Garza v. Maverick Market, Inc.

768 S.W.2d 273, 32 Tex. Sup. Ct. J. 260, 1989 Tex. LEXIS 14, 1989 WL 19060

• Court: Texas Supreme Court
• Decided: March 8, 1989
• Docket: C-7275
• Status: Published

Opinions

OPINION

RAY, Justice.

This is a suit for wrongful death brought on behalf of a child born after the death of his alleged father. The issue presented by this appeal is whether such a posthumously-born and unrecognized illegitimate child may sue for the wrongful death of his father under the Texas Wrongful Death Act. Tex.Civ.Prac. & Rem.Code Ann. §§ 71.001-011 (Vernon 1986). The trial court directed a verdict for the defendant, Maverick Market, and the court of appeals affirmed the trial court’s judgment. 744 S.W.2d 286. We reverse the judgment of the court of appeals and remand the cause to the trial court for a new trial.

On April 18, 1984, eighteen-year-old Jesus Escobar purchased four six-packs of beer from a convenience store owned and operated by Maverick Market, Inc. in Edin-burg, Texas. Jesus and seventeen-year-old Miguel Angel de la Rosa then drove around in Jesus’ pickup truck and drank beer until they were legally intoxicated. Later that day, the two boys were involved in a head-on collision with another automobile and Miguel was killed. The occupants of the other automobile involved in the collision sued Maverick Market, alleging that their damages were caused by Maverick’s negligence in selling beer to Jesus.

At the time of Miguel’s death, his thirteen-year-old girlfriend, Celia Garza, was pregnant. The child, Miguel Angel de la Rosa, Jr., was born on October 25, 1984, approximately six months after the death of Miguel, Sr. Maria Garza, Celia’s mother, intervened in the lawsuit as a plaintiff on behalf of Celia and Celia’s child, Miguel, Jr. These parties are the only remaining plaintiffs as all other plaintiffs have settled with Maverick.

At trial, Celia testified that Miguel, Jr. was the son of Miguel, Sr. She testified that she dated Miguel for approximately two years, had a sexual relationship with Miguel, and that she had never had sexual relations with anyone else. Before Miguel’s death, Celia conveyed to Miguel her suspicions that she might be pregnant. However, since those suspicions were never confirmed until after Miguel’s death, Miguel did not know that he had fathered a child.

Leonila de la Rosa is Miguel, Sr.'s mother. She testified that Miguel, Jr. is her grandson. She also stated that she maintains an on-going relationship with Miguel, Jr., who, along with Celia, habitually spends every weekend with her.

With the assistance and testimony of Leonila de la Rosa, the Garzas sought and obtained a decree of legitimation in the 332nd District Court of Hidalgo County. When the Garzas attempted to introduce the decree at trial, the trial court excluded it from evidence ruling that it was irrelevant.

After Garza rested her case, the trial court directed a verdict in favor of Maverick Market, based on three premises:

(1) Miguel, Jr. was not entitled to recover because he was not “recognized” as the son of the decedent, Miguel, Sr.;

(2) there was no evidence that any employee of Maverick committed any negligent act which contributed to the death of Miguel, Sr.;

(3) there was no evidence that any vice principal of Maverick committed any act which would subject Maverick to liability for punitive damages.

The basis for the trial court’s directed verdict on premises two and three was that no cause of action based on “dramshop” liability was recognized in Texas. As the court of appeals correctly pointed out, since the time that the trial court granted a directed verdict, this court has recognized “dramshop” liability in El Chico Corp. v. Poole, 732 S.W.2d 306 (Tex.1987).¹ The court of appeals correctly concluded that granting a directed verdict on the second and third premises was improper. The parties agree that the only remaining disputed issue for this court to determine is whether unrecognized illegitimate children have standing to sue for the wrongful death of their alleged fathers.

The equal protection clause of the fourteenth amendment to the United States Constitution prohibits a state from absolutely barring illegitimate children from recovery for wrongful death allowed legitimate children. The equal protection guaranty does not, however, prohibit a state from imposing upon an illegitimate child a greater burden of proof to establish his right to recover for the wrongful death of his father, as long as that burden is reasonably related to the state’s interest in avoiding fraudulent claims of paternity.

Edwards Transfer Co., Inc. v. Brown, 740 S.W.2d 47 (Tex.App. — Dallas 1987), citing Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968); Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972); Gonzalez v. Texas Employers Ins. Ass’n, 509 S.W.2d 423, (Tex.Civ.App. — Dallas 1974, writ ref’d n.r.e.); Parham v. Hughes, 441 U.S. 347, 99 S.Ct. 1742, 60 L.Ed.2d 269 (1979); aff'd Brown v. Edwards Transfer Co., 764 S.W.2d 220 (Tex.1988).

The court of appeals held that in order to have standing to sue under the Wrongful Death Act, an illegitimate child must comply with the requirements of the Family Code and Probate Code, specifically, Tex. Fam.Code Ann. § 13.01 et seq. (Vernon Supp.1987) and Tex.Prob.Code Ann. § 42(b) (Vernon Supp.1987). 744 S.W.2d at 288-89. However, this court, in Brown v. Edwards Transfer Co., 764 S.W.2d 220 (Tex.1988), rejected engrafting onto the Wrongful Death Act the requirements of the Probate Code for an illegitimate child to inherit from his father. The court reasoned that while the Probate Code provided an in-depth system for disposition of property incident to estates, it did not by that statute intend to provide an appropriate means to identify classes of persons entitled to sue under the Wrongful Death Act.

Similarly, in our present case it is inappropriate to incorporate the requirements of legitimation under the Family Code into the Wrongful Death Act. The two bodies of law are simply too disparate in application for such combination. The obvious purpose of chapter 13 of the Family Code is to protect the rights of mothers and putative fathers, and to serve the best interest of the child. The text of that chapter shows that it was neither designed or even intended to address tort actions; nor was it designed to protect tortfeasors. The equally obvious purpose of the Wrongful Death Act, on the other hand, is to provide a means whereby surviving spouses, children, and parents can recover for the loss of a family member by wrongful death. Absent any indication by the legislature that it intended the legitimation provisions of the Family Code to apply to the Wrongful Death Act, we will not make that application ourselves.

We hold that in a wrongful death action an illegitimate child need not be “recognized” in accordance with other bodies of law not specifically applicable to the Wrongful Death Act. If paternity is questioned in a wrongful death action the alleged child would have to prove by clear and convincing evidence that he is a filial descendant of the deceased. Brown, 764 S.W.2d 220. As to what evidence is clear and convincing, a fact finder must decide that question in each case. Blood tests, if available, may help show the alleged father’s paternity. Tex.Fam.Code Ann. § 13.06 (Vernon Supp.1989). Evidence of physical resemblance of the child to the alleged father, either by photographs of the child and father, or by the offer of the child itself, is also admissible to determine paternity. In re B M N, 570 S.W.2d 493 (Tex.Civ.App. — Texarkana 1978, no writ); Napier v. Napier, 555 S.W.2d 186 (Tex.Civ.App. — El Paso 1977, no writ). In addition, prior statements by the alleged father that he was the father of the child, or other admissions by him bearing on his relationship to the child may be considered. D. W. L. v. M.J.B.C., 601 S.W.2d 475 (Tex.Civ.App. — Houston [14th Dist.] 1980, writ ref d n.r.e.); Napier v. Napier, 555 S.W.2d 186. A trial court can also consider evidence of periods of conception and gestation. In re M.G., 625 S.W.2d 747 (Tex.Civ.App. — San Antonio 1981, writ ref’d n.r.e.), cert. denied, 457 U.S. 1119, 102 S.Ct. 2932, 73 L.Ed.2d 1331 (1982). Whether some or all of this evidence would rise to the level of clear and convincing evidence in a particular case cannot be predicted. If, however, at least some evidence of paternity is offered in a suit under the Wrongful Death Act, an illegitimate child is entitled to a chance to argue to the trier of fact that he is the child of the alleged father.

Accordingly, in this case, we must determine whether the trial court properly directed a verdict because there was no evidence that Miguel, Jr. was Miguel’s child. In doing so, we “consider all of the evidence in the light most favorable to the plaintiff, disregarding all contrary evidence and inferences.” Jones v. Tarrant Utility Co., 638 S.W.2d 862, 865 (Tex.1982). It is error to instruct a verdict when the evidence raises any issue of material fact. Texas Employers Ins. Ass’n v. Page, 553 S.W.2d 98, 102 (Tex.1977). On this record, there was some evidence that Miguel, Jr. was the child of Miguel Angel de la Rosa. Celia Garza testified that Miguel, Jr. was Miguel, Sr.’s son, and that she had never engaged in sexual relations with anyone other than Miguel, Sr. Miguel, Sr.’s own mother, Leonila de la Rosa, testified that Miguel, Jr. is her grandson, and that she has maintained a continuing relationship with him. At the time of Miguel, Jr.’s birth, Celia Garza named Miguel as the father. Photographs were introduced into evidence to prove physical resemblance.

Inasmuch as there was some evidence that Miguel, Jr. was the deceased’s son, the trial court erred in directing a verdict for Maverick. The question of whether the evidence clearly and convincingly proved that Miguel, Jr. was the son of Miguel Angel de la Rosa was a question for the jury to determine. Accordingly, we reverse the judgment of the court of appeals and remand the cause for a new trial consistent with this opinion.

SPEARS, J., files a dissenting opinion in which COOK, J., joins.

1 . For causes of action accruing on or after June 11, 1987, the civil remedy for one injured by an alcoholic beverage licensee’s intoxicated patron is governed by statute. Tex.Alco.Bev.Code Ann. §§ 2.02, 2.03 (Vernon Supp.1989).