Runt v. Illinois Central Railroad

41 So. 1, 88 Miss. 575

• Court: Mississippi Supreme Court
• Decided: April 15, 1906
• Status: Published

Opinion

Calhoon, I.,

delivered the opinion of the court.

Haley Williams, a minor eighteen years of age, was killed, as it is alleged, by the gross negligence of appellee’s servants in charge of a train, the disaster occurring in the state of Louisiana, the death of Williams caused by it occurring in that state the next day after it. Cicely Bunt, averring herself to have been his mother, sued in this state for compensatory and punitive damages. A plea to this declaration was that Williams was a bastard, never legitimized, to which a demurrer was overruled. Another declaration was filed by Marsh Holden, administrator of Williams, for both actual and punitive damages, on the same tort, which declaration avers that he was without lawful father or mother or brothers or sisters, and was never married. A demurrer to this was sustained. There was an order, by consent, consolidating the two actions, and it was agreed that the court "take judicial notice of the statutes, laws and decisions of the supreme court of the state of Louisiana” in deciding the questions arising in the case. On the action on the two demurrers, plaintiffs below declined to plead further, and appeal.

The question is whether, by the laws of Louisiana, any right of action survives to.the natural mother, or to the administrator of the deceased, or to both. The law's of Mississippi have no pertinency whatever to the case, since the accident occurred in Louisiana. A right of action for damages is transitory, of course; but, if there was no right of action at all by the law of the place, there is nothing to be transitory. This is the precise question before us. At common law there was no remedy. ■ This is too clear for debate. Lord Campbell’s act gives no right to the kin of illegitimates. This is too clear for debate. This was the law in Mississippi until there w'as legislative provision for bastards. Louisiana has no provision for succession to claims for damages resulting in death to illegitimates. By all statutes the word “children” means legitimate children, unless the contrary he expressed. This is uniformly held by the courts. In Louisiana, as at common law, until statutes intervened, the right of action for tort died with the person injured, regardless of purity of birth. Merrick’s Rev. Civ. Code La., 1900, art. 2315, gives the right of survivorship) for action to “the minor children, or widow of the deceased, and in default of these, in. favor of the surviving father and mother, or either of them.” This cannot be availed of in this case, as its reference is to legitimates only. Deceased, in fact, had no children nor wife, and, in the eye of the law', he had neither father nor mother.

Merrick’s Rev. Civ. Code, art. 3556, cl. 8, expressly says: “Natural children, even though recognized, make no part of the children properly so called, unless they have been legitimated.” There is no pretense of any legitimation here, and art. 240 of that code provides how legitimation may be effected, and that is by solemn act before a notary and two witnesses declarative of the intention.

Even, if there was a question of inheritable estate, it would go to the father or mother of the bastard only if they had “acknowledged him,” under art. 922 of that code, and by art. 203 such acknowledgment must be by “declaration executed before a notary in presence of two witnesses.” But there is no question of inheritable estate in this case. The only question is that of the right of the mother of a natural child, or the administrator of his estate, to sue for damages resulting in his death. The j udicial decisions of the state of Louisiana, with all their statutes before them, and of the supreme court of the United States construing the same laws, accord with our view that appellants cannot sue. , The cases are cited in the brief for appellee, and the citations will be made to appear in the report, so they need not be set out in this opinion. In Railway v. Williams, 78 Miss., 216 (s.c., 28 South. Rep., 853; 51 L. R., 836; 84 Am. St. Rep., 624), this court referred to Marshall v. Railroad, 120 Mo., 275 (25 S. W. Rep., 179), holding a contrary view, and stated that the opinion was expressly grounded on two statutes of that state, one declaring the mother to be the natural guardian of her illegitimate child, and the other declaring that she might inherit from it; and we said there were no such statutes in Mississippi. The trouble is that, if both these statutes existed in Louisiana, nevertheless, on the decisions there, and on the statutes, there is not any survivorship, in this sort of a case, to the right to sue for damages for a tort resulting in death.

Affirmed.