Jones v. Jones
Decision Date | 27 January 1978 |
Citation | 355 So.2d 354 |
Parties | Mary Alice JONES v. Bobby Ray JONES. 77-16. |
Court | Alabama Supreme Court |
N. J. Cervera of Cervera & Folmar, Thad Yancey, Jr., Troy, for appellant.
Oliver W. Brantley of Brantley & Calhoun, J. B. Wiley of Wiley & Wiley, Troy, for appellee.
Appellant and appellee are divorced parents of three children who were killed in an automobile accident while passengers in a car owned and operated by an uninsured motorist. Under the divorce decree, the father had custody of two of the deceased children; and the mother had custody of the other one. The father owned two automobiles, insured respectively by State Farm Insurance Company and Farm Bureau Insurance Company.
This action was brought by the father against State Farm and Farm Bureau under the uninsured motorist provisions in his policies. Both companies admitted liability up to the policy limits for the two children living with their father. The insurers then joined the mother as an additional party in an interpleader action. Both father and mother filed motions for summary judgment, the mother claiming one-half of the funds paid into court. No facts are disputed. The court granted the father's motion and the mother appealed.
The central issue is the mother's claim to a share in the funds. Title 7, §§ 118 and 119, Code of Alabama 1940 (Now, §§ 6-5-390 and 391, 1975 Code), provide:
The mother argues that any recovery under § 119 should be for the benefit of both parents and, in the alternative, that § 119 is unconstitutional because it discriminates on the basis of sex.
In Peoples v. Seamon, 249 Ala. 284, 287, 31 So.2d 88, 89 (1947), this court held:
"When a minor child is killed by the wrongful act of another, and he leaves surviving his father, the damages recoverable (under § 119) are for the benefit of the father, where the suit is by the father personally or by an administrator (Citations Omitted) . . . "
As recently as 1970, the holding of Peoples v. Seamon, supra, was followed in Adkison v. Adkison, 286 Ala. 306, 239 So.2d 562 (1970). The appellant concedes that Peoples and its progeny are contrary to the position which she takes, but argues that those cases should be overruled and a rule established which would permit parents of minor children negligently killed to share in the proceeds of any recovery based upon such negligence. We are not free to adopt such a rule. The language of the legislation supports the construction heretofore adopted by this court. It has long been established by the legislature that, as between the two parents, the father has the primary duty to support and maintain the minor children of the parties. It is free, therefore, to provide that the parent with this primary obligation is entitled to any damages recovered as a result of injury to or death of a minor child.
The appellant next argues that the legislation is invalid under the...
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