L.T. Dickason Coal Co. v. Liddil

• Decision Date: 17 March 1911
• Docket Number: No. 7,182.,7,182.
• Citation: 94 N.E. 411,49 Ind.App. 40
• Parties: L. T. DICKASON COAL CO. v. LIDDIL.
• Court: Indiana Appellate Court

49 Ind.App. 40

94 N.E. 411

L. T. DICKASON COAL CO.

v.LIDDIL.¹

No. 7,182.

Appellate Court of Indiana, Division No. 2.

March 17, 1911.

Appeal from Circuit Court, Green County; Chas. E. Henderson, Judge.

Action by Charles Liddil, administrator, against the L. T. Dickason Coal Company. Judgment for plaintiff, and defendant appeals. Affirmed.E. E. Stevenson, Lee F. Bays, Fred F. Bays, and O. B. Harris, for appellant. Oscar E. Bland and W. V. Moffett, for appellee.

LAIRY, J.

This is an action for damages for the death of Raymond Liddil, based upon the alleged negligence of the appellant. This action is brought by the administrator of Raymond Liddil for the benefit of the next of kin of said decedent, which, according to the averments of the complaint, consist of his mother, Sarah Sourwine, his half-brotherers Earl and Williar Sourwine, and Grace Sourwine, his half-sister. A demurrer to the complaint was filed and overruled, and the appellant then filed an answer in general denial, and also an affirmative paragraph of answer setting up the fact that the decedent, Raymond Liddil, was the illegitimate child of Sarah Liddil, born out of wedlock, and that his father was never married to Sarah Liddil; that she afterward married a man named Sourwine, who died in October, 1905. A demurrer to this paragraph of answer was sustained. The case was tried upon the issues formed by the complaint and the answer of general denial, and a judgment rendered in favor of appellee, from which this appeal is taken.

The action of the trial court in sustaining the demurrer to the second paragraph of answer is assigned as error, and this presents the question most strongly urged upon this court as a ground of reversal. The demurrer to the second paragraph of answer admits that the deceased for whose death the action was brought was the illegitimate son of Sarah Sourwine. It is contended by appellant that, on account of such illegitimacy, he could have no next of kin for whose benefit the action could be maintained; that at common law a bastard had no father, and was considered the son of nobody, being sometimes called “filius nullius” and sometimes “filius populi”; that a statute giving a right of action for the death of a human being is in derogation of the common law, and must be strictly construed; that the persons named in the statute as the persons for whose benefit the action can be maintained exclude all others; and that a strict construction of our statute excludes the mother of an illegitimate child and its half-brothers and sisters from the class of beneficiaries known as next of kin, for whose benefit an action of this kind is authorized by statute. In support of this contention appellant cited a number of cases, some of which are from the highest court of this state. McDonald v. Pittsburgh, etc., R. Co., 144 Ind. 459, 43 N. E. 447, 32 L. R. A. 309, 55 Am. St. Rep. 185;Thornburg v. American Straw, etc., Co., 141 Ind. 443, 40 N. E. 1062, 50 Am. St. Rep. 334;Citizens' Street Ry. Co. v. Cooper, 22 Ind. App. 462, 53 N. E. 1092, 72 Am. St. Rep. 319;Illinois, etc., R. Co. v. Johnson, 77 Miss. 727, 28 South. 753, 51 L. R. A. 837;Alabama, etc., R. Co. v. Williams, 78 Miss. 209, 28 South. 853, 51 L. R. A. 836, 84 Am. St. Rep. 624;Fabel v. Cleveland, etc., R. Co., 30 Ind. App. 268, 65 N. E. 929. It is undoubtedly true that, by the common law, a bastard was looked upon as the child of nobody. “He cannot be heir to any one, neither can he have heirs, but of his own body; for being nullius filius, he is therefore of kin to nobody, and he has no ancestor from whom any inheritable blood can be derived.” 1 Bl. Com. 459. Kent says: “The rule that a bastard is nullius filius applies only to the case of inheritances. It has been held to be unlawful for him to marry within the Levitical degrees; and a bastard has been held to be within the marriage act of 26 Geo. II, which required the consent of the father, guardian, or mother to the validity of the marriage of a minor. He also takes and follows the settlement of his mother. With the exception of the right of inheritance and succession, bastards, by the English law, as well as by the law of France, Spain, and Italy, are put upon an equal footing with their fellow subjects; and in this country we have made very considerable advances toward giving them also the capacity to inherit by admitting them to possess inheritable blood.” 2 Kent, Com. (13th Ed.) 214. It will be seen that the chief incapacity of a bastard consisted in his want of inheritable blood. This want has been supplied in this state by statute, and the harsh rule of the common law which forbade an illegitimate child inheriting from its mother or she from it has been thereby abrogated. The statute conferring upon illegitimate children the right to inherit from the mother is as follows: “Illegitimate children shall inherit from the mother as if they were legitimate, and through the mother, if dead, any property or estate which she would, if living, have taken by gift, devise, or descent from any other person.” Burns' Rev. Stat. 1908, § 2998. The statute conferring upon the mother of an illegitimate child and her descendants the right to inherit from such illegitimate child is as follows: “The mother of an illegitimate child dying intestate, without issue or other descendants, shall inherit his estate; and if such mother be dead, her descendants or collateral kindred shall take the inheritance in the order hereinbefore prescribed.” Burns' Rev. Stat. 1908, § 3002.

The question here involved has never been before either the Supreme or Appellate Court in a case where it was directly presented and decided. Three cases are cited from this state in which the question under consideration was discussed as bearing upon the questions therein decided, but these cases are not decisive. The effect of the statutes hereinbefore quoted was not discussed in either of such cases, and a consideration of these statutes was not necessary to their proper decision of the question before us in the case. In the case of McDonald v. Pittsburg, etc., R. Co., supra, the putative father of an illegitimate child who had acknowledged it and reared it as his own sought to recover damages resulting from its alleged wrongful death. The action was brought under the provisions of section 267, Burns' Rev. Stat. 1908, conferring upon a father the right to maintain an action for the death of his child. The question as to whether or not the putative father under the circumstances was the next of kin to the child was not involved. Our statutes do not confer upon the putative father of a bastard the right to inherit from him, even though he may have acknowledged such child as his own, and so the reasons for holding that the mother of such a child is its next of kin do not apply with equal force in favor of the putative father. In the case of Thornburg v. American, etc., Co., supra, the appellant brought an action for the death of the illegitimate son of his wife. The court rightly denied a recovery in his favor, saying: “It is not necessary to decide who, if any one, was the proper party to bring this action, whether the mother or an administrator. That question is not before us. What we adjudge is that appellant, whether properly called a step-father or not, cannot maintain this action.” This case is easily distinguished from the case at bar, and what we have said in reference to the preceding case applies with equal force to this. In the case of Citizens' Street R. Co. v. Cooper, supra, a woman brought an action under the provisions of section 267, Burns' Rev. Stat. 1908, to recover damages for the death of a child reared by her in her family. It did not appear that she was its mother, or that she had legally adopted the child. As the statute giving to a parent the right to recover damages for the death of a child is in derogation of the common law and must be strictly construed, it will be seen at once that a person not standing in the relation of a parent could not recover by virtue of its provisions. Under the facts as presented, no other conclusion could be reached, and a recovery was properly denied.

This action is brought by the administrator of the deceased illegitimate child under the provisions of section 285, Burns' Rev. Stat. 1908, and the question is whether the mother of such child is its next of kin, or whether such child has no next of kin, within the meaning of the provisions of that section. As we have seen, the statutes of this state give to such a child the right to inherit from its mother, and to the mother and her descendants and collateral kindred a right to inherit from such child. In this state there is no distinction between heirs at law and next of kin. “At common law the chief practical difference between next of kin and heirs at law is that the former take the personal property by distribution, and the latter the real estate by descent. But under our statutes of descent, no such distinction is recognized, and the heirs at law are also the next of kin.” Henry's Probate Law, § 819. In the case of Rogers v. Weller, the federal court construed the term, “next of kin,” as applied to an illegitimate child, in connection with a statute of Illinois similar to our own. The court said: “The effect of this statute is to give to the illegitimate children of the mother inheritable blood. So far as our state is concerned, they are vested by the operation of this statute with the qualities of inheritance. They can receive from the mother by descent and take real estate and other property to the same extent as legitimate children, and taken in connection with the subsequent statute of 1853, which has first been discussed, it seems to me that the better interpretation is that the term ‘next of kin,’ used in the last clause of the act of 1853, includes illegitimate children, if such exist, of the mother, where the mother is heir.” Rogers v. Weller,...