Waters v. Harrell
| Decision Date | 05 March 1945 |
| Docket Number | Record No. 2881. |
| Citation | 183 Va. 764 |
| Court | Virginia Supreme Court |
| Parties | TILLIE BIGGERSTAFF WATERS v. L. C. HARRELL, JR., ADMINISTRATOR, ETC. |
2. DEATH BY WRONGFUL ACT — Distribution of Recovery — Code Section 5788 — Effect of "Widowed Mother's" Remarriage. — Section 5788 of the Code of 1942 deals with a "widowed mother's" right to an apportionment of the amount of recovery in an action for wrongful death without regard to her son's bounty, and her remarriage has nothing to do with the rights of persons whom the statute undertakes to benefit, in the absence of an express provision of law affecting such rights.
3. HUSBAND AND WIFE — Widow — Effect of Remarriage Generally. — The courts have generally, in construing the word "widow," held that remarriage does not destroy the status of a woman as a widow, either in the general sense of mankind or in a legal sense, in the construction of statutes relating to actions for wrongful death, descent and distribution, dower, taxation, and other statutes affecting like persons and subject matter. "Widow" as used in such statutes refers to the person and not to the state or condition of the woman, whether she remains a widow or marries again.
4. DEATH BY WRONGFUL ACT — Distribution of Recovery — Code Section 5788 — Between Widow and Widowed Mother Who Remarried — Case at Bar. — In the instant case, an action for wrongful death, the jury by its verdict apportioned the recovery equally between the widow of the decedent and his "widowed mother". Decedent's mother, after the death of decedent's father, remarried, and the trial court held that by virtue of her remarriage she was not the widowed mother of decedent, as contemplated by section 5788 of the Code of 1942, providing for an aportionment of the recovery, in an action for wrongful death, between the widow and the widowed mother of the decedent, and set aside so much of jury's verdict as awarded one-half of the recovery to decedent's mother.
Held: Error. The right of the decedent's mother to share in the recovery was fixed by the birth of her son and the death of her husband prior to her son's death which events identified her as standing in the relationship of the "widowed mother".
Error to a judgment of the Circuit Court of Greensville county. Hon. J. J. Temple, judge presiding.
The opinion states the case.
Hodges & Dortch, for the plaintiff in error.
William Old, for the defendant in error.
Ranson S. Biggerstaff, appellant's son, a member of the armed services of the United States, was instantly killed on December 27, 1942, when an automobile, in which he was a passenger, was struck by a train operated by the Atlantic Coast Line Railway Company. L. C. Harrell, Jr., qualified as administrator of his estate, and instituted this action against the railway company, for the death of his interstate by wrongful act. Virginia Code, 1942, (Michie), sections 5786, 5787, and 5788.
On March 31, 1944, a jury returned a verdict against the railway company in the sum of $5,000, and by its verdict apportioned the recovery as follows:
"We, the jury, apportion the damages of $5,000.00 equally between the widow of the decedent and his widowed mother."
Lenore Biggerstaff, the widow of the decedent, thereupon moved the court to set aside so much of the verdict as apportioned one-half of the recovery to the widowed mother of the decedent, and to order the payment of the entire amount to her as his widow. This motion was taken under advisement, and the case continued.
On April 18, 1944, the appellant, Tillie Biggerstaff Waters, the mother of the decedent, tendered her position to the court, praying that she be admitted as a party defendant to the cause, and that the court overrule the motion of Lenore Biggerstaff and approve and confirm the verdict of the jury. Her petition alleged the following facts:
That Tillie Biggerstaff Waters was, an September 26, 1900, married to Joseph Biggerstaff, of which marriage union Ranson S. Biggerstaff, the decedent, was born November 4, 1908; that Joseph Biggerstaff, her husband, died October 8, 1914, and she thereafter, on July 4, 1923, married John R. Waters; that she was granted an absolute divorce from John R. Waters at the September term, 1940, of the Superior Court of Mecklenburg County, North Carolina, a court of competent jurisdiction; that the decedent was married to Lenore Biggerstaff at the date of his death on December 27, 1942; and that no children were born of the marriage of the decedent to Lenore Biggerstaff.
The court granted the motion of Tillie Biggerstaff Waters to file her petition, and thereupon heard her evidence ore tenus in support of the allegations therein. The cause was then continued to May 4, 1944, on which date the court being of opinion that Tillie Biggerstaff Waters "by virtue of her remarriage to John Waters prior to the death of the decedent, was not the widowed mother of the said decedent, as contemplated by the death by wrongful act statute," set aside so much of the jury's verdict as awarded one-half of the recovery to decedent's mother, and awarded the entire amount of the recovery, $5,000, to decedent's widow. Appellant duly objected and excepted.
The facts stated in the petition of Tillie Biggerstaff Waters are undisputed. The sole issue involved is whether Tillie Biggerstaff Waters was, within the purview of Virginia Code, 1942, (Michie), section 5788, the "widowed mother" of Ranson S. Biggerstaff, decedent, at the time of his death on December 27, 1942.
The appellant contends, first, that once she became the "widowed mother" of the decedent, she remained forever his "widowed mother," regardless of her status thereafter, and, second, that her absolute divorce from John R. Waters two years prior to the decedent's death changed her status from that of a married person to the status she occupied before her marriage to Waters.
On behalf of the appellee, it is contended that a widow is a woman who has lost her husband by death and has not married again.
The facts present a case of first impression in Virginia. Its solution depends upon a construction of Virginia Code, 1942, (Michie), section 5788, the pertinent portion of which reads as follows:
...
To continue reading
Request your trial