Alabama & Vicksburg Railway Company v. Williams

• Decision Date: 12 November 1900
• Citation: 78 Miss. 209,28 So. 853
• Parties: ALABAMA & VICKSBURG RAILWAY COMPANY v. SUSAN WILLIAMS
• Court: Mississippi Supreme Court

28 So. 853

78 Miss. 209

ALABAMA & VICKSBURG RAILWAY COMPANY v. SUSAN WILLIAMS

Supreme Court of Mississippi

November 12, 1900

October 1900

FROM the circuit court of Rankin county HON. JOHN R. ENOCHS Judge.

Susan Williams, the appellee, was the plaintiff in the court below the railway company, appellant, was defendant there. The suit was for the death of Overn Foreman, who was killed by the cars of the railway company in the city of Vicksburg February 1, 1899. On the trial of the case in the court below, it appeared in evidence that the deceased was an illegitimate son of the plaintiff. The defendant asked a peremptory instruction in its favor, which the court below refused to give. The trial resulted in a verdict and judgment in plaintiff's favor for $ 1, 500, from which the defendant appealed. The case was tried in the court below before the decision of the supreme court in the case of Illinois, etc., R. R. Co. v. Johnson, 77 Miss. 727.

Reversed and remanded.

Mc Willie & Thompson, for appellant.

It has been settled in this state that a bastard is not within Lord Campbell's act or our statute (laws 1898), of which Lord Campbell's act is the prototype. Illinois, etc., R. R. v. Johnson, 77 Miss. 727.

It is useless to argue that question. The recent able opinion of this court settles it, and the scope of the opinion reaches this case. In fact, § 1549, code of 1892, much relied upon in the Johnson case, on the subject of distribution and descent of estates, does not in any sense provide for inheritance by the mother from her bastard child, and the question of such inheritance is left by our statute exactly as it was at common law, and the mother does not inherit at all, does not inherit anything, from her illegitimate offspring. To permit such an inheritance would be contrary to the policy of the law. It would be counter to the policy of even § 1549, code, for it would reward the guilty adulteress, when the statute intended only to remove an apparent, probably a real, hardship from the innocent child. The peremptory instruction asked should have been given, upon the idea that the law was just as this court has announced it to be in the Johnson case.

Theodore McKnight, for appellee.

Did the legislature, when it inserted in our statute the words, "or mother, " mean mother in that restricted sense which limited it to legitimate mothers, or did it mean to use the word in that broad sense which includes both the natural and the legitimate mother? The answer to the question involves a settlement of the proposition involved in the instruction under consideration. It does not depend upon a question of inheritance or of inheritable blood. There is nothing in the act of 1898, or in any of its prototypes, all the way back to Lord Campbell's act, which makes the right to sue in such cases inheritable. See opinion in Illinois, etc., R. R. Co. v. Johnson, 77 Miss. 727, where, speaking of the statute of descent and distribution, it is said, "there is nothing in the statute of descent and distribution making any right of action inheritable either by legitimates or illegitimates, " and again, speaking of Lord Campbell's act and of the act of 1898, it is said, "neither act deals with inheritance nor makes any mention of illegitimates."

What was the status of a bastard at common law? The answer is this: "The same as every other man, except as to his right of inheritance." Blackstone's Com., book 1, *459; 4 Kent's Com., *214.

The word "mother" had at common law exactly the same meaning when applied to the mother of a bastard as it had when applied to the mother of a legitimate child, except as to inheritance alone. If the common law had been that a "mother" might sue for the death of her child, it would have meant that the mother of a bastard could sue, when it is admitted there is no question of inheritance involved in the right to sue.

The legislature of this state has never said that only the legitimate mother may sue, but has said that the "mother" may sue. And to hold that the word, "mother, " used in the act of 1898, p. 82, shall, under the common law and the statutory law, be construed to mean "legitimate mother, " would, beyond all question, be to make innovation on the common law by judicial legislation.

In the Johnson case the question was as to the right of a bastard half-sister to sue for the death of a bastard half-sister, and this court held that she did not have the right. There is a vast difference between that case and the one at bar.

1. The right to sue in that case was claimed to be based upon the right of inheritance.

2. There was no right of inheritance between bastards tinder the common law.

3. The statute of descent and distribution does not give the right of inheritance to a bastard from his brothers and sisters, and does not recognize the bastard as having a brother or sister, while it does recognize him as having a mother. The language is peculiar and is as follows: "Shall inherit from their mother and from her other children." Note the language. It does not say, from their brothers and sisters, but speaks of them as the bastard's mother's other children.

Sophronia Johnson's right to sue depended, not upon her right of inheritance, but whether she was included in any class mentioned in the act of 1898 upon whom the right to sue was thereby bestowed; and, since our statute of descent and distribution does not recognize a bastard as having either brother or sister, the decision of the court in that case, in the absence of any other statute recognizing such relationship, would be correct.

As to the right of the mother to sue for the death of her illegitimate child, see vol. 8 (2d ed.), Am. & Eng. Enc. L., 895 (2), and Marshall v. Wabash, etc., R. R. Co., 120 Mo. 275.

There are a few decisions of some courts, and perhaps some text writers, cited as authority for the opposite view of this question, but, upon a careful and studious investigation, they will be found, no doubt, to be under peculiar statutes, or certainly not in accord with the law as it exists to-day in this state.

A. J. McLaurin, on same side.

This suit was brought under the act of 1898 (laws 1898, p. 82), which is the law of this state. Lord Campbell's act is not law here. The two acts are not identical, but are dissimilar in several respects. If the British courts have violated a rule of the common law in expounding Lord Campbell's act, it is surely no reason why our court should do so in expounding our act.

Defendant's proposition amounts to this: "Yes, we negligently killed the boy, but what of it? He was a bastard, and the act of 1898 only intended to protect the lives of children born in lawful wedlock." What a defense! The statute says, "whenever the death of any person shall be caused, " etc. Do the words, "any person, " include an illegitimate? That is the only question; for, if the words, "any person, " include a bastard, his mother is authorized to sue. Hardly can any man say that the legislature would be mindful of the lives of legitimate children and heartlessly refuse to care for the lives of illegitimates. "Any person" includes an illegitimate, unless an illegitimate is not, in law, regarded as a person. No court on earth ever held that an illegitimate is not a person. They are held not to be the children of anybody for purposes of inheritance and succession; nothing more. 1 Blackstone, 459; 2 Kent, 214.

I reject Black's Law and Practice on this question, because the author is either partial and unfair or he has given the question no investigation. He cites 46 F. for a proposition that the court expressly said was not properly before it, and does not cite the decision of the supreme court of Missouri against the proposition when the sams case was before that court. The Missouri case was decided long before Black's publication. Marshall v. Wabash Ry. Co., 120 Mo. 275.

Argued orally by R. H. Thompson, for appellant, and by Theodore McKnight and A. J. McLaurin, for the appellee.

OPINION

CALHOON, J.

There is no reason for overruling the case of Illinois, etc R. R. Co. v. Johnson , 77 Miss. 727, 28 So. 753, and the conclusion reached in that case should be the same in this. At the common law an illegitimate could not inherit from his own mother or any one else, and he could not transreit by inheritance, except to the heirs of his own body. He might become the ...