Moore v. Thunderbird, Inc.

• Decision Date: 12 April 1976
• Docket Number: No. 10655,10655
• Citation: 331 So.2d 555
• Parties: Virginia S. MOORE v. THUNDERBIRD, INC., et al.
• Court: Court of Appeal of Louisiana — District of US

Page 555

331 So.2d 555

Virginia S. MOORE v. THUNDERBIRD, INC., et al.

No. 10655.

Court of Appeal of Louisiana, First Circuit.

April 12, 1976.

Rehearing Denied May 24, 1976.

Charles R. Moore, Baton Rouge, for appellant.

Kenneth W. Cole, Lafayette, for defendants-appellees thunderbird, Inc. and Market Ins. Co.

David C. Kimmel, Baton Rouge, for defendants-appellees Elizabeth Charlene St. Angelo and Johnny Raymond St. Angelo.

Before LANDRY, COVINGTON and PONDER, JJ.

LANDRY, Judge.

This appeal by plaintiff (Appellant) presents the single issue of whether a father may recover damages for the wrongful death of his biological illegitimate child. Appellant, mother of her deceased illegitimate daughter, Karen Antoinette Vidrine, brings this action seeking damages, individually and as assignee of the rights of the child's biological father, Anthony Gus Vidrine, for the child's alleged wrongful death by drowning at a breach resort operated by defendant Thunderbird, Inc., the insured of defendant, Market Insurance Company. Also made defendants herein were Mr. and Mrs. St . Angelo, who accompanied the deceased child to the resort. Judgment was rendered below in favor of Appellant on her personal action against all defendants. No appeal has been taken therefrom. Judgment was also rendered below in favor of defendants Thunderbird, Inc., and its said insurer, sustaining said defendants' exception of no right of action and dismissing that portion of Appellant's claim predicated upon assignment of the rights of the biological father of the child. From this latter judgment Appellant appeals.

It is conceded that only the stated question of law is involved herein. For purposes for their exception, defendants Thunderbird, Inc. and Market Insurance Company concede that Anthony Gus Vidrine is the biological father of the child in question.

Prior to certain recent decisions by the United States Supreme Court, our jurisprudence was well established to the effect that parents of illegitimate children were without legal right to recover damages for the death of such offspring. Lynch v. Knoop, 118 La. 611, 43 So. 252; Cheeks v. Fidelity & Casualty Co. of New York, La.App., 87 So.2d 377; Scott v. La Fontaine, La.App., 148 So.2d 780. The cited cases held in substance that LaC.C. Article 2315, which allows recovery for wrongful death, applies only to legitimate relations.

However, the foregoing Louisiana rule was nullified by Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436, which held in effect that denial of an illegitimate child's right to sue for damages for the death of the child's biological mother, amounts to denial of equal rights guaranteed by the Federal Constitution.

Glona v. American Guarantee & Liability Insurance Company, 391 U.S . 73, 88 S.Ct. 1515, 20 L.Ed.2d 441, rendered on the same day as Levy, above, held that the mother of an illegitimate child is entitled to sue for damages for the death of such an offspring.

Subsequent to Glona, above, Weber v. Aetna Casualty & Surety Company, 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768, held that dependent unacknowledged illegitimate children have a right to workmen's compensation benefits, pursuant to Louisiana law, for the death of their biological father.

Except as hereinafter required to answer Appellees' argument that the position of the biological father of an illegitimate child is different from that of the biological mother, we deem it unnecessary to discuss the moral and legal concepts which constitute the rationale of Levy and Glona, above. It suffices to state that these authorities found constitutional bases for the proposition that an illegitimate child may recover for the death of his biological mother and that a biological mother may recover damages for the death of her illegitimate child.

Our own Supreme Court has recognized the binding effect of Levy, Glona and Weber, above. In Warren v. Richard, La., 296 So.2d 813, it was held that an illegitimate child may recover for the death of his biological father, notwithstanding the child is deemed by state law to be the legitimate child of another man.

In rejecting Appellant's demands under the assignment granted in this instance, the lower court relied upon Honeycutt v. City of Monroe, La.App., 253 So.2d 597, which was an action by a father and mother for damages for the death of their twelve year old illegitimate child who drowned in a municipal swimming pool. The action of the father was dismissed upon an exception of no right of action based on a lack of proof of paternity. In this instance, the father relied upon Glona, above, as authority for the rule that a father may sue for the wrongful death of his illegitimate child. In answering this contention, the Honeycutt decision states:

'. . . It is urged on behalf of Page that the holding in Glona v. American Guarantee & Liability Insurance Company, 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441 (1968), applies equally to the natural father as to the natural mother of an illegitimate.

Glona stands for the proposition that where plaintiff is 'plainly' the mother of an illegitimate child, the fact of its illegitimacy is no bar to her recovery for the wrongful death of her child. Even if we should agree with plaintiff Page's argument, Which we do not, the evidence in the instant case fails to convince us that Oliver Page is 'plainly' the father of Stanley.

It is also argued that if the child was indeed the child...