Cook v. Sager Brown School

• Decision Date: 25 March 1986
• Docket Number: No. 84,84
• Citation: Cook v. Sager Brown School, 486 So.2d 981 (La. App. 1986)
• Parties: 32 Ed. Law Rep. 386 John COOK, Individually and as Father of John Howard v. SAGER BROWN SCHOOL, State of Louisiana and XYZ Insurance Company. CA 1507.
• Court: Court of Appeal of Louisiana

Page 981

486 So.2d 981

32 Ed. Law Rep. 386

John COOK, Individually and as Father of John Howard v.SAGER BROWN SCHOOL, State of Louisiana and XYZ Insurance Company.

No. 84 CA 1507.

Court of Appeal of Louisiana First Circuit.

March 25, 1986.

Russell L. Breckenridge, New Orleans, for appellant.

John Moore, and J. Ashley Moore, Taylor, Porter, Brooks & Phillips, Baton Rouge, for appellees.

Before GROVER L. COVINGTON, C.J., and WATKINS and SHORTESS, JJ.

WATKINS, Judge.

John Morris Cook filed the present action against Sager Brown School, the State of Louisiana, and XYZ Insurance Company for the wrongful death of John Morris Howard, of whom plaintiff contends he is the biological father.Sager Brown School filed an answer denying liability, and later Sager Brown School and their insurer, The Atlantic Companies filed a peremptory exception of no right of action, contending that John Cook was not the biological father of decedent.The trial court after trial on the peremptory exception of no right of action sustained the exception.John Morris Cook appeals.We reverse and remand.

John Morris Howard was born out of wedlock to Mary Howard on December 1, 1967, in New Orleans, Louisiana.He was generally reared by his maternal great-grandparents, Mr. and Mrs. Lawrence Bessix.On May 27, 1978, John Morris Howard was placed in Sager Brown School where he drowned about two months later, allegedly as the result of culpable conduct on the part of Sager Brown School.

In a deposition taken after the wrongful death suit was filed, the mother, Mary Howard, stated that Lucas (sic) Spears, Jr. was the biological father of John Morris Howard.At trial on the exception of no right of action, Mary Howard conversely testified that John Morris Cook was the child's biological father.The trial court found that although the evidence preponderated that John Morris Cook was the biological father of John Morris Howard, John Morris Cook was not "plainly"the father of the child, as was the test the court stated we applied in Moore v. Thunderbird, Inc., 331 So.2d 555(La.App. 1st Cir.1976).We annex the reasons for judgment of the trial court in the present case for a statement of the facts, which we find free from error.

We agree with the trial court that plaintiff did prove he was the father by a preponderance of the evidence.However, we must differ with the trial court in its applying a "plainly"the father test as a requisite for proof of paternity in a wrongful death case, as opposed to a preponderance of the evidence test.We find no support in law for applying a more demanding standard of proof in this matter.

It is quite true that Glona v. American Guarantee and Liability Insurance Co., 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441(1968) stated as a matter of equal protection the biological mother of a child born out of wedlock must be allowed to bring an action for wrongful death if she is "plainly"the mother of the child.However, we do not consider Glona as establishing a rule or test for burden of proof, but rather, Glona uses the word "plainly" in a less formal sense.Any indication that "plainly" is a test established for burden of proof found in Moore v. Thunderbird, Inc., supra, and in Honeycutt v. City of Monroe, 253 So.2d 597(La.App.2d Cir.1971) must be regarded as purely dicta.We hold that the test applied in most civil cases, the preponderance of the evidence test, applies to a determination of paternity in a suit brought by the alleged father of an illegitimate child for that child's wrongful death.

Accordingly, the judgment of the trial court is reversed, the exception of no right of action is overruled, and the case is remanded for further proceedings.The assessment of costs to be determined upon final judgment.

REVERSED AND REMANDED.

APPENDIX

JOHN COOK

VERSUS

SAGER BROWN SCHOOL

No. 58579

SIXTEENTH JUDICIAL DISTRICT COURT

PARISH OF ST. MARY

STATE OF LOUISIANA

JULY 27, 1984

HONORABLE C. THOMAS BIENVENU, JR., JUDGE PRESIDING

BY THE COURT:

Defendant brings this Exception of No Right of Action contending that the plaintiff is not the proper party to bring this survival and wrongful death action as a result of the drowning death of a ten year old child, John Maurice Cook.

The evidence adduced at the hearing on July 26th, 1984 was designed to determine whether plaintiff was in fact the biological and legal father of this child.The child was born to Mary Howard before she married plaintiff.Her testimony is completely discredited in that her testimony at the trial is diametrically opposed to that given at her deposition.Some of her testimony at the trial or hearing even contradicted itself in certain respects.She admittedly has been a drug abuser, has had mental health problems and has been convicted of crimes.Her reasons given for lying when she says she lies and telling the truth when she says she is telling the truth are not even persuasive.It suffices to say that she is of no help to the Court in determining who is the father of the child.At the hearing Mary Howard said that plaintiff was the father, and he testifies that he is.At the deposition Mary Howard testified that Luther Spears was the father and at the hearing he said he was the father.The other testimony is to the effect that either could have been the father.Mr. and Mrs. Lawrence Bessix, Sr., the child's great grandparents, who essentially raised Mary Howard and then the child, testified that Luther Spears could have been the father, that Mary Howard and Luther Spears always claimed that he was the father and that plaintiff never acknowledged being the father.Doris Craig was only able to testify that at some time in the past plaintiff and Mary Howard lived together, so that it was possible for them to conceive a child.

While plaintiff and Mary Howard were married and living together, they petitioned the Family Court of East Baton Rouge for custody and at the hearing plaintiff testified that he was in fact the father of the child.That Court retained custody in the Bessixes but gave petitioners an approximately three month period of time in which to stabilize their lives, at which time he would reconsider the question of custody.The record in that case reflects that plaintiff and Mary Howard ran into difficulties during the interval, separated physically and that Mary Howard informed the Court...