Garza on Behalf of de la Rosa v. Maverick Market, Inc.

• Decision Date: 31 December 1987
• Docket Number: No. 13-86-511-CV,13-86-511-CV
• Parties: Maria GARZA, as Next Friend of Celia Garza and on Behalf of Miguel de la ROSA, Jr., Appellant, v. MAVERICK MARKET, INC., Appellee.
• Court: Texas Court of Appeals

Page 286

744 S.W.2d 286

Maria GARZA, as Next Friend of Celia Garza and on Behalf of Miguel de la ROSA, Jr., Appellant, v. MAVERICK MARKET, INC., Appellee.

No. 13-86-511-CV.

Court of Appeals of Texas Corpus Christi.

Dec. 31, 1987.

Rehearing Denied Feb. 4, 1988.

Ramon Garcia, Edinburg, Thomas O. Matlock, Jr., McAllen, for appellant.

Ben A. Donnell, Meredith, Donnell & Abernethy, Corpus Christi, Gene Creely, II, Meredith, Donnell & Abernethy, Houston, for appellee.

Before NYE, C.J., and SEERDEN, and KENNEDY, JJ.

OPINION

SEERDEN, Justice.

This wrongful death case was filed by Maria Garza (Garza) as next friend of her minor son, Miguel Angel de la Rosa, Jr. (Jr.) against Maverick Market (Maverick) for its alleged negligence in selling beer to Jesus Escobar and Miguel Angel de la Rosa (purported to be the father of Jr.) the driver and passenger in the vehicle involved in a collision. The trial court granted a directed verdict in favor of Maverick. We affirm the trial court's judgment.

The underlying facts concerning the collision which caused the death of Miguel de la Rosa are not necessary to our disposition of this cause. After Garza had rested her case, the trial court granted Maverick's motion for a directed verdict. The directed verdict was granted on three grounds;

(1) that Jr. was not entitled to recover because he was not "recognized" as the son of the decedent.

(2) that there was no evidence that any employee of Maverick committed any negligent act which contributed to the death of the decedent.

(3) that there was no evidence that any vice principal of Maverick committed any act which would subject Maverick to liability for punitive damages.

In reviewing the granting of a directed verdict by the trial court, we must consider the evidence in the light most favorable to the party against whom the verdict is directed, disregarding all contrary evidence and inferences. See Jones v. Tarrant Utility Co., 638 S.W.2d 862, 865 (Tex.1982); Texas Employers' Insurance Ass'n v. Page, 553 S.W.2d 98, 102 (Tex.1977). We must determine if there is any conflicting evidence of probative force to raise a fact issue on any theory of recovery. White v. Southwestern Bell Telephone Co. Inc., 651 S.W.2d 260, 262 (Tex.1983); Jones, 638 S.W.2d at 865. If there is any such evidence on any theory of recovery, a determination of that issue is for the jury. White, 651 S.W.2d at 262. A directed verdict is proper if the evidence proves conclusively the truth of fact propositions which, under the substantive law, established the right of the movant, or negate the right of his opponent to judgment. Ottis v. Haas, 569 S.W.2d 508, 512 (Tex.Civ.App.--Corpus Christi 1978, writ ref'd n.r.e.).

Garza's first point of error attacks the trial court's granting of the directed verdict because Jr. was not the "recognized" son of the deceased.

The decedent died on April 18, 1984. Jr. was born on October 25, 1984. The decedent was never married to Garza. There was no evidence that the decedent ever acknowledged that Garza was carrying his child. A decree of legitimation was entered in a proceeding brought under Chapter 13 of the Texas Family Code but was excluded from the evidence by the trial court as being irrelevant to any issue in the case. During the trial, both Garza and the deceased's mother testified that Jr. was the son of the deceased.

We agree with appellant that the child of one wrongfully killed by another has standing to bring a wrongful death action regardless of whether or not the child is legitimate or illegitimate. See Mathews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976); Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973); Weber v. Aetna Casualty and Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972); Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968).

However, this is not the correct legal posture in which Jr. was characterized before the trial court. The trial court found that Jr. was the "unrecognized" illegitimate child of the deceased. In other words, there was no evidence in the record to establish that Jr. was the child of the deceased at all. This is a threshhold inquiry which precedes the question of legitimation.

The question of what constitutes "recognition" of an illegitimate child is answered essentially by definition of the operative term "recognized." If the father has acknowledged a child as his own by some affirmative act such as a statement of paternity or consent to use his name on a birth certificate or agreeing to accept financial responsibility for the child, then the child may be "recognized" as the child of the individual. See generally Mills v. Edwards, 665 S.W.2d 153 (Tex.App.--Houston [1st Dist.] 1983, no writ); Batchelor v. Batchelor, 634 S.W.2d 71 (Tex.App.--Fort Worth 1982, writ ref'd n.r.e.); Johnson v. Mariscal, 620 S.W.2d 905, 908 (Tex.Civ.App.--Corpus Christi 1981), writ ref'd n.r.e. per curiam, 626 S.W.2d 737 (Tex.1982). Likewise, the child may become "recognized" if paternity is established by a proceeding under Tex.Fam.Code Ann. § 13.01 et seq. (Vernon Supp.1987).

Garza brought suit under the auspices of the Texas Wrongful Death Statute, Tex.Civ.Prac. & Rem.Code Ann. § 71.001 et seq. (Vernon 1986). ¹ Section 71.004 specifically provides that an action for wrongful death may be brought by the children of the deceased. See Heil Co. v. Grant, 534 S.W.2d 916 (Tex.Civ.App.--Tyler 1976, writ ref'd n.r.e.). The word "children" as used in the statute has been held to apply to illegitimate children. American General Insurance Co. v. Alexander, 216 S.W.2d 997 (Tex.Civ.App.--Beaumont 1948, writ ref'd); Galveston, H. & S.A. Ry. Co. v. Walker, 48 Tex.Civ.App. 52, 106 S.W. 705 (1908, writ ref'd).

The Family Code, in Section 11.01(1), defines "child" to mean a person under 18 years of age who is not and has not been married or who has not had his disabilities removed for general purposes. The Probate Code, in Section 3(b), defines "child" to include an adopted child but not an unrecognized illegitimate child of the father. We believe that, at least for the purposes of standing to bring suit under the Wrongful Death Act, a child must meet the definition of child set forth in the Family and Probate Codes.

In order for a child to be "recognized" under the Probate Code, Section 42(b) provides that the child becomes legitimate if born or conceived before or after marriage of its parents or if the child is legitimated by a court decree as provided by Chapter 13 of the Family Code or if the father executed a statement of paternity as provided by Chapter 13 of the Family Code, or if the father executed a like statement in another jurisdiction. The Probate Code also provides a mechanism for an illegitimate child to petition the court to determine its right to inheritance.

Turning to the record in this case, we find no evidence that establishes that Jr. was the "recognized" child of the deceased. The testimony of Garza and the deceased's mother were not probative on the question and constitute no evidence. It is possible to establish paternity through the uncorroborated testimony...