Patton v. Shamburger, 4140

• Decision Date: 03 March 1967
• Docket Number: No. 4140,4140
• Citation: 413 S.W.2d 155
• Parties: J. C. PATTON et ux., Appellants, v. Alice M. SHAMBURGER, Guardian, Appellee. . Eastland
• Court: Texas Court of Appeals

Page 155

413 S.W.2d 155

J. C. PATTON et ux., Appellants, v. Alice M. SHAMBURGER, Guardian, Appellee.

No. 4140.

Court of Civil Appeals of Texas Eastland.

March 3, 1967.

Rehearing Denied March 24, 1967.

Huff & Bowers, Bob Huff, Lubbock, for appellants.

Scarborough, Black, Tarpley & Scarborough, Frank Scarborough, Abilene, for appellee.

GRISSOM, Chief Justice.

Jack E. Patton was killed in the course of his employment. His employer's insurer paid into court the correct amount of death benefits under the Workmen's Compensation Law and asked it to determine who was entitled thereto. Such benefits were claimed adversely by the surviving father and mother of the deceased and by his two minor children, acting through their mother, Mrs. Alice M. Shamburger, as their guardian. The children's mother's second husband had adopted Jack E. Patton's children. It was further stipulated that Jack E. Patton and the present Mrs. Shamburger were divorced in 1956; that Jack E. Patton was killed in 1965; that Larry Estel and James Allen Patton, the minor children of Jack E. Patton, deceased, and Mrs. Alice M. Shamburger, were adopted by Charles D. Shamburger in 1963; that Mrs. Shamburger was their legally qualified guardian; that Jack E. Patton and Mrs. Alice M. Shamburger had no other children; that Jack E. Patton left no surviving widow; that J.C. and Fern Patton, the father and mother of the deceased, were dependent upon him and that Jack E. Patton had not contributed to the support of his children since their adoption by Shamburger.

In a trial to the court, it was held that the surviving children were entitled to the money so paid into court to the exclusion of deceased's surviving dependent parents, regardless of the fact that said children had been adopted before their natural father's death. The only issue presented is whether the adoption of said children by Mr. Shamburger before the death of their natural father deprived the children of their right otherwise to the Workmen's Compensation benefits due upon the death of their natural father. Minor children are entitled to such compensation to the exclusion of surviving parents, regardless of the parents' dependency. Article 8306, Sec. 8a. It is clear that said children were entitled to recover said benefits unless they were deprived thereof by the fact that they were so adopted. All parties agree that this is a case of first impression and that there is no case directly in point in Texas. Appellee cites authorities from other jurisdictions having similar statutes. Dependency of the parents is not controlling.

In Stark v. Watson, Okl., 359 P.2d 191, there was a contest over such a fund between two natural children of a deceased workman, one of whom had been adopted prior to their father's death. The Supreme Court of Oklahoma held that an adopted child inherited from his natural parents. Such is the law in Texas. Adoption, Vernon's Ann.Civ.St. Article 46a, Sec. 9, page 151; V.A.T.S. Probate Code, § 40. That court said:

'Under the law of adoption, the natural parent and the adopting parent each must consent to the new relationship before the child can be legally adopted. By consent each is bound. The adopted child, the person principally affected by the transaction, has no choice and gives no consent. His natural parent, by his consent to his adoption loses his right to inherit from...