Illinois Central Railroad Company v. Johnson

• Decision Date: 07 May 1900
• Citation: 77 Miss. 727,28 So. 753
• Court: Mississippi Supreme Court
• Parties: ILLINOIS CENTRAL RAILROAD COMPANY v. SOPHRONIA JOHNSON

28 So. 753

77 Miss. 727

ILLINOIS CENTRAL RAILROAD COMPANY v. SOPHRONIA JOHNSON

Supreme Court of Mississippi

May 7, 1900

March 1900

FROM the circuit court of Lincoln county HON. ROBERT POWELL Judge.

Sophronia Johnson, the appellee, was the plaintiff in the court below the railroad company was defendant there. A judgment and verdict was rendered in the court below in plaintiff's favor for $ 1, 625, and the defendant appealed to the supreme court. The opinion states the facts.

Reversed and remanded.

Mayes & Harris, for appellant.

Section 1549 of the code of 1892 is in derogation of the common law, and it is well settled that such statutes, particularly relating to this subject, must be strictly construed, not only according to the letter of the act, but also in reference to the purposes for which the act was passed.

In Edwards v. Gaulding, 38 Miss. 118, it was held that a like statute, being an innovation of the common law, is to be strictly construed, and did not remove any disability or confer any rights on illegitimates except such as are specially named in the act. This same rule generally prevails. Hicks v. Smith, 94 Ga., 609; Ex parte O'Neal, 92 Pa. 193; 2 Am. & Eng. Enc. L., 130, notes.

The plaintiff in this action could have inherited, under the statute, any property which had been left by her deceased half sister, and that is all. A right of action to sue for her death is not inheritable. At common law personal actions died with the person, and it is only by virtue of statutory provisions that a suit could be brought in such case.

Plaintiff's right of action, if any at all, comes from Lord Campbell's act as amended, and that act being in derogation of the common law, must also be strictly construed, and cannot be held to embrace within its terms persons who at common law would not have had a right of action.

It has been held that the word "child, " as used in Lord Campbell's act, does not mean illegitimates. Dickerson v. Railroad Co., 2 Hurlestone & Coltman, English Exchequer, 734; Gibson v. Midland Railway Co., 15 Am. & Eng. R. R. Cases, 507; Porter v. Porter, 7 How. (Miss.), 107; Marshall v. Railway Co., 46 F. 269; Good v. Towne, 56 Vt., 410; Black on Law & Practice in Accident Cases, sec. 109, and cases cited; Tiffany on Death by Wrongful Act, paragraph 85; Edwards v. Gaulding, 38 Miss. 118.

It was not the intention of the lawmakers to embrace illegitimates in our adoption of Lord Campbell's act, because at common law they were not embraced, and Lord Campbell's act being in derogation of the common law, can only embrace such persons sustaining such relations to each other as are recognized as legitimate relations at common law, and therefore, must necessarily exclude bastards.

Cassedy & Cassedy, for appellee.

The construction of laws of 1898, p. 82, amending § 663, code, is involved. This statute gives to certain specified relatives a right of action in cases of wrongful injuries causing death. Whether the statutes mean only those members of a family recognized as brother and sister under the common law, or whether the term "sister" means, not only the daughter of the same mother born in wedlock, but also includes that class of unfortunates, the sins of whose mothers are visited upon their unoffending heads, is to be determined under the law as it now exists. At common law bastards were the children of nobody, not even their own mother, and had no kindred. They could not inherit, nor could any one inherit from them, save their own legitimate offspring. They were the beginning of their race, not even akin to humankind--monsters, so to speak--conceived in sin and born in iniquity, with no rights, no name, and no people. Such being the common law, debased and denied the common rights of humanity because of a misdirected public policy, when the word "child" was mentioned in a statute, or "children, " it did not include the bastard, nor could he be included in the "next of kin." We can understand and appreciate this reasoning, because the bastard, being the child of nobody, could not therefore have kindred. It was this harsh rule of the common law which was sought to be abolished in the several codes and acts of our legislature, from 1822 to 1892, by our several statutes of descent and distribution. And thus, under our statutes, the rule of the common law that an illegitimate had no inheritable blood; that he was not included amongst the children of a common mother, nor was he "a child, " nor could he be counted among the "next of kin, " has been abolished, and with it the reason of the rule. He could not inherit because he had no inheritable blood; he could have no brothers or sisters, because he was the son of nobody, and had no kindred for the same reason. But under our statute of descent and distribution, he has a mother, brothers, sisters, and kindred, and the mother being always certain, he inherits from her, her children, and her kindred. Under this state of the statute law of the state, the bastard being recognized as having some rights, that he has a mother and could inherit from her, and her "other children" and her "kindred, " thus creating for him a mother, sisters and brothers, and fixing for him the tie of family relationship, the statute of 1898 was enacted.

Surely that act, saying that when such deceased person shall have left a mother or sister or brother, it did not only mean a legitimate mother, sister or brother, and exclude the bastard, and, we submit, the lawmakers had no such idea.

In view of our statute of descent and distribution (chapter 33 of the code, the act in question dividing the damages in accordance therewith), the act of 1898 was meant to include all persons who bore that relationship at the time of the passage of the law and who were recognized as such both by law and custom. In the absence of this statute of descent and distribution, of course the bastard would not have been contemplated in the act of 1898, because, applying the common law (and it is presumed that the act was written with reference to the existing law), he had no mother, sister, or brother or next of kin.

In the case of Porter v. Porter, 7 How. (Miss.), 106, the court holds that bastards are not contemplated under the word "children" in our statute of descent and distribution as it existed at that time. This case was decided prior to the act of 1846, and, of course, prior to the several codes since that time, so the decision can be of no force now under the changed condition of the law on the subject. All the cases, in all the states, where the interests of a bastard were at stake, turned upon the peculiar phraseology of the particular statute, and such statutes as were in pari materia. It has been the intention of the legislature, evidenced by the several statutes, to change the common law entirely as to bastards. That rule was that they had no inheritable blood. Now they have. That rule was, dying intestate, leaving no heirs of their body, their property escheated to the crown; now it would be disposed of in accordance with our statute of descent and distribution. In other words, a bastard, under our laws as they now exist, is entitled to all and every benefit of the law as if he were legitimate, so far as the mother and her kindred are concerned. The only difference is that the children of illegitimates "cannot inherit from any ancestor or collateral kindred if there be legitimate heirs of such ancestor or collateral kindred in the same degree to whom the estate would otherwise descend." If this is a badge of disgrace, it was once applied to the half-blood born in lawful wedlock. So we say that the illegitimate now has all the rights that a legitimate of the half-blood had, under the common law, with reference to the inheritance of property from and through the mother. This innovation of the common law has not been made by construction, either liberal or strict, but is the outcome of the wisdom of the lawmakers, beginning in the very dawn of our statehood and continuing up to the present time, evincing a determined purpose to give to the unfortunate, who could not choose for himself whether he would be the son of lust and dishonor or the child of lawful wedlock, the same rights enjoyed by his brother, who, by accident so far as he is concerned individually, came into the world with the blessings of the priest.

OPINION

CALHOON, J.

Under the laws of this state, can the illegitimate half sister bring an action for damages against a railroad company for negligently causing the death of her illegitimate half sister?

Dora Beard, a young woman of illegitimate birth, was killed in the incorporated municipality of Brookhaven by the employes of the appellant company by what is known as a "kicking switch." Sophronia Johnson, the appellee, was the illegitimate half sister of Dora Beard. They were...