Edenfield v. Jackson, 39943

Citation251 Ga. 491,306 S.E.2d 911
Decision Date21 September 1983
Docket NumberNo. 39943,39943
PartiesDavid J. EDENFIELD v. Angel JACKSON, b/n/f Ernell Thomas.
CourtSupreme Court of Georgia

Luhr G.C. Beckman, Jr., Andrew J. Hill III, Corish, Beckman, Smith & Pinson, P.C., Savannah, for David J. Edenfield.

Donald F. Ruzicka, Feldman, Rand & Ezor, P.C., Atlanta, for Angel Jackson, b/n/f Ernell Thomas.

HILL, Chief Justice.

Plaintiff, the illegitimate daughter of Willie L. Jackson, was acknowledged at birth by her father in writing and, at his request, his name appears on her Florida birth certificate. 1 On January 12, 1980, plaintiff's father was killed in an automobile accident on Interstate 95 in Savannah. At the time of her father's death, plaintiff was nineteen months old. Plaintiff, through her mother as next friend, sued David Edenfield, the driver of the other car involved in the accident, for the wrongful death of her father. The defendant sought summary judgment arguing that as an illegitimate, the plaintiff had no cause of action under Georgia law for the wrongful death of her father. The trial court held that OCGA § 51-4-2 (Code Ann. §§ 105-1302 to 105-1305) as interpreted by this court in Brinkley v. Dixie Construction Co., 205 Ga. 415, 54 S.E.2d 267 (1949), excludes illegitimate children from maintaining causes of action for the wrongful deaths of their fathers, and is therefore unconstitutional under decisions of the United States Supreme Court. The defendant's motion for summary judgment was accordingly denied. We granted his application for interlocutory review.

1. Creation of a cause of action for wrongful death depends upon our statutes, for no such right existed at common law. Eg., Burns v. Brickle, 106 Ga.App. 150, 151, 126 S.E.2d 633 (1962). The particular Code section upon which the plaintiff here relies is OCGA § 51-4-2(a) (Code Ann. § 105-1302) enumerating those persons entitled to bring a wrongful death action for the loss of a husband or father. It provides: "The widow or, if there is no widow, a child or children, either minor or sui juris, may recover for the homicide of the husband or father the full value of the life of the decedent, as shown by the evidence." (Emphasis supplied.) Thus, on its face the statute does not discriminate against illegitimate children.

In Brinkley v. Dixie Construction Co., supra, 205 Ga. 415, 54 S.E.2d 267, however, this court reaffirmed prior cases stating that "child or children" in this section did not include illegitimates. 2 In so holding the court relied in part on the fact that the next Code section, OCGA § 51-4-3 (Code Ann. § 105-1306), specifically enables illegitimate children to maintain actions for the wrongful deaths of their mothers. The General Assembly has never responded to Brinkley by including illegitimate children in OCGA § 51-4-2 (Code Ann. ss105-1302). In 1979, it did, however, amend OCGA § 19-7-1 (Code Ann. § 74-108), providing parents with a cause of action for the wrongful death of an illegitimate child, by adding subsection (c)(5): "In actions for recovery, the illegitimacy of the child shall be no bar to recovery." Ga.L.1979, p. 466. Thus, we can discern no legislative action which would change the Brinkley interpretation of OCGA § 51-4-2 (Code Ann. §§ 105-1302), as not including a cause of action for illegitimates upon the wrongful deaths of their fathers. Thus, accepting this as the present state of the Georgia law, we turn to the cases on the issue from the United States Supreme Court in order to assess its constitutionality.

2. The United States Supreme Court has made clear that under the equal protection clause the states may not discriminate on the basis of "immutable human attributes." Parham v. Hughes, 441 U.S. 347, 351, 99 S.Ct. 1742, 1745, 60 L.Ed.2d 269 (1979). Among these is illegitimacy. New Jersey Welfare Rights Organization v. Cahill, 411 U.S. 619, 93 S.Ct. 1700, 36 L.Ed.2d 543 (1973).

In Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968), five illegitimate children sued for the wrongful death of their mother. The Supreme Court held that a Louisiana court's interpretation of that state's wrongful death and survivorship statute that the word "child" means "legitimate child" constituted invidious discrimination against illegitimate children and that the statute as construed was unconstitutional.

In Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1971), the father of four dependent legitimate children and two dependent unacknowledged illegitimate children died as a result of injuries received during the course of his employment. The Supreme Court held that Louisiana's worker's compensation act which treated dependent unacknowledged illegitimate children as "other dependents", rather than as "children", and allowed legitimate children to receive the worker's compensation award to the exclusion of the unacknowledged illegitimate children was a denial of equal protection, saying: "The status of illegitimacy has expressed through the ages society's condemnation of irresponsible liaisons beyond the bonds of marriage. But visiting this condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffectual--as well as an unjust--way of deterring the parent." 3

Levy v. Louisiana, supra, involved the wrongful death of a mother, but Weber, supra, involved worker's compensation benefits due upon the death of a father. As noted in the quotation which follows, the Supreme Court no longer limits Levy to "mothers". The Court now reads Levy as applying to "parents".

Texas law allowed legitimate children, but not illegitimates, to claim parental support from their fathers. In Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973), the Court held the Texas law unconstitutional, saying (409 U.S. at 537-538, 93 S.Ct. at 874-875): "We have held that under the Equal Protection Clause of the Fourteenth Amendment a State may not create a right of action in favor of children for the wrongful death of a parent and exclude illegitimate children from the benefit of such a right. Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968). Similarly, we have held that illegitimate children may not be excluded from sharing equally with other children in the recovery of workmen's compensation benefits for the death of their parent. Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972). Under these decisions, a State may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded children generally. We therefore hold that once a State posits a judicially enforceable right on behalf of children to needed support from their natural fathers there is no constitutionally sufficient justification for denying such an essential right to a child simply because its natural father has not married its mother." (Emphasis supplied.) Deleting the words "to needed support from" in the last sentence quoted and inserting the words "to recover for the wrongful deaths of" in their place would make Gomez directly applicable here.

The Court in Gomez, supra, recognized the problem of proof of paternity of fathers (an argument advanced here), but said (409 U.S. at 538, 93 S.Ct. at 875): "We recognize the lurking problems with respect to proof of paternity. Those problems are not to be lightly brushed aside, but neither can they be made into an impenetrable barrier that works to shield otherwise invidious discrimination."

On the other hand, legislation regarding illegitimates has been upheld where "the statute does not broadly discriminate between legitimates and illegitimates without more, but is carefully tuned to alternative considerations." (Emphasis supplied.) Mathews v. Lucas, 427 U.S. 495, 513, 96 S.Ct. 2755, 2766, 49 L.Ed.2d 651 (1976).

The Georgia statute as interpreted by this court in Brinkley v. Dixie Construction Co., supra, 205 Ga. 415, is constitutionally flawed because it discriminates purely on the status of illegitimacy and is not "carefully tuned to alternative considerations," as mandated by the Supreme Court. Mathews v. Lucas, supra; Trimble v. Gordon, 430 U.S. 762, 772, 97 S.Ct. 1459, 1466, 52 L.Ed.2d 31 (1976). Under OCGA § 51-4-2 (Code Ann. § 105-1302), all illegitimates, without exception, are denied the right to sue for the wrongful deaths of their fathers no matter what the actual relationships between the children and their fathers. 4 Such a blanket exclusion is not justified by problems of proof, Gomez v. Perez, supra, 409 U.S. at 538, 93 S.Ct. at 875, particularly where the father of an illegitimate child is permitted to recover for the wrongful death of such...

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