Butler v. Halstead by and Through Colley , 1989 Wyo. LEXIS 78 ( 1989 )

THOMAS, Justice.

The only question to be resolved in this case is whether a decedent’s mother and siblings are included in the statutory phrase “every person for whose benefit such action is brought,” found in § l-38-102(c), W.S.1977, thus permitting them to join in an action for wrongful death, brought pursuant to § 1-38-101, W.S.1977, when the decedent leaves a surviving child. The district court, relying upon Wetering v. Eisele, 682 P.2d 1055 (Wyo.1984), ruled, in a declaratory judgment action, that the surviving child “is the only person for whose benefit an action can be brought for the wrongful death of the father * * We conclude that the determination of the district court is erroneous, and we reverse the Order and Judgment.

The appellants state the issues in their appeal in this way:

“1. Whether Jordan Jody Halstead is the only person for whose benefit an action can be brought for the wrongful death of Jody Glenn Dodgion.

“2. Whether Judy Butler, Bryan Lee Butler, Amanda Colleen Butler and Kayla Dawn Butler, the decedent’s mother, brother and sisters, are retroactively precluded and barred from participating in the wrongful death action by the birth of an illegitimate child to the deceased six months after his death.

“3. Whether the trial court’s decision violates the constitutional rights of the deceased and his mother, brother and sisters.”

The brief on behalf of the appellee adjusts the issues, stating them as follows:

“1. Is the sole natural child of a decedent the only proper person for whose benefit a wrongful death action can be brought for the wrongful death of the decedent to the exclusion of the mother and half-siblings of the decedent.

“2. Did the appellants provide this court with a basis for deciding the constitutional issues raised in Appellants’ brief when the issues have not been cogently or adequately argued or briefed on appeal or to the trial court.

“3. Did the Trial Court’s decision to follow existing Wyoming law and preclude the half brothers and half sisters as well as the mother of the decedent from joining as claimants in a wrongful death action for the death of decedent with the decedent’s son violate the constitutional rights of such persons.”

Jody Glenn Dodgion, the decedent, died from injuries received in a motor vehicle accident. At the time of his death, he was survived by his mother, a half brother, and two half sisters. Subsequently, a baby boy was born to a girl who had enjoyed an intimate relationship with the decedent pri- or to his death. The parties do not question that the boy is the natural son of the decedent. A little more than seven months after the birth of the boy, a declaratory judgment action was commenced, by and through his next friend and guardian (ap-pellee), seeking a determination by the court that he was the only person who could bring an action for the wrongful death of the decedent. The mother and siblings of the decedent (appellants) were the defendants in the declaratory judgment action.

The case came on before the district court upon the appellee’s Motion for Summary Judgment, which the court granted. It concluded that there was no genuine issue of material fact and that the effect of this court’s decision in Wetering, 682 P.2d 1055, was that if a child survives, that surviving child is the only person for whose benefit the wrongful death action authorized by § 1-38-101 may be brought. The trial court ruled that it was bound by the doctrine of stare decisis and that the mother and siblings would not be permitted to participate in the wrongful death action. There is no assertion that the mother of the surviving child should b.e included among those for whose benefit the action may be brought.

In Wetering, the court’s opinion suggested that in Jordan v. Delta Drilling Company, 541 P.2d 39, 78 A.L.R.3d 1215 (Wyo.1975), and Saffels v. Bennett, 630 P.2d 505 (Wyo.1981), the court may have written too much. It now appears that the same suggestion would pertain with respect to Wet-ering.

A brief summary may be in order. In all three cases, the court was analyzing the legislative adjustments which had been made to §§ 1-38-101 and 1-38-102. The effort was to determine, in the absence of any statutory indication, those persons who could participate in and benefit from an action for wrongful death. In Jordan, the court held that an acknowledged child whose parents had not been married could recover for the wrongful death of a father. In Saffels, the court held that an ex-wife could not. In Wetering, the court held that a brother and the sisters of the decedent could participate in the action when the decedent was survived by his father, mother, four sisters, and a brother. We quoted § 2-4-101(c) and said that the persons identified in the quoted provisions were among the persons for whose benefit the action could be brought. We went on to say in Wetering, 682 P.2d at 1062:

“ * * * This does include the surviving brother and sisters in this instance because the decedent did not leave a wife or children surviving. We further hold that the wrongful death action now is brought by the personal representative in his capacity as administrator of the decedent’s estate. In this instance the judgment is not subject to payment of debts because of the specific provisions of § l-38-102(b), W.S.1977 (Cum.Supp. 1983), but if the decedent had left no father and mother surviving the proceeds of the judgment could be utilized to satisfy debts of the decedent. We further hold that distribution of the proceeds of the judgment is controlled by § l-38-102(c), and not by § 2-4-101, W.S.1977 (Cum.Supp.1983), because the specific must govern over the general.”

Section 2-4-101, W.S.1977, establishes the rules of intestate succession in Wyoming. The district court interpreted what was said in Wetering as limiting those who could participate in a wrongful death action to those who would be entitled to receive the property of the particular decedent’s estate in accordance with § 2-4-101. The perception of the district court is understandable, but it is not what the court intended. The awkward language is obiter dictum. The rule of stare decisis limits Wetering to the facts there which were that those persons for whose benefit the action could be brought all were identified in § 2-4-101(c)(ii). The logic of referring only to § 2-4-101(c) must be denied when the other provisions of § 2-4-101 are considered because of the number of varying circumstances that are contemplated.

Perhaps the court would have been wiser to, in effect, provide an advisory opinion in Wetering. At that time, confronted by the tempering that Saffels provided for the wide ranging suggestion in Jordan in terms of who might participate, the court’s concern was to endeavor to provide a manageable definition in the absence of legislative assistance.

We now hold that the persons for whose benefit a wrongful death action is brought are all of those persons identified in § 2-4-101. Whether any such recoveries will be subject to the payment of debts will be controlled by the provisions of § l-38-102(b), and the distribution of any proceeds will be controlled by § l-38-102(c), not by § 2-4-101. This approach will make the persons for whose benefit a wrongful death action may be brought identical to those identified in Gates v. Richardson, 719 P.2d 193 (Wyo.1986), who may be entitled to recover for negligent infliction of emotional distress. In that case, we mentioned specifically spouses, children, parents, and siblings. We do note that § 2 — 4—101(c)(iii) would encompass grandparents, uncles, aunts, and cousins. In our judgment, extending to those related persons the opportunity to participate in a wrongful death action does not unduly extend the class of persons for whose benefit such actions may be brought to the point that it would be unmanageable.

The resolution of the first issue in favor of the appellants makes any consideration of the constitutional problem unnecessary. The order and judgment of the district court is reversed, and the case is remanded with instructions to enter an order and judgment consistent with the court’s opinion.

URBIGKIT, J., concurred in the result only.

BROWN, J., Retired, filed a dissenting opinion.