Brown v. Edwards Transfer Co., Inc.

• Citation: 764 S.W.2d 220,32 Tex.Sup.Ct.J. 108
• Decision Date: 07 December 1988
• Docket Number: No. C-7147,C-7147
• Parties: Glenn Ray BROWN et al., Petitioners, v. EDWARDS TRANSFER COMPANY, INC., Respondent.
• Court: Supreme Court of Texas

Page 220

764 S.W.2d 220

Glenn Ray BROWN et al., Petitioners, v. EDWARDS TRANSFER COMPANY, INC., Respondent.

No. C-7147.

Supreme Court of Texas.

Dec. 7, 1988.

Rehearing Denied March 8, 1989.

Terry Hyatt and Tony D. Crabtree, Hyatt & Crabtree, P.C., Brenda Jeffers Damuth, Robert W. Hartson, Inc., Dallas, for petitioners.

Warwick J. Jenkins, Jenkins and Jenkins, P.C., Waxahachie, Michael L. Knapek, Jackson, Walker, Winstead, Cantwell & Miller, Dallas, for respondent.

GONZALEZ, Justice.

This is a wrongful death action which presents two issues: (1) whether the illegitimate children of a male decedent may recover under the Texas Wrongful Death Act; and (2) whether it was reversible error for the trial court to have refused to submit a question as to the decedent's alleged contributory negligence. Although the court of appeals held that the children could recover under the Wrongful Death Act, it reversed and remanded the cause because the trial court had erred in not submitting the issue of contributory negligence to the jury. 740 S.W.2d 47. ¹ We affirm the judgment of the court of appeals.

Robert L. Jenkins was an employee of Acme Paper Stock Company. On August 24, 1981, Jenkins was riding on a freight elevator when the cable broke. The elevator hoist motor fell on Jenkins which resulted in his death. The hoist motor and lifting cables were installed by employees of Edwards Transfer Company. Edwards' employees used steel cables to mount the hoist from an I-beam which ran along the ceiling in Acme's warehouse. The employees, however, did not use "softeners" to protect the cables against the sharp edges of the beam.

Acme intended that the platform be used solely as a freight elevator. Accordingly, Acme employees were warned not to ride the platform as it was not safe for use as a personnel elevator.

Glenn Ray Brown, Ricky Brown, and Kay King, Jenkins' illegitimate children, brought a wrongful death action against Acme and Edwards. Mary Jenkins, the decedent's mother, intervened as a party plaintiff. Acme's workers' compensation carrier, U.S. Fire Insurance Company, also intervened to recover benefits paid to Mary Jenkins.

The trial court rendered a summary judgment for Acme against the claims of Mary Jenkins and U.S. Fire. In addition, the decedent's illegitimate children settled their claim against Acme. Accordingly, Acme is not a party to this appeal.

The case against Edwards proceeded to trial under the theories of negligence and gross negligence. The jury found that the plaintiffs (Petitioners) were the biological children of the decedent. The jury also found that Edwards was negligent in failing to use cable "softeners" when installing the hoist and that this negligence proximately caused Jenkins' death. The jury further found that Edwards' actions constituted gross negligence and that the plaintiffs suffered damages. The trial court rendered judgment for the plaintiffs in accordance with the jury verdict.

Illegitimate Children--Cause of Action

The first issue is whether a male decedent's illegitimate offspring are his "children" for the purpose of bringing a cause of action under the Texas Wrongful Death Act. See TEX.CIV.PRAC. & REM.CODE ANN. §§ 71.001-.011 (Vernon 1986); see also, Note, Illegitimates and Intestate Succession in Texas: Developments in the Law, 16 HOUS.L.REV. 740, 741-42 (1979) (it has long been recognized in Texas that a child is illegitimate only to the putative father; a child's circumstances of birth do not affect its ability to inherit from its mother). Edwards makes two arguments on this issue. First, it asserts that the children have no standing to bring a cause of action for the wrongful death of their biological father. Second, assuming the illegitimate children have standing under the Wrongful Death Act, Edwards argues that there is no evidence that they are Jenkins' biological children.

The court of appeals held that Jenkins' illegitimate children were not required to comply with the requirements of section 42(b) of the Probate Code in order to recover under the Wrongful Death Act. 740 S.W.2d at 49. The court of appeals addressed both the no evidence and insufficient evidence points in its previously unpublished opinion, holding that sufficient evidence exists to support the jury findings that the children in question are Jenkins' biological children.

Jenkins married Bonnie Scarlett in October of 1954 and there is no indication they were ever divorced. As far as can be ascertained from the record, Bonnie Scarlett gave birth to one son while married to Jenkins. That son's name is Robert Lee Jenkins, Jr.

Another woman, Eva Ward, testified that she had sexual relations with Jenkins which resulted in the birth of Kay King in 1953. Jenkins subsequently lived with another woman, Cora Lee Brown, and they produced two offspring. Glenn Ray Brown was born in 1957, and Ricky Brown was born in 1958. Jenkins admitted to third parties that he was the father of Kay King, Glenn Ray Brown, and Ricky Brown. After the accident, these persons brought a cause of action for the wrongful death of their father. Robert Lee Jenkins, Jr. did not join in this cause of action.

Recovery under the Texas Wrongful Death Act is limited to an exclusive class of persons. Only the "surviving spouse, children, and parents of the deceased" are authorized to bring a suit under the Act. See TEX.CIV.PRAC. & REM.CODE ANN. § 71.004(a) (Vernon 1986). Therefore, the critical question for Jenkins' children is whether the term "children," as set forth in the statute, applies to both legitimate and illegitimate children.

The Act itself does not provide a definition for the term "children." Edwards urges this court to interpret the word "children" under the Wrongful Death Act in accordance with the definitions set forth in the Probate Code. Section 3 of the Probate Code provides that except where the contrary is expressly stated, the unrecognized illegitimate child of a father is not the "child" of the putative father for the purposes of the Probate Code. TEX.PROB.CODE ANN. § 3(b) (Vernon 1980). Section 42(b) of the Probate Code provided, at the time of this litigation, that the child of the putative father becomes a "child" of the father under the Probate Code and for the "purpose of inheritance " under three exclusive circumstances: (1) when the child is born or conceived before or during the marriage of its father and mother; (2) when paternity is established by the involuntary proceedings under Chapter 13 of the Texas Family Code; or (3) when the biological father executes a voluntary statement of paternity under Section 13.22 of the Texas Family Code. Parental Inheritance Act, ch. 713, § 42, 1979 Tex.Gen.Laws 1743, amended by Illegitimate Children--Parental Inheritance Act, ch. 464, § 1, Vernon's Tex.Sess.Law Serv. 4085-86. See also Mills v. Edwards, 665 S.W.2d 153, 154-55 (Tex.App.--Houston [1st Dist.] 1984, no writ); Batchelor v. Batchelor, 634 S.W.2d 71, 72-74 (Tex.App.--Fort Worth 1982, writ ref'd n.r.e.).

While the Probate Code sets forth a comprehensive system for the settlement, partition, and distribution of property incident to an estate, "neither wrongful death nor survival actions are, or were intended to be, matters appertaining to or incident to estates." Seay v. Hall, 677 S.W.2d 19, 23 (Tex.1984); see also TEX.PROB.CODE ANN. § 5A(b) (Vernon Supp.1988). Wrongful death benefits attach to those classes of persons identified by the Act who suffer injury as a result of the death; wrongful death benefits do not belong to the decedent's estate. See Yowell v. Piper Aircraft Corp., 703 S.W.2d 630, 632 (Tex.1986). Moreover, "[t]he action for wrongful death is purely statutory and does not inure to the benefit of the children of a deceased by reason of inheritance." Go Int'l, Inc. v. Lewis, 601 S.W.2d 495, 498 (Tex.Civ.App.--El Paso 1980, writ ref'd n.r.e.).

Unlike the Workers' Compensation statutes, the Wrongful Death Act has no express or implied reference to the inheritance or descent and distribution provisions of the Probate Code. See TEX.REV.CIV.STAT.ANN. art. 8306, § 8a (Vernon Supp.1988). Additionally, section 71.010 of the Act expressly provides for the division of damages to be determined by the jury, not by descent and distribution laws. TEX.CIV.PRAC. & REM.CODE ANN. § 71.010 (Vernon 1986). We hold that "children," in the Wrongful Death Act, means filial descendants.

As noted previously, when this case went to trial, section 42(b) of the Probate Code provided only three means by which an illegitimate child could inherit through his or her paternal kindred. Since that time, section 42(b) has been amended to provide an additional procedure whereby illegitimate children may petition the probate court to determine their right of inheritance from the paternal kindred. TEX.PROB.CODE § 42(b) (Vernon Supp.1988). Upon a showing by clear and convincing evidence that a person is indeed the biological offspring of the father, that person is entitled to inherit through his or her paternal kindred, both ascendants and descendants. This amendment to the Probate Code shows that the legislature recognizes that illegitimate children should not be punished for circumstances in which they were born.

The legislature has applied the clear and convincing evidence standard for illegitimate paternity questions in both the Probate Code and the Family Code. TEX.PROB.CODE ANN. § 42(b) (Vernon Supp.1988); TEX.FAM.CODE ANN. § 13.05(b) (Vernon 1986). For consistency we therefore adopt the clear and convincing evidence standard for an illegitimate person to establish paternity under the Wrongful Death Act.

Turning to the no evidence point, considering only the evidence and inferences that support the finding of the jury and disregarding all evidence to the contrary, King v. Bauer, 688 S.W.2d 845, 846 (Tex.1985); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965), we hold that there is some evidence to support the jury's...