Schmoll v. Creecy

• Decision Date: 10 January 1969
• Docket Number: No. A--451,A--451
• Citation: 104 N.J.Super. 126,249 A.2d 3
• Parties: Alan R. SCHMOLL, Esquire, general administrator and administrator ad prosequendum of the estate of Cornelius Paynter, Sr., deceased, Plaintiff-Appellant, v. Roshier G. CREECY, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 126

104 N.J.Super. 126

249 A.2d 3

Alan R. SCHMOLL, Esquire, general administrator and administrator ad prosequendum of the estate of Cornelius Paynter, Sr., deceased Plaintiff-Appellant, v. Roshier G. CREECY, Defendant-Respondent.

No. A--451.

Superior Court of New Jersey Appellate Division.

Argued Nov. 12, 1968.

Decided Jan. 10, 1969.

Walter Gollub, Camden, for appellant.

Charles A. Cohen, Camden, for respondent (Kisselman, Devine, Deighan & Montano, Camden, attorneys).

Before Judges GOLDMANN, KOLOVSKY and CARTON.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

The main question on this appeal is whether an action may be maintained under the Death Act, N.J.S. 2A:31--1 et seq., N.J.S.A., on behalf of illegitimate children to recover for the alleged wrongful death of their putative father. We hold that it may not.

The appeal comes before us on an agreed statement of facts in lieu of record, pursuant to R.R. 1:6--2.

On November 5, 1966 decedent Cornelius Paynter, Sr. was a passenger in an automobile owned and operated by defendant Creecy when it went off the road, upset and overturned in a body of water. Paynter drowned.

Decedent had married Doris Jean Davis in Kentucky and had two children by her. In 1956 he separated from his wife and took up residence in Camden, N.J. At the time of his death the wife and two children were and continue to be residents of Kentucky. Decedent was under a court order to pay $15 a week for the support of the children.

In Camden decedent lived with Evereen Randells, allegedly holding themselves out as man and wife. Five children were born to them and were allegedly members of their household at the time of decedent's death.

The legal wife applied for letters of administration Ad prosequendum, as did decedent's mother. After the surrogate had certified the case to be one of doubt and difficulty, the Camden County Court appointed plaintiff general administrator and administrator Ad prosequendum of decedent's estate. Plaintiff then brought an action against defendant under the Death Act on behalf of the Kentucky wife and her two children in the Superior Court, Law Division (Docket L--18757--66). He subsequently also instituted a similar action in the same court on behalf of the five illegitimate children 'for the wrongful deprivation of their support' by reason of decedent's death, as well as for recovery of funeral expenses incurred by Evereen Randells (Docket L--21595--66).

The two actions were ordered consolidated for trial. Defendant then moved to dismiss the complaint filed on behalf of the illegitimate children on the ground that they were not entitled to recover as a matter of law and plaintiff was not entitled to recover funeral expenses. Counsel for decedent's legal wife and children joined in the argument in support of the motion. The trial judge filed a written opinion and entered the order here under appeal, dismissing the complaint.

Sometime after the notice of appeal was filed this court, on application of the attorney for appellant, entered an order relieving him from the necessity of filing his brief until the case of Levy v. Louisiana, then pending in the United States Supreme Court, was decided. The opinion in that case came down on May 20, 1968, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436.

Although decedent's wife and legitimate children (or plaintiff administrator Ad prosequendum as to them) are not named as respondents on this appeal, they were parties to the motion below, have a direct pecuniary interest in our determination, and through counsel join in the brief filed by defendant.

N.J.S. 2A:31--4, N.J.S.A., part of the Death Act, as it read at the time of decedent's death, provided:

'The amount recovered in proceedings under this chapter Shall be for the exclusive benefit of the persons entitled to take any intestate personal property of the decedent, and in the proportions in which they are entitled to take the same. If any of the persons so entitled were dependent on the decedent at his death, they shall take the same as though they were sole persons so entitled, in such proportions, as shall be determined by the court without a jury, and as will result in a fair and equitable apportionment of the amount recovered, among them, taking into account in such determination, but not limited necessarily thereby, the age of the dependents, their physical and mental condition, the necessity or desirability of providing them with educational facilities, their financial condition and the availability to them of other means of support, present and future, and any other relevant factors which will contribute to a fair and equitable apportionment of the amount recovered.' (Italics ours)

Although, as plaintiff notes in his brief, this case does not deal with the succession of property, yet since only persons who are capable of inheriting a decedent's personal property can qualify for any portion of the recovery, the law dealing with such succession must be consulted. N.J.S. 3A:4--2, N.J.S.A. provides that in the case of a decedent dying intestate,

'One-third of the personal property shall be distributed to the intestate's husband or widow, as the case may be, and the residue in equal portions among the intestate's children and such persons as legally represent any child who may have died.'

And N.J.S. 3A:4--7, N.J.S.A., dealing with illegitimate children, provides 'For the purpose of descent and distribution under this chapter (N.J.S. 3A:4--1 et seq., N.J.S.A.) to, through and from an illegitimate child, such child shall be treated the same As if he were the legitimate child of his mother, so that he and his issue shall inherit and take from his mother and from his maternal kindred, including his maternal ancestors, descendants and collaterals; and they, from him, and his issue. When parents of an illegitimate child shall marry subsequent to his birth and recognize and treat him as their child, such child shall be deemed to have been made the legitimate child of both of his parents for the purpose of descent and distribution to, through and from him under this chapter.' (Italics ours)

At common law an illegitimate child could not inherit from either his mother or putative father. Hammond v. Pennsylvania R.R. Co., 31 N.J. 244, 251, 156 A.2d 689 (1959). N.J.S. 3A:4--7, N.J.S.A. changed that rule insofar as permitting the illegitimate child to inherit through and from his mother. No similar provision has been adopted with respect to the father. It therefore follows that since an illegitimate child may not take by intestate succession from his father, he is precluded from maintaining a wrongful death action under N.J.S. 2A:31--4, N.J.S.A. when it is his father, rather than his mother, for whose death the tortfeasor is allegedly responsible. Cf. DiMedio v. Port Norris Express Co., Inc., 71 N.J.Super. 190, 176 A.2d 550 (Law Div.1961); and see Annotation, 'Right of recovery, under wrongful death statute, for benefit of illegitimate child or children of decedent,' 72 A.L.R.2d 1235, 1239 (1960).

Plaintiff contends that to deny illegitimate dependent minor children of the right to sue for the deprivation of their support and maintenance by reason of the alleged wrongful death of their natural father violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution as well as Article I, paragraphs 1 and 5 of the New Jersey Constitution (1947). As to the federal constitutional aspect, they rely on Levy v. Louisiana, above.

In that case appellant sued on behalf of five illegitimate children to recover under the Louisiana statute for the wrongful death of their mother. The statute (La.Civ.Code, Art. 2315) provided that the right to recover damages for the wrongful death of a person shall survive for a period of one year from death in favor of 'the surviving spouse and child or children of the deceased, or either such spouse or such child or children.' The Louisiana District Court dismissed the suit. The Court of Appeal affirmed, holding that 'child' in Article 2315 meant 'legitimate child.' 192 So.2d 193, 195 (1966). The Louisiana Supreme Court denied Certiorari. 250 La. 25, 193 So.2d 530 (1967).

On appeal, the United States Supreme Court reversed, three judges dissenting. The majority held that illegitimate children are not 'nonpersons'; they are human beings and clearly 'persons' within the meaning of the Equal Protection Clause, and while a state has broad power in making classifications, 'it may not draw a line which constitutes an invidious discrimination against a particular class.' The test is 'whether the line drawn is a rational one.' The court then went on to say:

'* * * The rights asserted here involve the intimate, familial relationship between a child and his own mother.

Legitimacy or illegitimacy of birth has no relation to the nature of the wrong allegedly inflicted on the mother by appellees. These children, though illegitimate, were dependent on her; she cared for them and nurtured them; they were indeed hers in the biological and in the spiritual sense; in her death they suffered wrong in the sense that any dependent would.'

The majority of the court accordingly held that it would be invidious to discriminate against such children when no action of theirs was possibly relevant to the harm done their mother.

Justice Harlan's vigorous dissenting opinion pointed out that at common law no person had a legally cognizable interest in the wrongful death of another, and no person could inherit the personal right of another to recover for tortious injuries to his body. Louisiana had by statute created both rights in favor of certain classes of persons. Like most other states, it had chosen to define those classes of proper plaintiffs in terms of their legal rather than their biological relation to the deceased. The rights at issue stemmed from the existence of a family...