Robert Joe COBB et al., Plaintiffs-Respondents, v. STATE SECURITY INSURANCE COMPANY, Defendant-Appellant.
No. 60626.
Supreme Court of Missouri, En Banc.
Feb. 13, 1979.
576 S.W.2d 726
Then Lt. Wagner, in language which reads like an information or indictment, proceeds separately to charge petitioner with assault and battery with intent to kill upon one Earnest M. Herndon at a particular time and place, and with robbery while armed with a deadly weapon of Earnest M. Herndon at a particular time and place.1 There is nothing in the affidavits to indicate they were based on personal knowledge or observation. There is nothing in the affidavits to answer the question: “What makes you think that petitioner committed the offense charged?”
Therefore, the arrest warrants are fatally defective in that they were issued on the basis of conclusions, not facts, sworn to by the affiant before the magistrate, contrary to the requirements of the law, both in South Carolina and elsewhere. See Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); Jaben v. United States, 381 U.S. 214, 85 S.Ct. 1365, 14 L.Ed.2d 345 (1965); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958); State v. York, 250 S.C. 30, 156 S.E.2d 326 (1967); State v. Hill, 245 S.C. 76, 138 S.E.2d 829 (1964). The magistrate apparently had confidence in Lt. Wagner and believed nothing more than the latter‘s conclusions were needed on which to issue the arrest warrants. This, however, leaves it to the police officer to decide what is probable cause, which is not, and should not be, the law.
Edward K. Fehlig, Ziercher, Hocker, Tzinberg, Human & Michenfelder, Clayton, for defendant-appellant.
Warren W. Davis, Davis & Davis, Clayton, for plaintiffs-respondents.
I.
Plaintiffs-respondents, Robert Joe Cobb and Norma Jean House, as parents of an illegitimate child, Rhonda Lynn House, obtained a judgment in the sum of $7,500.00 against defendant-appellant, State Security Insurance Company in the Circuit Court of the City of St. Louis for the wrongful death of Rhonda Lynn under the uninsured motorist clause of an insurance contract. The insurance company appealed to the St. Louis District and the judgment was affirmed. We granted the Insurance Company‘s application to transfer and now decide the case as an original appeal.
For reasons hereinafter stated we affirm the judgment and hold under the circumstances here (1) the father and mother of an illegitimate child, may maintain an action under the insurance contract for the wrongful death of their child, (2) that the child is a “relative” of the named insured, Robert Joe Cobb and (3) the child is a member of the insured‘s “household“. We adopt portions of the opinion of the Court of Appeals, McMillian, J., without quotation marks.
II.
This case involves the story of a young child who was hit by an uninsured motorist and her parents both formerly divorced and who admittedly were never married to each other.
Although it is extremely difficult logically and chronologically to follow the evidence relating to the various divorces, places of residence of the parties, the places of employment, the number of children born in and out of wedlock, as well as other facets of this intriguing case, the jury could reasonably find the following.
Robert Joe Cobb, the acknowledged biological father of Rhonda Lynn House was married to one Ellen Burgess on March 16, 1960. The marriage lasted a very short time—“Not even two weeks.” On July 2, 1960, he married Wilda Inez Hunter also known as Chris. That marriage, too, ended in divorce in January, 1963.
In July, 1963, Robert met Norma Jean House who had been married to a Mr. Williams. Norma had five children as a result of her marriage to Mr. Williams one of whom was Donna, a witness in this proceeding. When she met Robert, she was divorced from Mr. Williams. Norma also had a child, born in January, 1964, by a man to whom she was not married and who was neither Robert nor her husband. She was pregnant when she met Robert.
When she met Robert in July, 1963, Norma was living on Gravois in the City of St. Louis and Robert was living with his mother Eugenia [Euceba?] Prather, on Victor Avenue. Robert and Norma were introduced by Norma‘s sister, Ruth Karn. Sometime later, perhaps in 1966, Robert moved to 2307 South Thirteenth Street, where after a series of residential moves, Norma also moved to Thirteenth Street and was a neighbor of Robert‘s. Her apartment was next to his. By that time, Robert and
In June, 1970, Robert remarried Wilda Inez (Chris) Hunter1, and bought a home in the 3600 block of Oregon. They lived together for about three months until approximately September, with their son of the previous marriage.
Then in about October, 1970, Robert went to live with Norma on Russell Avenue “permanently“. After Robert moved from Oregon to Russell, he testified that he did not keep “any other place [he] might call a residence.” From October, 1970, except for about three or four weeks prior to April, 1972, when Robert went to Patricia Thornberg‘s (his younger sister), at 311 Eichelberger, he lived with Norma and was still living with her at another address at the time of trial held in March, 1976.
In April, 1972, Robert obtained a “Family Combination Automobile Policy” effective April 27, 1972 to April 27, 1973. At the time of taking out the policy, Robert gave as a mailing address 7618 Tennessee and as a residential address 311 Eichelberger—apparently the address of his sister, Patricia.
Under Part IV of the policy—“Family Protection Coverage“, the insurance company agreed:
“To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury . . . including death resulting therefrom . . . sustained by the insured caused by accident and arising out of ownership, . . . or use of such uninsured automobile, . . .”
Under the “Definitions” in Part IV, “insured” means:
“(a) the named insured and any relative; . . .” and “Relative” is defined in Part I to mean:
“a relative of the named insured who is a resident of the same household.”
The policy was in force on January 6, 1973. On that fateful day, Rhonda Lynn who was now three and one-half years old was hit by an automobile driven by one Virgil Earls, the uninsured motorist between 39th Street and Lawrence in St. Louis.2 An eyewitness, Jack Regh, saw the accident. He saw the vehicle strike the child. Earls was traveling about twenty-five miles per hour; he did not slow down, or sound any warning or swerve. Mr. Regh flagged Earls down. Robert Joe Cobb came out of “his house and put a blanket” over the child. An ambulance was called and Robert went with the child in the ambulance. Mr. Regh saw Robert “maybe several times . . .”
Rhonda was taken to the hospital and died on January 18, 1973.
Within a few days, January 25, 1973, the appellant insurance company received a no-
On April 9, 1974, a petition was filed by Robert Joe Cobb and Norma House for damages against the defendant. An amended petition was later filed in two counts. Count I sought damages from Virgil Earls and Count II sought damages against State Security Insurance Company for $10,000. Because Virgil Earls was never served, he was dismissed from the cause. Trial commenced in March, 1976.
At trial the following additional facts were adduced.
From and after October, 1970, Robert lived with Norma Jean. Several witnesses testified at trial relating to their living together on Russell, and several witnesses testified as to Robert‘s acknowledgement that Rhonda Lynn was his child. Norma‘s sister testified that prior to Rhonda‘s birth when Robert and Norma were living together Robert acknowledged several times that he was the father of the child; that Robert visited Norma and the child in the hospital, and that he was living with Norma when Rhonda was brought home from the hospital. Witnesses indicated that Rhonda referred to Robert as “Daddy“, and that he played with the children, disciplined Rhonda, etc. When Rhonda was hit by the automobile, the witness, Mr. Regh stated that Robert came out of the Russell house and put a blanket over the child and went to the hospital. Some days before the accident Regh saw Robert on the porch on Russell.
Joseph Eveland, a long time friend of Robert, testified that prior to Rhonda‘s birth Robert acknowledged that he was her father. He was present “many times” at the Russell house where Norma, Robert and Rhonda lived.
Robert‘s mother, Mrs. Prather, stated that Robert acknowledged to her that he was the father of Rhonda, “many times” prior to birth. She was present when Robert “[gave] directions” to Rhonda, that Rhonda called Robert “Daddy“.
Norma‘s daughter, Donna, by her former husband testified that she knew Robert since she was eight years old when Robert “started going” with Norma. She recalled that Robert went to the hospital at Rhonda‘s birth, that he lived on Russell, that after he left Chris, Donna helped him move to Russell in 1970; she also stated that Robert acknowledged the paternity of Rhonda, before and after Rhonda‘s birth. According to Donna, Robert played with Rhonda, gave her “love and affection” and “discipline[d]” her.
In their testimony, Robert and Norma corroborated many of the above facts. In open court he acknowledged that he was the father of Rhonda Lynn, he testified he “supported” her, and “contributed” all he could, gave love and affection to her, and that Rhonda called him “Daddy“. After he moved to Russell he had no other “residence“. He acknowledged that his name did not appear on Rhonda‘s birth or death certificates but indicated, as to the birth certificate that the hospital would not permit it. While the funeral bill had been paid (by whom is unknown), the hospital bill at the time of trial had not. As to the hospital bill in the amount of $4,683.45, Robert received the bill and the hospital requested payment from him.
Norma also acknowledged that Robert was the father of Rhonda, as well as the three other children. She admitted living with him and after he came back in October, 1970, except for a few months, he had no other residence. Robert visited her in the hospital and while Robert lived with her, Robert helped in raising the child, displayed love and affection, disciplined the child and helped pay Rhonda‘s bills. Nor-
At the close of the evidence, appellant insurance company moved for a directed verdict which was overruled. Instructions were given, including Instruction 3, plaintiff‘s verdict director and 6, plaintiff‘s damage instruction.
The cause was argued and submitted to the jury and the jury returned a verdict in the sum of $7,500.00. Judgment was entered on the verdict.
III.
On appeal, the insurance company contends that (1) the trial court erred in denying its motion for directed verdict because (a) the father, Robert, has no rights as a parent under the policy or under the wrongful death act, and no right to the services of the child, Rhonda and (b) he has not proved any actual or pecuniary loss, (2) the court erred in denying its motion for directed verdict on the mother‘s claim for damages because she was not an insured under the policy and erred (a) in admitting evidence of damages claimed by her, and (b) in giving Instructions 3 and 6, authorizing the jury to find in favor of both the father, Robert and the mother, Norma, and (3) the court erred in denying its motion to reduce judgment because there was no substantial evidence of any “loss of services” and the judgment, therefore, should have been limited to the actual expenses of the hospital and funeral bills which were less than the verdict.
Additionally, in its brief filed in this court, appellant contends that Rhonda was not a “relative” of the named insured, Robert, because Robert is the father of an illegitimate child and also because Rhonda was not a resident of the same “household“, as those terms are used in the policy.
IV.
This is an action on the insurance contract. The wrongful death action is relevant as to whether there is a right of action under the contract.
On this appeal several issues must be resolved: (1) is the biological father of an illegitimate child, as an insured under an uninsured motorist clause legally entitled to recover4 damages for an action of wrongful death of his child; (2) does the mother5 of an illegitimate child although not an insured under the contract of insurance, have a right with the father to maintain an action under the uninsured motorist clause for the wrongful death of the child as a legal representative; (3) under the facts of this case is the child Rhonda an insured and a “relative” of the insured Robert Joe Cobb within the meaning of the policy and; (4) is the child, Rhonda, under this record, a member of the insured‘s, Robert Joe Cobb,
V.
Since this is an action under an uninsured motorist clause of the insurance policy, the action may be brought directly against the company—an unsatisfied judgment against the uninsured motorist, Virgil Earls, is not a condition precedent to recovery from the insurer. Hill v. Seaboard Fire & Marine Insurance Co., 374 S.W.2d 606, 611 (Mo.App.1963). The fact that Virgil Earls was dismissed from the action did not jeopardize the cause of action against the insurance company. Reese v. Preferred Risk Mutual Insurance Company, 457 S.W.2d 205, 208 (Mo.App.1970). The action is one of contract. Crenshaw v. Great Central Ins. Co., 527 S.W.2d 1, 4 (Mo.App.1975). In order to prevail on this contract action the plaintiffs must establish that at the time this litigation was commenced they were legally entitled to recover damages from the uninsured motorist. In other words, as an essential element of the cause of action in contract it must be demonstrated that the plaintiffs have a right to recover for the wrongful death of their daughter. Crenshaw, 527 S.W.2d at 4. Merely establishing “fault” on the part of the uninsured motorist is not sufficient. Hunt v. State Farm Mut. Auto. Ins. Co., 560 S.W.2d 280, 282 (Mo.App.1978).
The initial question then becomes whether the named insured, Robert Cobb, has a right to recover for the wrongful death of Rhonda.
The whole complex question of the rights of illegitimate children and the rights and duties of parents of children born out of wedlock has had a long and evolving history. It has not as yet been completed. The law relating to such rights and responsibilities have developed slowly and by degrees.
The common law was harsh, simple and inflexible. An illegitimate child was “nullius filius” or “filius populi“. 1 Bl. Comm. 458-459 (Lewis‘s ed.); 2 Kent Comm. 212 (14th ed.). The child was the child of no one.
The next stage of the development of the law mainly in the last century emphasized the rights and duties between mother and child. The rigors of the common law were ameliorated by statutes and decisions. It was established that the mother is the natural guardian of such child,
As early as 1894 in this state, this court held in Marshall v. Wabash R. Co., 120 Mo. 275, 25 S.W. 179 (1894) that the mother of an illegitimate child could maintain an action for the wrongful death of her illegitimate child.
At this stage of development, the biological father had no responsibilities and was not accorded any particular rights. In State v. White, 363 Mo. 83, 248 S.W.2d 841, 843 (1952) this court, for example, held that, under a statute then in force, the father could not be held criminally responsible for the support of his child, absent legal custody. The duty of support fell upon the mother because of her right to custody.7
“The status of illegitimacy has expressed through the ages society‘s condemnation of irresponsible liaisons beyond the bonds of marriage. But visiting this condemnation on the head of an infant is illogical and unjust. Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffectual—as well as an unjust—way of deterring the parent. . . .”
In recent years the Supreme Court of the United States and this Court have recognized the rights of a child born out of wedlock. In Levy v. Louisiana8, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968) it was held that such a child may not be discriminated against and may recover damages for the wrongful death of the mother. In Glona v. American Guarantee & Liability Ins. Co., 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441 (1968) it was held that the mother may recover for the wrongful death of her illegitimate child. In Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977), an Illinois law which permitted illegitimate children to inherit only from their mother and not the father was struck down as violative of equal protection. Weber, supra, granted to illegitimates the right to recover workmen‘s compensation benefits for the death of their natural father.9 And in Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973), the Supreme Court held that illegitimate children were entitled to support enforceable in a civil proceeding.10
In this state the rights of an illegitimate child have been recognized as against the father. In R— v. R—, 431 S.W.2d 152 (Mo.1968), relying on Levy and Glona it was held that under our statutes the father of an illegitimate is criminally responsible for the support of the child and that the state is prohibited from discriminating between legitimate and illegitimate children. “The principles applied by the United States Supreme Court would render invalid state action which produces discrimination between legitimate and illegitimate children insofar as the right of the child to compel support by his father is concerned. . . .” R— v. R—, 431 S.W.2d at 154. See also Wessels v. Gipfel, 522 S.W.2d 653 (Mo.App.1975).
Hence in recent years the rights of children born out of wedlock have been recognized in many contexts.11
Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) is perhaps the seminal case dealing with certain rights of the biological father. In Stanley, the Supreme Court held that the State of Illinois was barred from taking custody from an unwed father who had lived with the mother intermittently for 18 years without affording due process to the father.
Stanley was distinguished in Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978). There the high court held that the natural father‘s rights under due process were not violated with respect to vetoing an adoption where the father had not exercised actual or legal custody, never shouldered any significant responsibility for the child and the father had not over a long period of time petitioned for legitimation.
Several courts have now recognized certain rights of the biological father. Courts have held that such a father have equal rights of custody13 and such fathers have been awarded custody of such children. Vanderlaan v. Vanderlaan, 9 Ill.App.3d 260, 292 N.E.2d 145 (1972); E v. T, 124 N.J.Super. 535, 308 A.2d 41 (1973); Sparks v. Phelps, 22 Or.App. 570, 540 P.2d 397 (1975); David v. Cindy, 565 S.W.2d 803 (Mo.App.1978).14
In several recent decisions dealing with the rights of the biological father to recover for the wrongful death of a child it has been held that the father may maintain such action. In Holden v. Alexander, 39 A.D.2d 476, 336 N.Y.S.2d 649 (1972), the New York court in a case of first impression, held that the natural father who took the child into his home was to be treated as a distributee under the wrongful death act.
“To hold otherwise would seem not only to create a windfall for tortfeasors who happen to be fortunate enough to have committed their tortious acts against illegitimates . . . , but also to render a gross injustice to this particular plaintiff, who would have suffered a wrong without being provided any remedy.” Holden, 336 N.Y.S.2d at 655.15
In Wilcox v. Jones, 346 So.2d 1037 (Fla.App.1977), the Florida appellate court held that “To recognize the right of the natural mother of an illegitimate child to maintain a wrongful death action but in the same breath to refuse to recognize the corresponding right of the natural father, would violate the equal protection clauses of the state and federal constitutions.” Wilcox, 346 So.2d at 1038. The court relied on Glona and Trimble.
In this fourth stage of development and under these recent decisions, recognizing certain rights of the biological father we are compelled to conclude that when the biological father has openly acknowledged the child as his own, has exercised custody and has shouldered responsibility with respect to supervision, support, protection and care of the child, the biological father has a right to maintain a wrongful death action for the death of his illegitimate child. Cf. Quilloin v. Walcott, 98 S.Ct. at 555.16
Under our wrongful death act and under the modern judicial decisions, we conclude therefore that the father, Robert Joe Cobb, had rights as a parent of Rhonda to commence and maintain an action for wrongful death under the policy. Here, Robert acknowledged Rhonda as his child before and after birth; he lived with Norma and the children at the Russell address over a period of years; he openly acknowledged Rhonda as his child to Norma and to others; Norma recognized Robert as the father; Robert gave support, love and affection to the child and disciplined the child. In these circumstances we cannot say that Robert, and the mother, Norma,17 are to be deprived of a right of action for wrongful death.
We reject therefore the appellant‘s first point that Robert had no rights as a parent.
VI.
Appellant next contends that since Norma was not an insured under the policy, the trial court erred in refusing to sustain its motion for directed verdict.
It is true that the right to recover under an uninsured motorist clause is on the contract and not in tort. It is also true that
In Sterns v. M.F.A. Mutual Insurance Company, 401 S.W.2d 510, 517 (Mo.App.1966) the term “legal representative” was discussed. In a scholarly opinion by Cross, J., after reviewing the purposes of uninsured motorist coverage, the court stated:
“It is our view that this coverage was intended to provide indemnity for damages resulting from an insured‘s wrongful death caused by an uninsured motorist, payable to whatever person or persons may be entitled to bring an action under provisions of V.A.M.S., § 537.080, whether spouse, child or children, parent or parents, or administrator or executor. . . .”
“We uphold that purpose [of uninsured motorist coverage] by declaring that the term ‘legal representative’ used in the policy, as it applies to a person or persons claiming damages for a wrongful death, includes all persons who may have the right to bring an action under V.A.M.S., Sec. 537.080, and that its meaning is not restricted to an administrator or executor. It is our specific ruling here that under . . . the legal effect of Coverage E, the plaintiff parents shall be considered as the ‘legal representative’ of the deceased unmarried child. . . .” Sterns, 401 S.W.2d at 517 and 519. (Emphasis added).
VII.
The right of the mother to recover damages, hinges, of course, on the question of whether Rhonda is an “insured” within the meaning of Part IV of the policy. Under the definition of insured, insured means the named insured, Robert, and any “relative“. “Relative” is defined as a “relative of the named insured who is a resident of the same household“. The appellant relies on several decisions18 to show that Rhonda is not a relative.
In uninsured motorist coverage, the meaning of relatives residing in the household is not absolute and inflexible. Generally, courts favor an interpretation to provide insurance coverage. See Widiss, A Guide to Uninsured Motorist Coverage, § 2.6, pp. 25-26 and 1978 Supp. at 6.
This is a case involving “uninsured motorist coverage” and not a case of a different hue. The term “relative” has been defined as “A kinsman; a person connected with another by blood or affinity.” Black‘s Law Dictionary at 1453 (Revised 4th ed., 1968); See Insurance Co. of North America v. Stevens, 425 F.2d 704 (5th Cir. 1978) (nephew is a “relative“).19 In an uninsured motorist case, a stepdaughter was held to be a relative “within the generally accepted meaning of the word.” Box v. Doe, 221 So.2d 666, 669 (La.App.1969).
Surely, the child here, Rhonda Lynn, is a “relative” within the meaning of that term in the policy. She is a person connected with Robert by blood. Notwithstanding the fact that an illegitimate child may not be a “relative” in other contexts as in the decisions relied upon by the appellant, we believe that so far as uninsured motorist coverage is concerned an illegitimate child is a “relative“, i. e., a person connected with another by blood of the insured, Robert Joe Cobb.20
VIII.
We also hold that the illegitimate child of the named insured, Robert Joe
Most decisions interpreting “household” deal with an exclusionary clause to safeguard the insurer against collusion and the natural partiality of an insured to members of the insured‘s household or family circle. Giokaris v. Kincaid, 331 S.W.2d 633, 640 (Mo.1960).
In Mission Insurance Company v. Ward, 487 S.W.2d 449, 451 (Mo. banc 1972) “household” is defined as “those who dwell under the same roof and compose a family.” “Family is defined as ‘the body of persons who live in one house and under one head including parents, children, servants, and lodgers . . .‘” Mission Insurance Company, 487 S.W.2d at 451.
“Household” is a chameleon like word. The definition depends on the facts of each case.21 It is difficult to deduce any general principles. One theory examines the length of time the parties intended to remain in the home and whether the arrangement is permanent or temporary. Mission Insurance Company, 487 S.W.2d at 451; Giokaris, 331 S.W.2d at 641. The other theory focuses on the functional character of the arrangement or whether the parties function as a family unit under one management. See Automobile Club Inter-Insurance Exch. v. Tonkins, 509 S.W.2d 802, 805 (Mo.App.1974); State Farm Mutual Automobile Ins. Co. v. McBride, 489 S.W.2d 229, 233 (Mo.App.1972).
Although for different purposes the meaning of the word may differ, “household” is a word to describe a close relationship, varying in detail, where people live together as a family in a closely-knit group, usually because of a close relationship by blood, marriage or adoption and who deal with each other informally and not at arms length. National Farmers Union Property & Cas. Co. v. Maca, 26 Wis.2d 339, 132 N.W.2d 517, 521 (1965); Note, 26 Drake L.Rev., supra, at 830.
While the relationship here was not a lawful union, there was substantial evidence that Robert lived, on a permanent basis with Norma and the children, Rhonda called him “Daddy“, the parties lived together as a single unit and were functioning as a family for several years. Robert acknowledged the child as his, he supported her to his ability, he gave her love and affection. In such circumstances, we hold that for the purposes of uninsured motorist coverage, Rhonda Lynn was, under the unique facts of this case, a member of the household of the insured.
IX.
Appellant contends that damages as to actual and pecuniary loss were not proved, that the court erred in admitting evidence of damages claimed by the mother, in giving Instructions 3 and 6 and in denying its motion to reduce judgment to reflect actual loss. We find these points to be without merit.
The recognized principle relating to damages for the wrongful death of a minor child is the value of the child‘s services during minority22 and other expenses incurred by reason of wrongful death. Collins v. Stroh, 426 S.W.2d 681, 686 (Mo.App.1968); Hildreth v. Key, 341 S.W.2d 601, 613-614 (Mo.App.1960); Brewer v. Rowe, 363 Mo. 592, 252 S.W.2d 372, 376 (banc 1952).23
The measure of damages and the amount of the verdict in an action for
The evidence here showed that Rhonda was a healthy, active, normal child. She helped around the house, Robert helped support the child, and Norma received financial assistance from Robert. Over the years the services of the child would have increased. There was substantial evidence relating to Rhonda‘s condition, health, mentality, future development and services performed. In this posture we cannot say that damages were not proved or that Robert did not prove pecuniary loss or that the court erred in admitting evidence of damages claimed by the mother. Compare the evidence in Brewer v. Rowe, supra.
Appellant complains that Instructions 3 and 6 are erroneous because Norma Jean was not an insured under the policy and that Robert is the only party with any contractual rights. But since we have held that Norma Jean is a “legal representative” under the policy she had a right to sue and recover thereon.
The court did not err in giving Instructions 3 and 6.
We rule these contentions against appellant.
X.
Finally, appellant contends that the court erred in not granting its motion to reduce the amount of the judgment from $7,500.00 to the damages actually proved, hospital and funeral expenses—$5,033.45.
In view of the previous discussion, we cannot say that the award of approximately $2,500.00 in the case of this child was an excessive award of damages for the wrongful death of the child and that the trial court abused its discretion. This contention is without merit.
Having disposed of the points and contentions raised by the appellant, the judgment of the trial court is affirmed.
The judgment is affirmed.
MORGAN, C. J., and DONNELLY, J., concur.
BARDGETT and SEILER, JJ., concur in part and dissent in part in separate opinions filed.
FINCH, Senior Judge, dissents in separate dissenting opinion filed.
RENDLEN, J., dissents and concurs in separate dissenting opinion of FINCH, Senior Judge.
WELLIVER, J., not participating because not a member of the Court when cause was submitted.
BARDGETT, Judge, concurring in part and dissenting in part.
I respectfully dissent. The reason this case was transferred after opinion in the Missouri Court of Appeals, St. Louis district, was to review the question of whether the putative father has a cause of action for the wrongful death of his illegitimate child. The principal opinion recognizes this to be the core issue in the case and, after citing a number of cases, states that we are compelled to conclude that when a biological father openly acknowledges paternity, exercises custody and responsibility with respect to supervision, support, protection and care for the child,1 he has a right to maintain a wrongful death action for the death of his
If our Wrongful Death Act,
But this case does not involve the rights of children, legitimate or illegitimate, but purely whether the putative father has a right of action, nor does Higgins v. Gosney, supra, decide any issues with reference to legitimate or illegitimate children, nor with reference to putative fathers. The principal opinion seems to infer that the legislature intended to make no distinction between legal fathers and putative fathers reference wrongful death actions for the death of their children.
The language of our wrongful death statutes has not changed very much over the years. In Marshall v. Wabash R. Co., 120 Mo. 275, 25 S.W. 179 (1894), the court had to decide whether the mother of a deceased child was required to join the putative father as a party to a wrongful death action for the death of their child. Sec. 4425, RSMo 1855 (chapter 51, sec. 2), provided in part, “. . . or, third, if such deceased be a minor and unmarried, then by the father and mother, who may join in such suit, and each shall have an equal interest in the judgment, or if either of them be dead, then by the survivor.” This statute was amended in 1885 under the title, “An act to amend sections . . . , extending the rights of adoptive children and their parents by adoption,” so as to describe the persons who may sue, and provided in part, “. . . or third, if such deceased be a minor and unmarried, whether such deceased be a natural born or adopted child, . . . then by the father or mother who may join in the suit, and each shall have an equal interest in the judgment, or if either of them be dead, then by the survivor.”
The court construed the words “natural born child” in the 1885 amendment to mean the same as the word “child” meant in the 1855 statute and stated that the amendment was intended to extend the rights of adoptive children and their adoptive parents. It was not for the purpose of vesting illegitimate children or a putative father with rights they did not have under the former law. The court reviewed the status of illegitimate children under the common law and earlier cases and then held as follows, 25 S.W. at 181:
“The harsh rules of the common law have been modified by express statute in this state, so that the mother is declared the natural guardian of her illegitimate child. Section 5279, Rev.St. 1889. And section 4473 declares: ‘Bastards shall be capable of inheriting and transmitting inheritance on the part of the mother, and such mother may inherit from her bastard child or children in like manner as if they had been lawfully begotten of her.’ This section does not, it is true, legitimate a bastard, but it concedes to him inheritable blood on the mother‘s side. Instead of being the son of nobody, as at common law, he has a mother who is recognized as such by our laws. The duty of supporting him rests upon her, and she is entitled to his services during minority. As the chief and principal incapacity of a bastard has been removed, so far as he and his mother are concerned, there seems to be no good reason why a statute which speaks of parents and children should not
apply to a mother and her illegitimate child, unless there is something in the statute, or the subject about which it treats, to show that it was not intended to apply to persons standing in that relation. To say the mother of an illegitimate child cannot maintain a suit under the second section of the damage act is to say she cannot maintain one under the third and fourth sections, which do not fix the damages at a stated amount, but allow compensatory damages, not exceeding $5,000; and it is to say an illegitimate child cannot recover, under either section, for the loss of its mother. We cannot believe the legislature ever intended such results. As the mother of an illegitimate child is, by our law, deemed and treated a mother, we think she is within the meaning of the damage act, and that the father of such child is not. This is but giving effect to what we understand to be the legislative policy of this state. It follows that the plaintiff can maintain this suit, and that the reputed father need not, and ought not to, be made a party. All concur.”
The interpretation Marshall places on our wrongful death statute regarding a putative father‘s right to sue for the death of his illegitimate child has been recognized as the currently prevailing interpretation of the present wrongful death act by several law committees of the Missouri Bar which reviewed wrongful death acts and wrote a proposed act for Missouri. See “Wrongful Death“, Washington University Law Quarterly 1973, pp. 327-378. The committee proposed, inter alia, to abolish illegitimacy “as a bar to recovery by a child for a parent‘s death and vice versa“. Id. 368. The committee proposed extensive amendments to the Missouri wrongful death act which were introduced as H.B. 1466 in the 76th General Assembly but the bill did not go beyond the first or second reading stage. I do not cite the introduction of H.B. 1466 and its failure of passage as any indication of current legislative intent, for it is obvious that many bills fail of passage for reasons that have nothing to do with the merits of the proposal. Sometimes bills are not passed simply because time runs out. I cite the Washington Law Quarterly article and H.B. 1466 as support for the proposition that the current thought as to the meaning of the Missouri wrongful death act regarding a putative father‘s right to sue among lawyers and law professors is the same as expressed by this court in Marshall, and the principal opinion does not expressly modify or overrule Marshall.
I will not undertake a detailed re-analysis of the cases cited in the principal opinion with respect to what the opinion describes as the first three stages of the development of rights of illegitimates and putative fathers. Suffice it to note that those cases deal primarily and almost exclusively with the rights of the illegitimate child, not the putative father. That is understandable because it was the child, not his putative father, who, under the common law suffered because of the single status of his parents. The putative father had no rights with respect to the child, but what was of more importance to most of them was that they had no obligations to either the child or the mother. Today, although support can be ordered by a court of a putative father, the fact is that the mother still, in almost every instance, bears the actual responsibility for the support and care of the child. The facts of this case show a man who, while married to another woman and with children by her, abandons his legal family and resides sporadically with Norma Jean and sires her children but leaves when he pleases. He has not entered into any legal relationship which involves reciprocal legal duties, as in the case of marriage, which, in turn, provides the basic recognizable unit, the family, which is considered to be in our society the best and acceptable environment for the rearing of children. I have found no legal authority to the effect that a putative father is entitled to the services and earnings of his illegitimate
Our wrongful death law is essentially a compensatory rather than a punitive act.
With respect to the constitutional issue, it should be stated at the outset that no decision of the United States Supreme Court requires a state to afford the right to sue for the “wrongful death” of a child to a putative father just because it affords that right to the mother. The most recent case dealing with rights of illegitimate children vis a vis their putative father is Lalli v. Lalli, — U.S. —, 99 S.Ct. 518, 58 L.Ed.2d 503 [1978]. The court there held the equal protection clause of the U. S. Constitution, Amendment 14, does not require that legitimate and illegitimate children be afforded equal rights as to inheriting from their fathers. The New York statute considered in Lalli required that an illegitimate child could inherit from his father only, “. . . if a court of competent jurisdiction has, during the lifetime of the father, made an order of filiation declaring paternity in a proceeding instituted during the pregnancy of the mother or within two years from the birth of the child.” The court proceeded on the basis that the appellant-claimant, Robert M. Lalli was the son of the deceased Mario Lalli. There had been no order of filiation obtained as required by the statute and Robert Lalli contended the equal protection clause of Amendment 14 rendered the statute, supra, unconstitutional. The Supreme Court held that the statutory requirement of a filiation order served an important state interest, to wit, a “just and orderly disposition of property at death“, [at — , 99 S.Ct. at 523], and therefore did not violate the equal protection clause.
In my opinion, there are important state interests which a state legislature is entitled to recognize and serve by granting the right to sue for the wrongful death of an illegitimate child to the mother and not to the father. It is important that someone be legally responsible for the care of children born out of wedlock from birth onward. Our statute,
Just as the state‘s interest in the just and orderly disposition of property at death was recognized in Lalli, so, too, should the state‘s interest of wrongful death actions be recognized. This also is a pecuniary item as the only purpose in filing the suit is to obtain money damages. The state has, in my opinion, a substantial interest in providing that the one who has the legal obligation to care for the illegitimate child and who is entitled to the child‘s services be the one who is to be compensated for the loss. That is what, in effect, our wrongful death statute provides and, as such, I believe that it does not violate the state or federal constitutions in failing to allow the putative father to sue. See Hughes v. Parham, 241 Ga. 198, 243 S.E.2d 867 (1978)2 where a statute similar to ours was upheld as against similar contentions.
Once again it should be noted that the issue here cannot be resolved on the basis of the “best interests of the child.” The child is dead. In Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978), cited in the principal opinion, the putative father‘s rights with respect to vetoing the adoption of his illegitimate child were adjudicated on the basis of the “best interest of the child” standard. Denying the putative father‘s rights equal to a legal father‘s did not offend constitutional due process or equal protection in Quilloin.
In my opinion, our wrongful death statute does not grant the right to sue to a putative father and that statute is not unconstitutional as depriving a putative father of equal protection.
I would hold that plaintiff Robert Joe Cobb does not have a cause of action for the wrongful death of Rhonda House. This would require the judgment in favor of Robert Joe Cobb to be reversed and the cause remanded for a new trial and permit the new trial to be on damages only with the sole party plaintiff being Norma Jean House if Norma Jean House is entitled to maintain this type of action as against State Security Insurance Company under the uninsured motorist coverage of the policy.
I agree with the holding of the principal opinion that the deceased child was a relative of the named insured and “a member of the same household” as the named insured. Under the definition in the policy, Rhonda was an “insured“. Norma Jean was her mother and natural guardian and had the right, as her mother, to sue for the child‘s wrongful death. Sterns v. M.F.A. Mutual Ins. Co., 401 S.W.2d 510, 517 (Mo.App.1977), cited in the principal opinion, holds that the term “legal representative“, as used in uninsured motorist policy provisions, means any person who is entitled to sue for the death of another under
I would reverse the judgment in favor of Robert Joe Cobb outright and reverse the judgment in favor of Norma Jean House and remand the case for retrial as to damages only with the sole plaintiff being Norma Jean House.
SEILER, Judge, concurring in part and dissenting in part.
I concur in that portion of the opinion of Simeone, J., which holds that plaintiff Robert Cobb has the right as a parent of the child Rhonda to maintain an action for her wrongful death under the policy.
I concur in the dissenting opinion of Finch, Sr., J., that Norma Jean House, the mother of the child, is not entitled to recover from defendant insurance company on the policy it issued to Robert Cobb.
FINCH, Senior Judge, dissenting.
I respectfully dissent from the principal opinion. I would reverse.
I agree with and concur in that portion of the dissenting opinion of Bardgett, J., which takes the position that Robert Joe Cobb, the biological father of Rhonda, is not entitled to recover for her wrongful death.
I also dissent from the holding that Norma Jean House, the mother of Rhonda, is entitled to recover from defendant insurance company on the policy it issued to Robert Joe Cobb.
STATE ex rel. George A. PEACH, Circuit Attorney, City of St. Louis, State of Missouri, Relator, v. The Honorable Lackland H. BLOOM, Judge, Circuit Court of City of St. Louis, State of Missouri, Respondent.
No. 61194.
Supreme Court of Missouri, En Banc.
Feb. 16, 1979.
Notes
1. The affidavit as to the assault charge stated as follows:
“That on July 29, 1976, John E. Wilcox and James M. Seger did commit the offense of Assault and Battery with Intent to Kill while in the commission of committing a Robbery while Armed with a deadly weapon upon one Earnest M. Herndon in Hardee‘s Restaurant located on Highway 278, Hilton Head in Beaufort County, in that John E. Wilcox and James M. Seger did physically beat, strike and cause bodily harm to Earnest Herndon, causing him to be hospitalized for 39 days and having to be under constant medical care since the date of Robbery.”
The affidavit as to the robbery charge stated as follows:
“That on July 29, 1976 John E. Wilcox and James M. Seger did commit the offense of Robbery while armed with a deadly weapon. That John E. Wilcox and James M. Seger did rob the Hardee‘s Restaurant located on Highway 278, Hilton Head, S.C. in Beaufort County. That John E. Wilcox and James M. Seger did rob while armed with a deadly weapon one Earnest M. Herndon of approximately ($2000.00) two thousand dollars. That during the commission of the Armed Robbery Earnest M. Herndon was severely beaten.”
1. Norma testified that the marriage “did bother me. It bothers me still yet.” But “It didn‘t change my feelings toward him.”