Mattingly v. Cummings
| Decision Date | 03 October 1980 |
| Parties | Audrey K. MATTINGLY v. Walter D. CUMMINGS et al. 79-17. |
| Court | Alabama Supreme Court |
Gary A. Moore of Shores & Moore, Fairhope, for appellant.
Greg F. Jones, Robertsdale, for appellees.
This is an appeal from an order of the Circuit Court of Baldwin County denying Audrey K. Mattingly, the mother of a deceased minor, the right to intervene in the wrongful death action initiated by her ex-husband, Walter D. Cummings, the deceased minor's father. We affirm.
The undisputed facts are that in December, 1978 Dwaine L. Cummings, a minor, was struck and killed by an automobile occupied by Paula Dukes and Kenneth W. Clark. On May 21, 1979 Walter Cummings commenced a wrongful death action against the occupants of the car. On July 11, Audrey Mattingly filed an amended motion to intervene in the lawsuit commenced by her ex-husband, alleging that because she was awarded the care, custody, and control of her children in a divorce decree against Cummings, she was allowed, as a matter of right, to intervene in the action. On August 22, the trial judge denied her amended motion to intervene, from which she appeals.
The constitutionality of Code of 1975, § 6-5-391 conferring a right to bring a wrongful death action of a minor and its reference to the conditional provisions in § 6-5-390 are at issue. These Code sections state:
§ 6-5-391. Wrongful death of minor.
When the death of a minor child is caused by the wrongful act, omission or negligence of any person, persons or corporation, his or their servants or agents, the father, or the mother in cases mentioned in section 6-5-390, or, if the father and mother are both dead or if they decline to commence the action, or fail to do so, within six months from the death of the minor, the personal representative of such minor may commence an action, and in any case shall recover such damages as the jury may assess; provided, that an action by any one of them for the wrongful death of the minor shall be a bar to another action either under this section or under section 6-5-410. (Code 1876, § 2899; Code 1886, § 2588; Code 1896, § 26; Code 1907, § 2485; Code 1923, § 5695; Code 1940, T. 7, § 119.)
§ 6-5-390. Injury to minor child.
A father or, in case of his death or desertion of his family, his imprisonment for a term of two years or more under a conviction for crime, of his confinement in an insane hospital or if he has been declared of unsound mind, the mother may commence an action for an injury to a minor child, a member of the family. (Code 1852, § 2135; Code 1867, § 2531; Code 1876, § 2898; Code 1886, § 2587; Code 1896, § 25; Code 1907, § 2484; Code 1923, § 5694; Code 1940, T. 7, § 118.)
When read together, these two sections provide that the father shall have the primary right to commence an action for the wrongful death of his minor child, and the mother has a secondary right to do so. Her right to initiate the action is contingent upon the father's inability to do so on account of his death, desertion, imprisonment, or insanity. Although that priority has been recently amended, effective July 19, 1979, nevertheless the original section was in effect when this cause of action arose.
Mrs. Mattingly contends that these statutes, creating gender based classifications, violate the Fourteenth Amendment of the United States Constitution and Article I of the Alabama Constitution, because they deny the mother a right equal to the father's to bring an action for the wrongful death of a minor child without any substantial justification for doing so. Mr. Cummings asserts that the statutes are constitutional because the father is primarily liable for the support and maintenance of his minor children; therefore, the father should be granted the primary right to recover damages from a wrongful death action of his child. Relying upon our decision in Jones v. Jones, Ala., 355 So.2d 354 (1978), that the mother's conditional right to bring a wrongful death action is constitutional, the lower court found that Mrs. Mattingly had no standing to intervene in the wrongful death action because the child's father had previously filed the lawsuit.
In Thorne v. Odom, Ala., 349 So.2d 1126 (1977), and Jones v. Jones, Ala., 355 So.2d 354 (1978), both cases having involved actions for the wrongful death of minor children, this Court upheld the classification establishing the father's conditional priority to maintain the action and receive any damages awarded. We quote from Jones, supra at 355-6:
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 Constitution of the United States and the State of Alabama, because it discriminates against mothers of minor children. This argument was advanced and rejected in the recent case of Thorne v. Odom, 349 So.2d 1126, 1128 (Ala.1977), where this court said:
Having given careful attention to the appellant's arguments, nevertheless we adhere to the views this Court expressed in those cases.
Let the judgment be affirmed.
AFFIRMED.
The Court was called upon to reconsider the prior holding in Jones v. Jones, 355 So.2d 354 (Ala.1978), and to determine that the wrongful death statute, conferring a conditional right upon the mother to bring the action, yet conferring an absolute right upon the father, violates the equal protection clauses of the United States and Alabama Constitutions because it creates arbitrary and capricious gender based classifications. It is after careful reflection and deliberation, that I would hold that the gender based classifications created in §§ 6-5-391 and 6-5-390 are unconstitutional because they deny equal protection of the law without any substantial relationship to the intendment of the wrongful death statute.
The threshold determination to this conclusion is which of the three equal protection tests espoused by the United States Supreme Court applies to this action. I recognize that the traditional rational basis test is typically invoked when the statute under review relates to socioeconomic legislation. McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Railway Express Agency, Inc. v. New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533 (1949). Under this test the regulation must meet minimal judicial scrutiny so that the classification is rationally and reasonably related to the purpose for which the statute was created.
From the skeleton of this test, two other tests have been carved out. The compelling state interest test, when the statute is strictly construed, is applicable when fundamental rights have been encroached upon, Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), and when suspect classifications have been created. Only three classes have been declared to be suspect, those with reference to race, alienage, and religion. Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (race); Examining Board of Engineers, Architects and Surveyors v. Flores De Otero 426 U.S. 572, 96 S.Ct. 2264, 49 L.Ed.2d 65 (1976); Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) (alienage); Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969) (religion). It is well implanted within the minds of jurists that, to date, gender based classifications have been given the elevated status of a suspect classification by only a plurality of the Supreme Court. Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973). Therefore, it is understood that generally the compelling state interest test is not employed in these instances.
The third, nascent, test the substantial relationship test has received widespread acceptance for use in the area of gender based classifications. Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). Under this test the classifications must be greater than rationally related to the purpose for which the statute was created; these...
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