Weaks v. Mounter ( 1972 )

Thompson, J.,

with whom

Batjer, J., agrees, concurring in part and dissenting in part:

The majority properly orders another trial because of prejudicial error in precluding the eyewitness testimony of Goldson. NRS 48.010(1) (b). Otherwise, I do not agree with the opinion.

1. This is an action to recover damages for the wrongful death of a minor. The plaintiffs are the father and mother of the decedent and his alleged illegitimate daughter who was born after his death.¹ Death occurred in 1966. At that time NRS 12.080 gave only the father and mother a right of action for the death of their minor child. Perry v. Tonopah Mining Co., 13 F.2d 865 (D. Nev. 1915); L. A. & S. L. R. Co. v. Umbaugh, 61 Nev. 214, 123 P.2d 224 (1942). And, of course, NRS 12.090, as it then read, granted a cause of action to heirs of a person not a minor. The statutory scheme then effective simply did not grant a right of action to a minor child for the death of her minor parent. Since the cause of action for wrongful death is created and circumscribed by statute, we necessarily are confined to the statutory authorization. Wells, Inc. v. Shoemake, 64 Nev. 57, 177 P.2d 451 (1947). That portion of NRS 12.080 utilized by the majority granting “a guardian the right to maintain an action for the injury or death of his ward,” has nothing whatever to do with this case since the decedent was not the ward of anyone.

Even if the decedent was of age when accidentally killed (he was not) the illegitimate child would not qualify as his heir invested with a right of action for wrongful death under NRS 12.090. An heir is one entitled to inherit the estate of the decedent under our law of succession. Bower v. Landa, 78 Nev. 246, 371 P.2d 657 (1962). Before an illegitimate child may be considered an heir of an alleged male parent, that parent must either have given his written acknowledgment of paternity or subsequently have married the child’s mother. NRS 134.170.² Neither event happened in this case. A cause of action for wrongful death is not given to the illegitimate child in the narrow circumstances before us. The majority has judicially created a cause of action where none existed either at common law or by statute.

2. Today’s opinion stresses the need to treat legitimate and illegitimate children equally — a proposition with which I fully agree. To do otherwise is invidious discrimination against a class in violation of the Equal Protection Clause of the Federal Constitution. Levy v. Louisiana, 391 U.S. 68 (1968); Glona v. American Guarantee Co., 391 U.S. 73 (1968); Schmoll v. Creecy, 254 A.2d 525 (N.J. 1969). However, that doctrine does not become operative until it is legally established that the deceased male is in fact the father of the illegitimate child. In Nevada, the relationship of parent and illegitimate child may be established judicially pursuant to NRS ch. 126, the Uniform Illegitimacy Act, pursuant to NRS 41.530, or by the father’s written acknowledgment of paternity in accordance with NRS 134.170. When the relationship is established in this manner the illegitimate child becomes entitled to treatment equal to that afforded a legitimate child.

I do not read the United States Supreme Court cases cited by the majority to mean that a State may not prescribe how the relationship of the putative father and illegitimate child is to be established. When the status of mother and child is involved, as in Levy, supra, and Glona, supra, their relationship is easily established. Proof of maternity does not give rise to the same problems that proof of paternity spawns. In the case of a male decedent charged with parenthood there is a legitimate fear of spurious claims against which the tort-feasor is unable to defend. For this reason, and others, our legislature has prescribed how paternity is to be established. When the legislative direction is not met, the claims of an illegitimate child to the benefits of paternity are not cognizable.

Therefore, I conclude that the child does not possess a cause of action for the wrongful death of James E. Mounter. The jury verdict and judgment for her should be set aside and the new trial should be limited to the claims of the parents of the decedent.

1 I agree with the majority that a child conceived, but not yet born, should be deemed an existing person for the purposes of a wrongful death action in the event of its subsequent birth. La Blue v. Specker, 100 N.W.2d 445 (Mich. 1960).

2 NRS 134.170: “Every illegitimate child shall be considered as an heir of the person who shall acknowledge himself to be the father of such child by signing in writing a declaration to that effect in the presence of one credible witness, who shall sign the declaration also as a witness, and shall in all cases be considered as heir of the mother, and shall inherit in whole or in part, as the case may be, in the same manner as if born in lawful wedlock. Illegitimate children shall be legitimatized by the intermarriage of the parents with each other. Children, so acknowledged or so legitimatized shall have all the rights of inheritance of legitimate children.”

See also:

NRS 122.140: “Illegitimate children shall become legitimatized by the subsequent marriage of their parents with each other.”

Smith v. Gabrielli, 80 Nev. 390, 395 P.2d 325 (1964), where summary judgment was granted to the putative father who had paid hospital and medical expenses incident to the birth of an illegitimate child, but who had not acknowledged paternity in writing.