Brown v. Conway, WD

• Decision Date: 07 April 1980
• Docket Number: No. WD,WD
• Citation: 598 S.W.2d 549
• Parties: Mary L. BROWN, as Guardian of Estate of Bryan Earl Johns, a Minor, Respondent, v. Hazel CONWAY, as Administratrix of Estate of Charles Henry Johns, Jr., Deceased; Hazel Conway, Eugene Johns and Percy Johns, Appellants, S. S. Brown, As Administrator Ad Litem for Estate of Willa Lee Johns, Deceased; Pennsylvania National Mutual Casualty Insurance Company; J. C. Whitney Company; Allen Camper Manufacturing Company, Inc.; and James Spradling, or his successor in office, as Director of Revenue of the State of Missouri, Respondents. 30317.
• Court: Missouri Court of Appeals

Page 549

598 S.W.2d 549

Mary L. BROWN, as Guardian of Estate of Bryan Earl Johns, a Minor, Respondent, v. Hazel CONWAY, as Administratrix of Estate of Charles Henry

Johns, Jr., Deceased; Hazel Conway, Eugene Johns

and Percy Johns, Appellants,

S. S. Brown, As Administrator Ad Litem for Estate of Willa

Lee Johns, Deceased; Pennsylvania National Mutual Casualty

Insurance Company; J. C. Whitney Company; Allen Camper

Manufacturing Company, Inc.; and James Spradling, or his

successor in office, as Director of Revenue of the State of

Missouri, Respondents.

No. WD 30317.

Missouri Court of Appeals, Western District.

April 7, 1980.

Motion for Rehearing and/or Transfer to Supreme Court Denied

May 5, 1980.

Application to Transfer Denied June 10, 1980.

Wyman Wickersham, and Stephen G. Scholl, Kansas City, for appellants; Popham, Conway, Sweeny, Fremont & Bundschu and Linde, Thomson, Fairchild, Langworthy & Kohn, Kansas City, of counsel.

Allan R. Browne, Kansas City, for respondent; Ennis, Brown & Jensen, Kansas City, and George Warner, Jr., Meridian, Miss., of counsel.

Before KENNEDY, P. J., and PRITCHARD and SWOFFORD, JJ.

PRITCHARD, Judge.

In this declaratory judgment action, the sole issue presented is whether, under the facts, the trial court was correct in adjudging that Bryan Earl Johns was the son and heir of Charles H. Johns, Jr., deceased.

The instant action arose out of a head-on collision on U.S. Highway 69 near LaCyne, Kansas, on July 3, 1976. There was then a caravan of three campers loaded with relatives and friends for an outing in Oklahoma. Charles was driving the lead camper when it was struck by a small car. A fire ensued in which Charles, his wife, Willa L. Johns, a cousin, George Hill, Willa's son, Michael Pearson, and two children of Charles and Willa, Latanya and Patricia Johns, all died, a total of six. Renee Pearson, Willa's daughter, was the sole survivor, having escaped through the left window toward the rear of the camper. The trial court found that all these persons died simultaneously, but that finding is not here challenged.

On August 30, 1960, Willa, then going by the name of Pearson, was and had been for some time living with Otis March, at 35th and Euclid in Kansas City, but she was not married to him. On that date, Willa gave birth to a son who was named Bryan Earl Pearson. The K. U. Medical Center records indicated that the father of the child was unknown and that Otis March was responsible for medical costs. The birth certificate issued then showed Otis March as the father. Charles lived with his then wife, now Daisy Fuller, across the street from March. Charles divorced Daisy in 1963, and married Willa on June 13, 1966. K. U. Medical Center records showed that Willa used the name of "Johns" for more than two years prior to their marriage.

In August, 1966, Willa filed a verified petition in the Jackson County Circuit Court stating that both Bryan and Latanya were the children of Willie and Charles H. Johns; that the mother and natural father were legally married and were then husband and wife; and it asked that the children's names be changed to that of their natural father. On the hearing, Willa testified: "Q. Who is the natural father of these children? A. Charles Johns, Charles H. Johns. Q. Now, after the date of the birth of the younger child, Latanya Ann, did you then legally contract a marriage with the father of the children? A. Yes, sir. THE COURT: How does Mr. Johns feel about this? A. He's the one that wanted it did." Appellants, by Point I, challenge the trial court's consideration of this evidence upon the ground that it was inadmissible hearsay.

Renee Pearson, who escaped from the burning camper, testified that Charles, who called Bryan "Chuckie", would always say that he was his son, so introduced him, and he treated him like his own son. Renee and Michael Pearson were always referred to by that last name, but Patricia, Latanya and Chuck were called "Johns". At the time of the accident, Renee had been living at 3304 East 60th Street for 12 to 13 years. Before that she lived at 35th and Euclid with her mother and Otis March. Charles had treated her as a daughter, but there was never any doubt that she was not.

At the time of trial, Bryan was 17 years old, in the 11th grade, and was living with his grandparents in Meridian, Mississippi. Before the accident, he was living with Charles and was in school, and he had lived on Euclid when he was 3 or 4 years old with Charles and then moved with the family to 3304 East 60th Street. On September 4, 1970, he was baptized in the Missionary Baptist Church, 46th and Prospect, under the name of Bryan Earl Johns. Charles called him "Chuck" or "Chuckie", and introduced him by the last name Johns, as he did Patricia and Latanya. Michael and Renee were introduced by Charles by the last name Pearson. Bryan was called "Pearson" as a child because that was his mother's maiden name. Bryan testified: "I didn't have no legal father at the time, so my mother just went and put her maiden name."

Thomas Brown, Willa's brother-in-law and husband of Mary Brown, Bryan's guardian, testified that he knew Charles Johns, Jr., since 1967 when he went to work for General Motors. Charles and Willa were married during the time he knew them, and he was in and out of Charles' home on visits during which he saw and knew Bryan, Latanya, Patricia, Willa, Michael and Renee, all of whom lived in Charles' house. Charles used the terms "Chuckie" or "son" when referring to Bryan: "A. Well, anytime he ever introduced him when he was with me was, this is my son Bryan or Chuckie." Charles and Chuckie were "pretty tight." Brown knew that at one time Bryan lived with Otis March, whom Willa referred to as her husband. Willa's sister, Mary Brown, testified that she had always assumed Bryan was Charles' son there was no point in clarifying it. On cross-examination, Mary acknowledged that she knew Willa was living with Otis March at 35th and Euclid, and she thought that Bryan was born at that time, and she thought they split up after Bryan was born, at which time Willa was not married to Charles Johns, Jr.

Stuart Horne, of Quitman, Mississippi, is Willa's father. He knew Charles who came to his home in Mississippi several times, and Stuart visited in Charles' home. In 1959, Charles told him that he was going to marry Willa. He knew Willa lived for a while with Otis March (who did not show up at trial). Charles told Stuart, "he knowed Bryan was his. He said he was going to raise him, because he had three children by her", Patricia, Tina and Bryan. Willa told him that Charles was the father of Bryan about 1963 or 1964, when Bryan had the last name of Pearson. Otis Earl March told Stuart on the phone recently, that Bryan's middle name "Earl" "wasn't none of his", and that Bryan "wasn't none of his boys." Stuart's wife, mother of Willa, confirmed Stuart's testimony Otis March told her on the telephone that he was not Bryan's father, and both Willa and Charles told her that Bryan was Charles' son.

Contrary evidence, which on the issue of credibility was for the trial court to evaluate, was this: Catherine Chapple, who worked with Willa at DIT-MCO Company, testified that Willa told her that Charles was not the father of all her children, and mentioned Michael Pearson, Renee Pearson and Chuckie Pearson. Latanya and the youngest child were Johns. Vivireen Carter, a neighbor, testified that Willa said that Chuckie's father lived in Chicago. Dorothy Ruth Simpson, also a co-worker of Willa, testified that Willa had told her Chuckie was not Charles' son but that he was Otis March's. Charles' former wife, Daisy, to whom he was married at the time Bryan was born, testified that Charles had told her that Bryan was the son of one Jim Thomas, who was living with Willa and Otis March at the time. Hazel Conway, Charles' sister, testified that Otis March told her he was the father of Renee, Chuckie and Latanya. When Otis was in town, Willa would take the children to see him.

The rules concerning the pedigree exception to the inadmissibility of hearsay evidence is stated in Osmak v. American Car & Foundry Co., 328 Mo. 159, 40 S.W.2d 714 (Mo.1931), where the testimony of a witness that her father and mother had stated in her presence that they were not married, and that the father had never been divorced from his wife in the old country (the issue being the alleged wife's right to maintain a suit for penalty for wrongful death). The court said, page 718, "The declarations concerned matters of family history; they were made ante litem motem; and the declarants were dead. The statements fall within a well-established exception to the hearsay rule and were clearly admissible. Imboden v. Trust Company, 111 Mo.App. 220, 86 S.W. 263." See also Gordon v. Metropolitan Life Ins. Co., 238 Mo.App. 46, 176 S.W.2d 506 (1943), in which the Osmak case is cited and quoted; Haley v. Metropolitan Life Insurance Company, 434 S.W.2d 7, 10(3, 4) (Mo.App.1968); and see the discussion, Wigmore on Evidence, Chapter 51, "Declarations About Family History (Pedigree)." The conditions therein stated for admissibility of pedigree declarations are here satisfied: § 1481, the declarant must be unavailable (here, both Willa and Johns are deceased); § 1482, there must be a circumstantial indication of trustworthiness, "It is natural for persons to talk of their own situations and of their families. The evidence is in its nature of an unsuspicious kind; it is generally brought from remote times, when no question was depending or even thought of, and when no purpose would apparently be answered." (Quoting from R. v. Eriswell, 3 Term R. 707, 720 (1790)); § 1483, the declarations must have been made before controversy, "ante litem motam," that is, before there is any motive to falsify. Here, Willa's verified petition for Bryan's change of name, and her in-court testimony relative thereto, had simply to do with that...