243 S.E.2d 867 (Ga. 1978), 33071, Hughes v. Parham

Docket Nº:33071.
Citation:243 S.E.2d 867, 241 Ga. 198
Opinion Judge:NICHOLS, Chief Justice.
Party Name:Ellis Franklin HUGHES v. Curtis PARHAM.
Attorney:[241 Ga. 203] Burnside, Dye, Miller & Bowen, A. Montague Miller, Thomas W. Tucker, Augusta, for appellant. Tisinger, Tisinger & Vance, Thomas E. Greer, Carrollton, for appellee.
Judge Panel:HILL, Justice, dissenting.
Case Date:April 04, 1978
Court:Supreme Court of Georgia

Page 867

243 S.E.2d 867 (Ga. 1978)

241 Ga. 198

Ellis Franklin HUGHES


Curtis PARHAM.

No. 33071.

Supreme Court of Georgia.

April 4, 1978

Rehearing Denied April 19, 1978.

Page 868

[241 Ga. 203] Burnside, Dye, Miller & Bowen, A. Montague Miller, Thomas W. Tucker, Augusta, for appellant.

Tisinger, Tisinger & Vance, Thomas E. Greer, Carrollton, for appellee.

NICHOLS, Chief Justice.

This case draws into question the constitutionality of Ga.Code Ann. § 105-1307 (Ga.L.1887, pp. 43-45; 1952, p. 54) which provides as follows: "A mother, or, if no mother, a father, may recover for the homicide of a child, minor or sui juris, unless said child shall leave a wife, husband or child. The mother or father shall be entitled to recover the full value of the life of such child. In suits by the mother the illegitimacy of the child shall be no bar to a recovery." (Emphasis supplied.) The 1952 amendment inserted the last sentence relating to illegitimate children.

Upon the death of the illegitimate child, the natural father and the maternal grandmother, in her capacity as administratrix of the estate of the deceased child, brought separate wrongful death actions against the appellant. The appellant moved for summary judgment against the natural father, contending that there was no legal theory upon which the natural father could recover.

In denying the appellant's motion for summary judgment, the trial court found

Page 869

that Curtis Parham, the appellee, was the natural father of the deceased child; that the natural mother of the deceased child had been killed in the automobile collision that took the life of the [241 Ga. 199] child; that the child had been born out of wedlock to Curtis Parham, the appellee, and the deceased mother; and that although the appellee never had married the deceased mother, he had executed the child's birth certificate acknowledging paternity of the child, had paid the birth expenses for the child, had regularly supported the child from its birth until its death, had at all times acknowledged the child as his own, and had visited the child daily. The court further found that the Georgia wrongful death statute does not bar a wrongful death action by the mother of an illegitimate child. The trial court concluded as a matter of law that because the wrongful death statute allows a mother to maintain an action for the wrongful death of her illegitimate child but denies that right to the father of an illegitimate child, the statute violates the equal protection and due process clauses of the United States Constitution.

While the trial court's order cited no authority in support of its conclusion that the wrongful death statute is unconstitutional, we assume that it was persuaded by appellee's arguments that the United States Supreme Court's decisions outlawing arbitrary legislative classifications based upon illegitimacy mandated the result. Although a superficial consideration of the policies enunciated in those cases might lead one to the conclusion that the trial court has not erred, a close and detailed examination of the constitutional analysis employed in those decisions yields a different result.

1. With limited exception, the analysis used by the Supreme Court in illegitimacy cases appears to be grounded in equal protection. See Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968); Glona v. American Guarantee and Liability Insurance Company et al., 391 U.S. 73, 88...

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