Pinkney v. Pinkney
| Decision Date | 20 April 1967 |
| Docket Number | No. I--74,I--74 |
| Citation | 198 So.2d 52 |
| Parties | Frederica Yvette PINKNEY, a minor, by Thelma W. McGowan, her guardian of estate and next friend, Appellant, v. Frederick PINKNEY, Appellee. |
| Court | Florida District Court of Appeals |
E. K. McIlrath, Jacksonville, for appellant.
Mahon & Mahon, Jacksonville, for appellee.
This is an appeal a final judgment for the defendant pursuant to a motion for directed verdict in a wrongful death case and from an order dismissing a second count in the complaint sounding in a separate alleged tort.
The appellant by her complaint alleged herself to be the minor daughter of the appellee-defendant; that she was born out of wedlock from a union between her now deceased mother, Cleo King, and the defendant, Frederick Pinkney; that the defendant and plaintiff's mother lived together without benefit of wedlock; that she was born of such relationship; that the defendant wrongfully shot and wounded the appellant's mother, and that the mother died from the gunshot wounds wrongfully inflicted upon her by the appellee.
Out of the above described factual situation, the appellant alleged two grounds for recovery against the appellee. First, the wrongful death count and, secondly, the alleged tort based upon the 'wrong' committed by the defendant for having caused or created the plaintiff to be born as an adulterine bastard and, of course, thereafter having to live under the continuing stigma of bastardy.
The trial judge granted the defendant's motion to strike the second count on the grounds that the jurisprudence of this State does not recognize liability by the father to a bastard by reason of his role as parent over and above that liability imposed by Chapter 742, Florida Statutes, F.S.A., commonly known as the bastardy statute. In dismissing the 'bastardy tort' count, the trial court bottomed its ruling on Clarke v. Blackburn, 151 So.2d 325 (Fla.App.2d 1953). While the Clarke case did not involve a separate alleged tort such as that which the appellant herein wishes this court to recognize, or perhaps more accurately, to create, the Second District Court of Appeal in that case recognized that at common law a putative father was under no legal liability to support his illegitimate child; and that if liability exists, it must be that imposed by statute. The court in Clarke, at page 330, set forth the exclusivity of Chapter 742 as applied to suits of paternity and support for bastard children by pointing out that:
The appellant apparently concedes that Chapter 742, Florida Statutes, F.S.A., may very well provide the exclusive remedy for enforcing child support payments. However, the appellant insists that her claim is not one for 'support.' Rather, the contends that she has been wronged by the illicit conduct and relationship which the appellee carried on with her now deceased mother and demands compensation from the father for having committed those acts with plaintiff's mother which resulted in the alleged wrong upon her.
By way of analogy, appellant likens the gist of the wrong perpetrated upon her to slander by posing the question: If it be actionable to speak of one as being a bastard, how much more so is it to cause one to be a bastard? The latter 'wrong' is certainly more lasting than the calumny of mere words which hopefully may soon be lost from the memory of one's contemporaries. Illegitimacy, however, is indelibly imprinted on the appellant and those in like circumstance. Unlike slander, the sting continues long after others have forgotten. It is painful...
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...(Titone, J., dissenting), a perceived preemption of legislative prerogative in recognizing such new cause of action, Pinkney v. Pinkney, 198 So.2d 52 (Fla.App. 1967) ("dissatisfied life" claim); Becker v. Schwartz, 46 N.Y.2d 401, 386 N.E.2d 807, 413 N.Y.S.2d 895 (1978); Stewart v. Long Isla......
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...by the plaintiffs might better be described as a 'eugenic abortion' intended to prevent the birth of a defective child.4 Pinkney v. Pinkney (Fla.App.1967), 198 So.2d 52; Zepeda v. Zepeda (1963), 41 Ill.App.2d 240, 190 N.E.2d 849; Williams v. State (1966), 18 N.Y.2d 481, 276 N.Y.S.2d 885, 22......
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Brown v. Bray
...proceedings, but that Section 742.011 provides for exclusive relief to the mother in Bastardy proceedings, citing Pinkney v. Pinkney (Fla.App.1967), 198 So.2d 52. Pinkney was an action for damages against the father by his illegitimate daughter for the wrongful death of the mother and for h......