Goldmyer v. Van Bibber

• Decision Date: 15 May 1924
• Docket Number: 18253.
• Citation: 225 P. 821,130 Wash. 8
• Court: Washington Supreme Court
• Parties: GOLDMYER v. VAN BIBBER.

225 P. 821

130 Wash. 8

GOLDMYER v. VAN BIBBER.

No. 18253.

Supreme Court of Washington

May 15, 1924

Department 2.

Appeal from Superior Court, Lewis County; Reynolds, Judge.

Action by Theo.Goldmyer against James Van Bibber.From a judgment of dismissal, plaintiff appeals.Reversed and remanded, with directions.

C. D Cunningham, of Centralia, and Forney & Ponder, of Chehalis for appellant.

W. E Bishop, of Chehalis, and W. H. Abel, of Montesano, for respondent.

PEMBERTON, J.

Appellant instituted this action against respondent for the recovery of damages for the death of her minor child.She alleges in her complaint:

'That on, to wit, the 2d day of August, 1922, near Riffe Lewis county, Wash., the defendant engaged in an altercation with the said Carl Hemrick, minor son of this plaintiff, during which the defendant, without any just provocation, cause or lawful excuse therefor wrongfully, wantonly, willfully, unlawfully, carelessly and recklessly shot the said Carl Hemrick with a loaded and deadly revolver pistol which defendant then and there held in his hand, with the result thereof that on the said 2d day of August, 1922, the said Carl Hemrick died.'

A jury was impaneled to try the case.It was admitted by appellant that she was proceeding under section 184, Rem.Comp. Stat; that her minor child, Carl Hemrick, was born out of wedlock; that the family relation of husband and wife never existed between appellant and the father of the deceased child, and that the child had never been legitimatized.Respondent moved to dismiss the action on the ground that the appellant had no legal capacity to sue.The motion was granted and judgment of dismissal entered, from which this appeal is taken.

Section 184, supra, reads as follows:

'A father, or in case of the death or desertion of his family, the mother may maintain an action as plaintiff for the injury or death of a child, and a guardian for the injury or death of his ward.'

This law was passed in 1869 and re-enacted in 1873.

Our statute provides that----

'The common law, so far as it is not inconsistent with the Constitution and laws of the United States, or of the state of Washington, nor incompatible with the institutions and condition of society in this state, shall be the rule of decision in all the courts of this state.'Section 143, Rem.Comp. Stat.

It is admitted that at common law the word 'child' in section 184, supra, means 'legitimate child' only.

Appellant calls to our attention sections 1345and1346, Rem.Comp. Stat., passed in 1875.Section 1346 restores the right of inheritance between the mother and an illegitimate child, and section 1345 provides a method whereby the father may acknowledge the child in writing and the child may thereafter inherit from his father.

It is the contention of appellant that the common-law rule of nullius filus is inconsistent with our law permitting an illegitimate child to inherit from its mother, and providing a method whereby its right of inheritance may be allowed through recognition by its father, and therefore the commonlaw rule no longer obtains in this state.

In the case of In re Gorkow's Estate,20 Wash. 563, 56 P. 385, where a father during his lifetime had acknowledged his illegitimate child in writing, this court held that he was bound to support the child while living, and his estate was required to support the child after the death of the father.We said:

'There appears no substantial reason for drawing a refined distinction between the acknowledged illegitimate child and the lawful child, as between them and their father's estate.It is not necessary to follow the discussion, and determine whether all taint of bastardy has been removed from the acknowledged child.It is sufficient to hold that he comes within the terms of the statute for an allowance from the estate pending its settlement.Such allowance as prescribed by the statute is within the sound judgment of the court as to the amount.'

If there should be no distinction between illegitimate children acknowledged by the father and his lawful children there certainly can be no lawful distinction between the children of the mother, the law requiring no formal acknowledgment on her part.

In the case of Hadley v. City of Tallahassee,67 Fla. 436, 65 So. 545, Ann. Cas. 1916C, 719, the court said:

'In the broad language of the statute itself, it was to furnish a remedy for the death of 'any minor child' by the wrongful act, negligence or carelessness of another.Could it have been the intention of our lawmaking power in the enactment of this law, to exclude from its remedial provisions the unfortunate illegitimate for whose misfortune of birth he has no sort of personal responsibility, thereby making him a double outcast, with no right to the protection of the law for his life, leaving him the unprotected target for the willful, negligent and careless on every hand?We are not inclined to give the statute such a construction; but our better judgment leads us to hold with those courts, that in the construction of statutes similar in all material respects to ours, have held that the mother of an illegitimate minor child, and the mother alone, has the right to sue for and recover damages for the death of such child by the wrongful act, negligence, carelessness or default of another.'

This rule seems to be supported in a majority of the states.Marshall v. Wabash R. Co.,120 Mo. 275, 25 S.W. 179;Galveston, etc., R. Co. v. Walker,48 Tex.Civ.App 52, 106 S.W. 705;Andrzejewski v. N.W. Fuel Co., 158 Wis. 170, 148 N.W. 37;Kenney v. Seaboard Air Line, 167 N.C. 14, 82 S.E. 968, Ann. Cas. 1916E, 450, affirmed in 240 U.S. 489, 36 S.Ct. 458,...