
    No. 8478
    Court of Appeals Parish of Orleans.
    Mary Benjamin, widow of Levy Browder versus Standard Accident Insurance Company of Detroit.
   Dinkelspiel; J.

Plaintiff institutes this suit under Act No. 30 of 1914 of the Legislature of the State of Louisiana, known as the Workman's Compensation Act, alleging that certain injuries were received by her during her employment by the firm of Groomes and Elson,.which firm She also alleges no longer does business in thin State and has left no agent in this State upon whom oitation oan be served, and that under Seotions 33 and 34 of the Workman's Compensation Aot defendant insuranoe Company being the Insurer of Qroomes and Elson for the injufies alleged to have been suffered to her, is directly liable to plaintiff, she files this suit, olalming judgment ilreotly against said Insuranoe Company.

In the answer of the defendant, amongst other things admit that it was the insurer of Qroomes and Elson at the time plaintiff was Injured, but denies for laok of information the averments of paragraph thirteen of plaintiff's petition, whioh paragraph oontalned the allegations relied upon by plaintiff authorizing her to bring this notion against the Insuranoe Company defendant herein. From a judgment in favor of plaintiff, defendeni ¡ insuranoe Oo,appells

We are met at the threshhold of this allegation and its denial with what the Compensation Aot, in oases of this oharaoter requires as an essential before an Insuranoe Company oan be sued by an employee of an employer who has taken out insuranoe of this oharaoter.

Section 35 provides: "That if any employer shall carry Insurance against liability under this ACt and said employer shall be or become Insolvent or any execution upon a judgment for compensation is returned unsatisfied an employee of suoh employer or the dependants of the deoeased employee «trnrtrMyhywTif» who shall be entitled to payments under this Aot may enforoe their olalm to payments against the insurer of said employer to the same extent that the employer osuld have enforoed his olalm against said insurer had he made suoh payments, any provision contained In any policy ox agreement of insurance written after th« date of the promolgation of this aot to the oontrary notwithstanding and the making of aoorued payments to the person entitled thereto in accordance with the provisions of this Act shall relieve suoh insurer from liability."

It is elementary he, who affirms, must prove, unless the plea involved a negative.

Art. 313 C. P.

"It is a well settled rule that the burden of proof lies on the person who wishes to support his case by particular fact which lies more peculiarly within his knowledge, or of whiol. he is supposed to be cognizant,"

R. R. Co. vs. Fairex, 40 Ann. 748.

"A judgment by default could act be confirmed against the defendants, without proof of the endorsement of the payee, and of his signature to the transfer At written on the note. Proof of plaintiff's demand is required in all oases when not admitted by the defendants,"

Young vs. Talbot et al. 13 Rob. 518.

There is no evidence in this record to prove as is. alleged in paragraph 13 of plaintiff's petition, that the employers of plaintiff are no longer in business in this State and her > no Agent in this State tqpon whom cltatlop oould bo served.

Nor ec are any of the grounds which,under Section 38 of the Compensation Act of 1914 wentitle plaintiff to bring an notion of this character been alleged in plaintiff' s petition or any proof thereof made.

We are therefore of the opinion that plaintiff has failed to make out her case under the allegations of her petition, henoe this suit as Instituted must fall, and her suit dismissed as in case of non suit.

For the reasons assigned it is ordered, adjudged and decreed that the judgment of the lower Court be and the saq*;j.O;;': hereby annulled,. avoided and reversed and that plaintiff's’suit be dismissed as in case of non sult.  