-law, the mother-in-law, and two sisters-in-law, of the deceased employee, who was a widower, were allowed compensation for a fatal injury to him, on the basis of their being members of his family at the time of the accident and death. In the course of the opinion in that case, referring to paragraph (E) of subsection 2 of section 8 of the statute, it was said:

"This clearly shows that the Legislature never intended that `family' was to be given a restricted meaning."

In the Archibald Case the court quoted decisions rendered in many other states, in support of the statement that, in other jurisdictions it has been held that to be a member of the family of a deceased employee one does not "have to bear any of the relationships set out after the word `or' in the above quoted subsection, Paragraph (D) of Section 8, subsection 2." That quotation is followed by the statement in the Archibald Case: "All that is required is a family or household and the existence of the dependency of a member thereof as illustrated by the facts of the particular case." To support the statement which we have quoted the writer of the opinion in the Archibald Case cited ten decisions of courts of last resort, together with Miss Marian Mayer's book on Workmen's Compensation in Louisiana, *page 110. *Page 121

In a work entitled Injury and Death Under Workmen's Compensation Laws, published in 1944, by Samuel B. Horovitz, author of Practice and Procedure under the Massachusetts Workmen's Compensation Law, the author, on page 300 of his book, referring to the right of an illegitimate child to receive compensation for a fatal injury to his father, says:

"Some regard children of nonmarried parents as `children' of the mother only; others regard them as illegitimate offspring unworthy of being regarded as a compensation `child.' Massachusetts and many states have a soft spot only if the child lives with the father, — then it recovers, not as a `child' but as a member of the family."

Mr. Horovitz means that the soft spot — which Massachusetts and the many other states have for illegitimate children living with their father — is in the heart of the members of the Legislature, not of the courts of justice. The author explains matters by citing the following cases: Harry Scott's Case,117 Me. 436, 104 A. 794; Andrea Gritta's (dependents') Case,236 Mass. 204, 127 N.E. 889; Roberts v. Whaley, 192 Mich. 133, 158 N.W. 209, L.R.A. 1918A, 189; Piccinim v. Connecticut Light Power Co., 93 Conn. 423, 106 A. 330.

In the instant case the defendant relies in some measure upon article 238 of the Civil Code, which provides:

"Illegitimate children, generally speaking, belong to no family, and have no relations; accordingly they are not submitted *Page 122 to the paternal authority, even when they have been legally acknowledged."

So far as this article of the Code deals with paternal authority, it has no connection with the provisions of subsection 2 of section 8 of the Employers' Liability Act, dealing with dependent illegitimate children. We say this because in the article of the Code no distinction is made between illegitimate children who have been legally acknowledged and those who have not been legally acknowledged, with regard to their being free from paternal authority. It is said there that illegitimate children, even when they have been legally acknowledged, "are not submitted to the paternal authority." The word "submitted" is obviously not an appropriate translation of the word soumis in the French text of the corresponding article, 254, in the Code of 1825 — or in article 59, p. 57, of the Code or Digest of 1808. The French word soumis is the past participle of the verb soumettre, and means — according to the context in which it is used — "subject" or "subjected", or "submitted." But, in the context in which it appears in article 254 of the Code of 1825, the word soumis means "subject" or "subjected." It does not mean "submitted." The text of article 254 reads as follows:

"Les batards, en general, ne sont d'aucune famille et n'ont point de parens; aussi ne sont-ils pas soumis a la puisance paternelle, meme lorsqu'ils sont legalement reconnus."

A more accurate translation of article 254 of the Code of 1825, giving to each word the meaning ascribed to it by Spieres Surrenne, would read like this: *Page 123

"Bastards, generally, do not belong to any family and have no relations; likewise they are not subject to the paternal authority, even when they have been legally acknowledged."

The term en general means "in general," or "generally," but it means also "as a general rule," as distinguished from an invariable rule. See p. 801 of Spieres and Surrenne's Dictionary. Our opinion is that when the writers of article 254 of the Code of 1825 wrote "Bastards, generally, do not belong to any family and have no relations," they meant that a bastard is not considered a member of any particular family, or as having any relations, unless he is actually residing in the family composed of persons to whom the bastard is an illegitimate relation. The wording of the article, either in the French text or in the translation in the Code of 1825, or in the revision of 1870, does not convey the idea that bastards, or unacknowledged illegitimate children, cannot be considered under any circumstances to be members of a family composed of persons of whom the bastards are the illegitimate relations. This conclusion is applicable particularly to the provisions of subsection 2 of section 8 of the Employers' Liability Act.

The members of the Legislature, in adopting subsection 2 of section 8 of the Employers' Liability Act, and in amending that subsection from time to time, have not considered it against public policy or good morals to allow an illegitimate child compensation for the accidental death of his or her father, if the child was living with the father as a member of his family *Page 124 and was dependent upon his earnings for support at the time of the accident and death. If that were not true the Legislature would have excluded, in terms, unacknowledged illegitimate children from the right to have compensation for the accidental death of an employee. It was so declared in one of the cases cited in Mr. Horovitz's book, page 300, namely, in the case of Piccinim v. Connecticut Light Power Co., 93 Conn. 423, loc.cit. pp. 426, 427, 106 A. 330. In fact, in every one of the cases cited by Mr. Horovitz it is declared that it is not against a sound public policy, either upon moral grounds or as a matter of law or justice, that illegitimate children should not be penalized for their illegitimacy by being denied the rights and benefits accorded to all other members of the family of an employee, dependent upon his earnings for support. For example, in Roberts v. Whaley, 192 Mich. 133, loc.cit. 138, 158 N.W. 209, loc.cit. 211, L.R.A. 1918A. 189, the Supreme Court of Michigan observed:

"But it is said they are illegitimate children, and that the law will not encourage the immoral and unlawful relation of the parents by recognizing them. The children are in no wise responsible for their existence or status. They are here, and must be cared for and supported. They were cared for and supported by the deceased up to the time of his death. It was his legal and moral duty to support them, and he was responding to that duty when death overtook him."

That statement, by Justice Bird of the Supreme Court of Michigan, that it was *Page 125 the legal and moral duty of the father to support his illegitimate children, is as true under the Civil Code of Louisiana as under the laws of Michigan. In article 240 of the Civil Code, it is declared:

"Fathers and mothers owe alimony to their illegitimate children, when they are in need."

It is declared in article 242 that in order that illegitimate children may have the right to sue for alimony they must have been acknowledged by the parent from whom they claim the alimony or must be judicially declared to be his or her children. But the children in this instance are not claiming alimony. They are claiming compensation for the death of their father, under the Employers' Liability Act. There is nothing in the statute — and certainly nothing in the Civil Code — to require illegitimate children to have their paternity established by a judicial decree, rendered in a separate suit, before they can sue for compensation for the death of their father, under the Employers' Liability Act. The fact that they are illegitimate children of the deceased employee may be shown in their suit for compensation, in support of their claim that they were members of his family and dependent upon his earnings for support at the time of the accident and death.

The decision in Perkins v. Brownell-Drews Lumber Co.,147 La. 337, 84 So. 894, does not conflict with the claim of the illegitimate children in this case. The only question that was decided — or that was tendered for decision — in the Perkins Case was whether the parents of an unacknowledged *Page 126 illegitimate child, who was killed in the course of his employment in the defendant's sawmill, were entitled to compensation, under the Employers' Liability Act. It is stated in the opinion rendered in the case that the plaintiffs sued as heirs of their illegitimate child. They did not claim compensation as dependent members of the family of the child, or even allege that they had been dependent upon his earnings for support. The decision was based upon the laws of inheritance — specifically, upon the provisions of the Civil Code concerning irregular successions and the right of the father or mother of an illegitimate child to inherit his estate. The court based its decision, rejecting the demand of the parents of the illegitimate child, upon the Succession of Lacosst, 142 La. 673, 77 So. 497. At the conclusion of the opinion in the Perkins Case it was said: "The controlling decision is Succession of Lacosst,142 La. 673, 77 So. 497, to the effect that a parent has not this right", — meaning the right of an illegitimate child to prove acknowledgment otherwise than by the modes prescribed in article 203 of the Civil Code. The laws of inheritance, which governed the decision in the Succession of Lacosst, and which were invoked unsuccessfully in the Perkins Case, have nothing whatever to do with the right of a surviving dependent member of the family of a deceased employee to receive compensation under the Employers' Liability Act.

The question presented in the instant case was not an issue in the case of Barranco v. Davis, 175 La. 35, 142 So. 844, and, of course, was not considered, much *Page 127 less decided, by this court, or by the court of appeal, or by the trial court, in the Barranco Case. In that case the plaintiff, being the mother and tutrix of three illegitimate children, claimed compensation for them for the accidental death of their father, on the ground only that they were duly acknowledged by him and the mother in the registering of the birth and baptism of the children. The plaintiff did not, either in her pleadings or in her briefs, in the district court, or in the court of appeal, or in the supreme court, contend that the children were living with the father as members of his family, dependent upon his earnings for support, at the time of the accident and death. On the trial of the case the defendant admitted that one of the children had been acknowledged legally and formally by both parents and was entitled to the compensation claimed for that child. After trial of the case the court found that the two other illegitimate children were never legally acknowledged by their father and therefore were not entitled to compensation as acknowledged illegitimate children — conclusively presumed to be dependent upon their father's earnings for support. For that reason alone the court rejected their demand. On appeal the court of appeal sustained the demand for compensation for all of the three children, on the ground solely that they were duly acknowledged illegitimate children and were therefore conclusively presumed to have been dependent upon the earnings of their father for support. The court of appeal did not for one moment consider the question whether the children might have been entitled to compensation as dependent *Page 128 members of the family and without regard to their being the children of the deceased employee. On review by this court the judgment of the court of appeal was reversed, so far as the two unacknowledged illegitimate children were concerned, and their claim was rejected on the ground solely that they were not legally acknowledged by their father. This court did not consider for one moment the question whether the two unacknowledged illegitimate children might have been entitled to compensation as dependent members of the family of the deceased employee. It cannot be said that the court passed upon the question whether an unacknowledged illegitimate child may claim compensation successfully as a dependent member of the family of the deceased employee, when that question was never considered by the court or presented for decision. We must assume, from the fact that the tutrix did not claim compensation for her children as dependent members of the family of the deceased employee, that they were not in fact dependent members of his family at the time of the accident and death.

In the case of Beard v. Rickert Rice Mills, 185 La. 55,168 So. 492, it was held that an illegitimate child of an illegitimate daughter of the concubine of a deceased employee was not entitled to compensation under the Employers' Liability Act, for an accidental injury causing the death of the employee, even if the child was a member of the family of the deceased employee and was dependent upon his earnings for support at the time of the accident and death. That decision was based solely upon the interpretation of the term legal *Page 129 dependents. In the opinion rendered in the case the termlegal dependents appears five times, and the words legaldependents are italicized in four of the five instances; and the conclusion is stated thus:

"It is clear to us that the Workmen's Compensation or Employers' Liability Acts in force now and at the time of Bazil Beard's death provide only for compensation to legal dependents. Having reached this conclusion, 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."

It is plain therefore that the decision in the Beard Case turned upon the interpretation of the term "legal dependents," as meaning legitimate dependents. The interpretation is not applicable to acknowledged illegitimate children of the deceased employee, because, by the very terms of the statute, they are conclusively presumed to be "legal dependents." The ruling in the Beard Case means that persons of illegitimate birth are absolutely denied — because of their illegitimacy — the protection of the Workmen's Compensation Law in cases where they are dependent members of the family of an employee who is under the protection of the Workmen's Compensation Law.

The Beard Case is not cited in the prevailing opinion rendered on the original hearing in the instant case. So far as the decision purports to exclude persons of illegitimate *Page 130 birth, from the protection afforded by the Employers' Liability Act to the dependent members of the family of an employee, the decision is based upon an error in the interpretation of the term "legal dependents," which error should not be perpetuated. And, so far as the decision purports to exclude from the protection afforded by the Employers' Liability Act all dependent members of the family of an employee except those who are specifically enumerated in subsection 2 of section 8 of the act, the decision was virtually overruled in Archibald v. Employers' Liability Assurance Corporation, 202 La. 89,11 So. 2d 492, not cited in the prevailing opinion rendered on the original hearing of the instant case. In the opinion rendered in the Archibald Case the court showed its disapproval of the decision rendered in the Beard Case, thus:

"The legal dependents designated in the statute are members of the family of the deceased employee, or persons bearing to him the relation of husband, widow, lineal ascendant or descendant, brother, sister, or child, who were dependent on him for support at the time of his death. [Italics are ours.]

* * * * * "It 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.

* * * * * "The defendants rely on the case of Beard v. Rickert Rice Mills, 185 La. 55, *Page 131 168 So. 492. The question presented in that case was whether an illegitimate son of an illegitimate daughter of the deceased employee and his concubine could recover under the Workmen's Compensation Act. This Court in deciding the case held that the plaintiff was not a legal dependent and stated that it was unnecessary to determine whether or not he was actually a member of the deceased employee's family or actually dependent upon him for support. While we refrain from commenting on the holding in that case, it is sufficient to say that it is not in point with the present case." [Italics are ours.]

In the case of Gullung v. Dalgarn Construction Co., 1 La.App. 147, decided by the Court of Appeal for the Parish of Orleans, in 1924, the only question that was decided — or that was tendered for decision — was whether an adulterous bastard child, who was of course unacknowledged in the manner required by article 203 of the Civil Code, and who, according to article 204 could not have been acknowledged legally because his parents could not have contracted a legal marriage, was not entitled to compensation, as a child, for the accidental death of his father, under subsection 2 of section 8 of the Employers' Liability Act. The plaintiff in the case, being the mother and tutrix of the child, did not claim compensation on the ground that the child was a dependent member of the family of the deceased employee; hence the question whether the child was entitled to compensation as a dependent member of the family of the deceased employee was not considered, much less decided, by the *Page 132 trial judge or by the court of appeal. For that reason the decision rendered in that case, like the decision in the Barranco Case, is not at all applicable to the instant case.

In the case of Wells v. White-Grandin Lumber Co., 13 La.App. 696, 129 So. 171, 172, decided by the Court of Appeal for the First Circuit, in 1930, the only question that was decided, or that was tendered for decision, was whether the informal acknowledgment of the paternity of an illegitimate child was a sufficient compliance with article 203 of the Civil Code, to lift the status of the child to the class "called natural children" as "contradistinguished by the appellation of bastards," as provided in article 202 of the Civil Code. The plaintiff, Irene Wells, who was the mother and sued as tutrix of the illegitimate child, did not claim that the child was a dependent member of the family of the deceased employee. Hence the court did not decide — and had no occasion for deciding — whether the illegitimate child was entitled to compensation as a dependent member of the family of the deceased employee. The writer of the opinion stated the question and answer, thus:

"The important, and we may say the only, question raised under the exception of no cause of action, as well as under the issue tendered by the petition and answer, is with regard to the acknowledgment by the alleged father of this illegitimate child.

* * * * * "If it be conceded that plaintiff's petition sets out a cause of action, we are satisfied *Page 133 the proof fails to show an acknowledgment of the child by the father in the manner required by law, and therefore the claim has to be rejected."

The decision in the Wells Case, therefore, like the decision in the Barranco Case, and in the Gullung Case, is not applicable to the issue presented in the instant case.

In the case of Stewart v. Parish of Jefferson Davis, 17 La.App. 626, 136 So. 659, decided by the Court of Appeal for the First Circuit, in 1931, the only question decided — which was the only question presented for decision — was whether the certificate of a Catholic Priest, certifying merely that on January 17, 1913, he baptized a child named John, born on November 21, 1912, being a child of Edmond Stewart and Marie Thibodaux, constituted such proof as is required by article 203 of the Civil Code to constitute an acknowledgment by the father of the paternity of the child. The court held that the certificate of the priest did not constitute a legal acknowledgment by either of the parents under article 203 of the Civil Code. For that reason alone the court dismissed the demand of the mother for compensation for the accidental death of John Stewart. The suit was brought by the father of the illegitimate child. The mother intervened, alleging that she was the wife of the boy's father, and that she was living separate and apart from him. She alleged that John Stewart was their illegitimate son, and that she had been for several years partially dependent upon him for support. *Page 134 Hence she claimed compensation for the boy's death, under the Employers' Liability Act. She did not claim that she and the boy were residing together as members of the same family at the time of the accident or death. In fact, from her allegation that she was living separate and apart from her husband at the time of the boy's death, we infer that she and the boy were not residing together as members of a family. When the case was called for trial the plaintiff abandoned his suit, and the trial proceeded only on the demand of the intervener, mother of the illegitimate child. All that the court decided was that the certificate of the priest did not constitute an acknowledgment by the parents of the illegitimate child, as required by article 203 of the Civil Code to constitute a legal acknowledgment. The decision rendered in that case, therefore, like the decision in the Barranco Case, in the Wells Case, and in the Gullung Case, is not at all applicable to the issue presented in the instant case.

The decree rendered by this court on the original hearing of this case having been set aside by the granting of a rehearing, the judgment rendered by the district court and affirmed by the court of appeal is now annulled, the exception of no cause or right of action is overruled, and the case is ordered remanded to the district court for further proceedings consistent with this opinion on rehearing. The costs of appeal and of the proceedings in this court are to be borne by the defendant; all other court costs are to abide the final disposition of the case. The right is reserved to the defendant to apply for a rehearing. *Page 135