S.M v. v. Littlepage

S.M.V., Mother Natural Guardian of Personal Liability II L.D.V., Petitioner-Appellant, that he Tully contends should not liable to the personally McDaniels. be held corporate true

Although it is officer LITTLEPAGE, Repre- E. Personal Ruth may not be held liable shareholder Randy of the Estate of sentative D. corporation merely because he acts Bonham, Respondent-Appellee. shareholder, Birt Mary officer v. St. 1-880A205. No. Gary, (1977), Mercy Hospital Inc. Ind. 379, 382, Tully personally 370 N.E.2d App., Indiana, Appeals in the fraud. He cannot es participated First District. by claiming liability that he acted on cape corporation because an agent behalf 21, 1982. Dec. own for his torts. Dodge is liable Howard 18, 1983. Denied Jan. Rehearing Sons, Finn (1979), Inc. v. Ind.App., & 638. record shows that Tully N.E.2d representations made

personally about the program.

McDaniels AIMS Fur

thermore, knew he what the brochure said changed it have before it was

and could Therefore, the trial court did

printed. Tully finding personally liable for

err

fraud.

III.

Damages

Tully and AIMS contend that by McDaniels were not the

losses suffered consequence of any misrepresen

proximate The evidence made. showed that

tations signed a contract McDaniels with AIMS business in reliance

and started They misrepresentations. paid AIMS up set

$1,500.00 and their office in accord with the AIMS manual. Their ex

ance doing so were the

penditures foreseeable on the misrepresentations of reliance

result AIMS; Tully therefore the

made damages was proper.2

award P.J.,

HOFFMAN, GARRARD, J.,

concur. Tully specific do not attack the 2. and AIMS amount awarded the trial court.

1Q5 Hamilton, Bunner, statute, John & John A. IND.CODE 34- Evansville, Heathcotte, for petitioner-appel- 1-1-2? lant. AND DECISION DISCUSSION Hammel, Yarling, John W. W.

Richard Tunnell, Lamb, Robinson & Indian- Yarling, Littlepage did favor this court curiae. amicus apolis, for Therefore, brief. appellee’s an with upon the may showing by reverse

court NEAL, Judge. prima appellant of facie error in the trial however, judgment; we

court’s are not THE OF CASE to do so. We compelled may our discre STATEMENT questions consider properly tion by appeal petitioner-appellant This is an decide the case and on its presented merits. natural S.M.V., guardian and mother Engineers, Architects and Contech Inc. v. summary L.D.V., judg- an adverse from Courshon, (1979) Ind.App., 387 N.E.2d 464. seeking a petition distributive on her ment benefit of an have the able brief sub We from the proceeds settlement of a share Curiae by Amicus Allstate Insurance mitted brought suit by death Ruth E. insured the Company, which defendant (Littlepage), Represent- Personal Littlepage prosecuted action by death Estate of Randy D. Bonham ative to us Littlepage. appears that the briefs deceased. (Bonham), enable adequately the court file to re on We affirm. presented in the questions appeal. view the OF THE FACTS STATEMENT considerations Constitutional comes to us from the appeal trial cases by Numerous decided Littlepage’s granting motion court’s of the United Supreme Court States in summary judgment. only Therefore problem years address of statuto recent most favorable to facts S.M.V. will be imposed statutorily burdens denied rily Bonham was killed on considered. October illegitimate children, involving rights and 9, 1976, accident, in an automobile statutes, of those rights relation Child) (the was born out of wedlock L.D.V. equal protection to the clause of burdens 5, 1976. S.M.V. and on November Bonham Fourteenth Amendment Consti out of together wedlock for some had lived of the United States. In the tution interest paternity proceeding was initiat- years. A brevity, we have distilled from those against Bonham’s estate on by ed S.M.V. general certain rules which we cases will 11,1979, but was dismissed because October a statute general, may not summarize. brought within Bonham’s it had not child deny given an acknowledgment paternity, No lifetime. generally. The rationale for the otherwise, is shown to exist. written is that a state should not attempt rule Bonham’s wrongful The action actions of men and women by influence surviving on of a brought legitimate behalf imposing sanctions the children of illicit settled, and S.M.V. claims a dis- child relationships. Visiting condemnation of those on behalf share tributive of an innocent who the head child is not Child. of her for his birth is responsible illegal and un way well as ineffectual of deter just, as ISSUE A state ring parents. statutory assigns six errors for our consider- S.M.V. classifications, great respect, deference However, we appeal. perceive ation on is accorded them the courts. and latitude is presented as question one fol- must, However, the classifications at a min lows: imum, and bear a be-rational reasonable illegiti- what circumstances is an statutory objectives Under legiti relation “dependent child” under the mate child in order to satisfy interests state mate A ther requirements. state equal protection only if paternity had been established a classification if the classi- not create competent jurisdiction during a court in an “invidious discrimina- fication results lifetime. The New father’s York courts particular class, and if the against tion” protection equal argument, rejected the unnecessarily illegiti- excludes classification was affirmed by decision children, it constitutionally flawed. mate States, of the United though even acknowledged had However, when paternity is at is writing notary. before a The Court sue, potentially resolution difficult Trimble, distinguished case, an earlier proof and the prevention of problems held which had invalid an Illinois inheri- spurious state inter as a violation equal protec- tance statute respected bewill the courts as ests tion; provided any that statute legal framework re may justly valid. A including way, paternity adjudication, by demanding quire proof a more standard of illegitimate an which child could inherit. illegitimate claiming an child from his discussed power The Court the state’s to than required father of an putative appropriate an legal framework and mother, child illegitimate claiming from his to address procedure the difficult task of legitimate child either claiming or of a from paternity proof danger the related Yet, the state parent. statutory scheme spurious claims. The Court stated that the an not create “insurmountable barrier” statute, by York lifting New the absolute to shield otherwise invidious dis that works inheritance, paternal to bar tended to The state’s interest in these crimination. softening the desired effect of achieve substantial, and reasonable means cases is previous law permitted which ille- rigors insure accurate resolution adopted to to inherit gitimates only from their moth- disputes po and to minimize the then The Court said: ers. disruption for the of estate adminis tential single requirement valid. Hughes, are See Parham v. “The at issue here is tration 347, 1742, evidentiary (1979) 441 U.S. 99 one—that the S.Ct. 60 an 269; Lalli, Lalli v. (1978) judicial be declared in a pro- L.Ed.2d 439 the father U.S. 518, 503; 58 259, sometime before ceeding 99 S.Ct. L.Ed.2d Trimble his death. The Gordon, 762,97 430 (1977) 1459, need have been legitimated U.S. child S.Ct. in 31; Jimenez v. to inherit from his Weinberger, L.Ed.2d order father. Had the 52 628, 2496, appellant 94 in Trimble (1974) governed by 417 U.S. S.Ct. 41 been 363; Perez, 4-1.2, Gomez v. she would have (1973) 409 been a distribu- L.Ed.2d § 872, 535, L.Ed.2d,56; (Footnote 93 S.Ct. 35 her father’s estate.” Web tee of U.S. Casualty Co., omitted.) (1972) Surety er v. Aetna & 164, 1400, 768; 92 S.Ct. 406 U.S. 31 L.Ed.2d Lalli, 267, 439 supra, U.S. at 99 at 524. S.Ct. Louisiana, (1968) 68, Levy v. U.S. Parham, applied supra, the Lalli rationale 1509, 20 L.Ed.2d 436. S.Ct. wrongful death case a to a where father for the attempted to sue death of creation “insurmountable The a child. legally in statutes which render it barriers” illegitimate for an impossible gain child to cases, Harris, Wisconsin Krantz v. Two class equal protection. to a violates 709, entrance 628, (1968) 40 Wis.2d 162 N.W.2d (Workmen’s Weber, supra Compensation); Blumreich, (1978) Estate of re 84 Wis.2d (enforceable Gomez, supra right sup 870, 545, dismissed, appeal 267 N.W.2d Trimble, supra (inheritance from fa port); 99 S.Ct. 59 L.Ed.2d U.S. ther). purposes, analysis our a closer For bearing as important the constitutionali- cases, Lalli, one the most supra, recent statutory ty schemes in death That case involved a New York desirable. respecting illegitimates. Those two cases statute, which bears some simi inheritance nearly cases are identical to the facts in the provided own. that an bar; is, to our larities posthumous illegiti- at case from fa- child could inherit his right partici- claimed the mate children for wrongful 29-l-2-7(a) death of Ind.Code in an an pation illegitimate child in Blum- Appeal fathers. putative the same as if he is “treated were the mother, the United States of his was dismissed child so that he legitimate reich because of the lack of a inherit from his his issue shall mother question. kindred, Federal Wisconsin his maternal both de- substantial and from collaterals, in wrongful scheme death statutory degrees, a scendants and all However, in effect from provided if no inherit him.” they actions survived, to, then the inheritance through were to spouse illegitimate child, an lineal heirs of the from distributed be be treated the same if shall as he were as determined laws of de- child decedent father, child his “... if but 237.06 descent statute scent. Section if, (1) of such child only illegitimate child a lineal heir of made law, during the (1) if been established father’s the father had ac- lifetime; (2) if the father mar- the child knowledged writing, (2) paterni- the child and acknowl- the mother adjudicated under ries Wisconsin’s ty had to be his (Emphasis child own.” lifetime, edges father’s paternity statute added.) 29-l-2-7(b). Ind.Code The stat- open he had admitted court that he that the provides further mother’s testi- question ute the father. in both cases was corroborated. mony must be posthumous whether for the wrongful could recover bar, times relevant the case at At all father where none of of his paternity statute Indiana’s was Ind.Code heirship was of met. The Wis- conditions 1941; (Acts Repealed by 31-4-1-1 Acts Supreme Court held both consin cases 136, 57).1 1978, The P.L. Sec. could not the child recover. The that was to provide proper statute the rejected process court due Blumreich and give that would legal procedures arguments and protection stated that equal rights of wedlock the same born out bring itself within child must the stat- the care, maintenance, education, pro- proper illegitimate the parents The fact that ute. tection, support opportunities and that chil- cohabited, the orally deceased acknowl- wedlock have. 31—4- dren born in Ind.Code edged acquaintances, unborn child the obligated parents the pro- 1-1. The Act insufficient. 31-4-1-2, support, Ind.Code such vide respecting illegitimates scheme Statutory to bring the mother the action. permitted and 31-4-1-9. 31-4-1-3 The ac- Ind.Code questions of the basic first Resolution de- during brought pregnancy. could be tion statutory an examination mands joint A petition was 31-4-1-15. Ind.Code pertaining to rights in Indiana the case law consenting parties. for Ind.Code available illegitimate children in and treatment Agreements support were 31-4-1-8. to their relation fathers. The and enforceable. Ind.Code 31- recognized statute, 34-1-1-2, wrongful death Ind.Code 31-4-1-25. 4-1-6 and the of the wrongful provides shall, here, recovery as relevant “in- of the provided 31-4-1-17 Act Section benefit of the to the exclusive widow or ure that: widower, be, may the case as and to the “If, filing complaint, the of the the after children, if or dependent any, dependent [putative dies, pro- the defendant father] kin, to be distributed in next of the same ceeding may shall abate but be main- personal property as the of the manner against personal representa- his tained (Emphasis added.) Manifest deceased.” respect same as if he were tives is thus made to the laws of

reference intes- provisions living, subject sec. 7 By Ind.Code 29-1-2-5 kin- succession. tate act ... 31-4-1-7] [Ind.Code blood inherit the the half same against dred of be entered judgment No of the whole kindred blood. Under representatives upon share as personal such 1, seq., Ind.Code 31-6-6.1-1 law see et 1. For current effective October 1979. mother alone. blood Blackstone, The evi- could be derived. 1

evidence Com- must be supported of the mother dence mentaries 459. cases have held corroborating evidence or circumstanc- is not a child of es.” purposes for inheritance. the father Truelove, 441, (1909) as 172 Ind. provides 31-4-1-7 follows: Truelove Ind.Code 1018; Fivecoat, (1942) Hall v. N.E. See father, obligation of the where his “The Ind.App. 38 N.E.2d 905. The definitial established during has been code, probate section of the Ind.Code 29-1- by judgment of compe- a court of lifetime 1-3 excludes an child from the or where his jurisdiction, tent of “child.” are the acknowledged by per- him in definition “Heirs” writ- has been performance of his entitled to part sons who are receive real and ing, or against enforceable obligations, property his es- under the personal decedent in such an amount as tate court of intestate succession. “Issue” in- statute Provided, That ... in the en- determine cludes “lawful lineal descendants.” amount forcement ... allotted to n wrongful death as The act of out wedlock shall any ... child born 1889, contained amended in a classification greater event than the never be similar to currently of beneficiaries the one have been that could allotted to amount Ind.Code Two in effect under 34-1-1-2. its distributive share ... child as such have rights Indiana cases defined ” in wedlock.... it been born actions for parents to file two-year statute of The limitations death of their children in terms parental obligations, enforcement illegitimates at common law 4-1-26, (1) is tolled where pa- Ind.Code 31— intestate succession. In ternity has been aby judgment established Cincinnati, McDonald v. Pittsburgh, competent jurisdiction, (2) of a court Chicago R’y Co., (1896) St. Louis acknowledged the child 459, 43 N.E. held Ind. court alleged writing, father in alleged father could not maintain an ac- has been furnishing support either of his acknowledged tion the death ille- voluntarily pursuant agreement. to an though child even gitimate he had reared here, not Though relevant the new 1979 supported the child. and One reason as- act, seq., Ind.Code 31-6-6.1-1 et court for signed holding the its was that provisions, same many of the in- contains not puta- did confer the upon our statutes acknowledgment in cluding writing. The right wrong- the to sue tive father for the limitations, 31-6-6.1-6, of Ind.Code statute illegitimate death of an ful child. “Chil- during extended the minority has been wrongful death statute meant dren” child, a petition and establish pater- the children. legitimate the case of L.T. a period be within filed of five nity Liddil, Company (1911) v. Dickason Coal 49 of the the death months after decedent. Of 411, Ind.App. 40, N.E. an action was significance are certain presump- further brought by personal representative paternity existing where a child tions is illegitimate child the benefit of his an a during marriage or within days born kin, his namely mother, next two half thereof, or par- termination after the sister, half being and brothers marry father and the acknowledges ents marriage aby subsequent to his his mother child, father or the receives the child was question per- whether those birth. The and holds the child his home out to into be kin, whether the ille- sons were next biological child. Ind.Code 31-6-6.1-9. his no next of kin within the gitimate child above abrogat- meaning The statutes summarized death statute. of the common law ed the harsh rules which forthwith noted that The child illegitimate an held that looked could not his although a father inherit from filius, a kin to as nulius nobody, hav- illegitimate child under the inheritance whom from ing statutes, no ancestor inheritable inherit child could acknowledge and her descendants and the child. hasten We to add mother from kindred, they could inherit he opportunity did have an neither that collateral The court stated no that it. declare unconstitutional deny child. To from the between heirs at law and acknowledgment requirement existed distinction that, The court concluded create a of recip- not class kin. next of Act would contemplated by Legisla- never ients our State the “Under open ture, it would wide the door to illegitimate child and her an mother of paternity impossi- posthumous collateral kindred descendants defense.” ble of personal property to inherit entitled child, deceased and are therefore of such at 539. 388 N.E.2d recognize kin. We the rule its next Any statutory scheme that com derogation of the com- a statute that illegitimate children from pletely excluded construed, strictly be must mon law in recoveries for the participating 285, supra [wrongful death regard § we be, fathers of their would statute, do a but we not act], such as above, discussed clear authorities under the construction of a this that strict think as violative of the equal ly unconstitutional the mother prevent of an will section clause of the Fourteenth Amend protection being child from considered is a well established rule if that ment. meaning kin within next of its two interpreta reasonable admits an act act.” it brings within tions, one 49, N.E. 411. at constitution, Id. inter without other followed that will it will be make Co., pretation Superior Construction v. Bemacki the Act. uphold State ex rel. Ind., possible 388 N.E.2d is a recent case Pritchard, (1956) 236 Ind. Brubaker posthumous of a concerning the claim ille- 233; Evansville-Vanderburgh 138 N.E.2d Compensation child Workmen’s gitimate Kamp, (1960) District v. Authority account Levee deceased death benefits is, 168 N.E.2d 208. It there 240 Ind. The acknowledgment re- father. that a construction fore, opinion made; our was not statute there by the quired child to participate permits the alleged an indication was even recovery indicated. wrongful death pregnancy. know The did declaring the court, requirement of after illegit- which an statutory scheme sound, constitutionally acknowledgment participate is contained in imate stated: statutes, succession Ind.Code the intestate that we must determine question “The statutes, 29-l-2-7(a), or not there is a rational rela- is whether seq. et Those statutes 31-4-1-1 Ind.Code state tionship to policy and define the of the statute which classi- portions those children in relation to their acknowledged and unacknowledged fied Each the en- permits fathers. putative differently. In our rights against of the of the child forcement a very is valid and clear there judgment, purpose father’s estate for the the classification. in Chief such purpose support illegiti- to the care providing ‘Requiring observed that Buchanan Judge child, purpose served the the same mate problem decreases the acknowledgment creating act. to death addition wrongful illegitimate children and de- locating higher eviden- statutes right, those a parent- claims of termining questionable recovery for than those requirements tiary enforcing hood....’ legitimate children on imposed requirements is support. state even to These right recognizes respect legislative policy with to children glaring reflect more difficulty proving and at- urged paternity has posthumously. born spurious alleged prevent against un- claims father’s that, tempts to because death, had no Ind.Code 34-1- opportunity he of the deceased. timely the estate 110 part the intestate incorporates majority properly suc- applied

1-2 construed and by requiring Further, cession statute I agree that there those statutes. recovery “to be distribut- impediment which ren- is no constitutional as the personal manner the same ed in ineffectual. The statutes result ders those of the deceased.” The intestate case, property upon the facts of in this reached in turn pa- statute refers to the succession law, case, pertinent and under by requiring either the es- ternity statute correct. paternity during the lifetime tablishment However, some I have concern with the father, marriage of the parents or of the problems reference to the majority’s creat acknowledgment by the father. plus of paternity, the difficul by stale ed therefore, We, are of opinion paternity, danger and the ty proving proper interpreta paternity against the reasonable claims of the es spurious scheme legislative involved here justifi tion of the father as of a deceased tate “dependent term children” as governing is that for the cation death act and, includes used in the to inherit illegitimates consequently, who has the right to main in wrongful death actions participate against for inheritance claim his fa tain a before us. as the one While such such the laws of under intestate ther’s estate expressed have indeed been by our concerns succession, parental to enforce obliga or relevant historically courts paternity against statute under tions hand, issue at of the contin discussion estate. father’s such matters seems anti reliance ued questionable vitality and of in view quated are disclosed in facts the evi No testings, modern scientific state of of the from the proceedings materials dentiary decisions Court of recent summary judgment the motion court, and this and recent States the United (1) paternity would indicate enactments our General As legislative been established during decedent See, example, sembly. Mills v. Habluet lifetime; (2) Bonham and or S.M.V. had 91, 102 71 zel, (1982) U.S. S.Ct. 456 acknowledged he had the pa married (declaring a Texas one-year L.Ed.2d Child; ternity of the Bonham had limitations in actions statute acknowledged the Child in unconstitutional); M.D.H., (1982) Matter of (4) that there writing; past per (transfer N.E.2d 119 Ind.App., pending) obligation. Bonham’s There formance two-year former Indiana statute (declaring was no issue fore, there of material since paternity actions unconsti of limitations did err fact, granting trial court Streater, (1981) tutional); Little 452 U.S. We believe this summary judgment. hold (due proc L.Ed.2d 101 S.Ct. Bernacki, rationale of su ing is within indigent defendant in a prevents an ess pra. being denied blood group reasons, this cause is af- For the above of his inability pay). because ing tests firmed. in Matter of M.D.H. and Jus opinion Our Affirmed. concurring opinion in Mills O’Connor’s tice and legal to scientific articles concern refer ROBERTSON, J., concurs. Leukocyte Antigen (HLA) tis ing Human accuracy establishing tests and sue P.J., RATLIFF, opinion. concurs with Thus, paternity. argument lack RATLIFF, Presiding Judge, concurring. proof difficulty well fall in the face majority opinion that un- knowledge. legis scientific Our I concur of modern statutes, applicable now extended the statute of limi der lature born child was significantly. actions posthumously tations participate for (1982-83 Supp.). action 31-6-6.1-6 entitled A.I.C. § not West’s father. now file such an action at The child

HI birthday, twentieth time before and, public granted, assistance has been if department can file up welfare birthday addition, of the child.

fifth recognized claims have been

posthumous may be insti-

because five months after within the death of

tuted Id. Thus alleged argu- father. concerning stale claims spurious

ments against a deceased father unable to lose their force when these

deny are considered. I

However, view the majority’s since former concerning legislative

comments to have offered historical

policy and the

background decision here does rest those arguments need not I concur. question, I now LOY, Appellant-Defendant,

Cledith Indiana, Appellee-Plaintiff.

STATE

No. 4-782A177. Indiana, Appeals District.

Fourth

Dec. 1982. 26, 1983. Jan.

Rehearing Denied

j. Guerrero, Guerrero, Guerrero Richard Inc., Marion, P.C., appel- & Guerrero lant-defendant.

Case Details

Case Name: S.M v. v. Littlepage

Court Name: Indiana Court of Appeals

Date Published: Dec 21, 1982

Citation: 443 N.E.2d 103

Docket Number: 1-880A205

Court Abbreviation: Ind. Ct. App.