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RITA IVY, AS NEXT FRIEND OF ANDREA DENISE ALLEN, A MINOR v. ILLINOIS CENTRAL GULF RAILROAD COMPANY

JULY 22, 1987

RITA IVY, AS NEXT FRIEND OF ANDREA DENISE ALLEN, A MINOR
v.
ILLINOIS CENTRAL GULF RAILROAD COMPANY, ET AL.



EN BANC.

HAWKINS, PRESIDING JUSTICE, FOR THE COURT:

Rita Ivy appeals from the decision of the circuit court of Warren County dismissing her claim on behalf of her child

Andrea Denise Allen to establish Nathaniel Gibbs as Andrea's natural father so as to entitle Andrea to death benefits under 45 U.S.C. 59, the Federal Employers Liability Act. Finding no paternity was proven, we affirm.

 FACTS

 Nathaniel Gibbs was born June 12, 1952, one of eight children of Albert and Willie Mae Gibbs. In July, 1974, Nathaniel began working for the Illinois Central Gulf Railroad Company (ICG) as a laborer. While employed on his job he was killed July 18, 1979.

 Nathaniel never married, and lived with his parents who were at least partially dependent upon him.

 On June 15, 1981, Mrs. Gibbs, as administratrix of Nathaniel's estate, in cause number 12,575 of the circuit court of Warren County, filed a declaration under the Federal Employers Liability Act (FELA), 45 U.S.C. 59, alleging that she and her husband were his dependents. ICG filed an answer August 14, 1981.

 On January 14, 1982, Rita Allen Ivy, as the next friend and mother of Andrea Denise Allen, moved to intervene in the cause, alleging that Andrea, born January 20, 1971, was the natural daughter of Nathaniel.

 Mrs. Gibbs objected to the intervention, and in January, 1982, filed two pleadings seeking the court to overrule the motion, alleging Andrea was barred because of Miss. Code Ann. 91-1-19 and 93-9-29, that she was not Nathaniel's child, and further that Nathaniel had never acknowledged Andrea as his child.

 In April, 1982, Mrs. Gibbs filed an answer and affirmative defense to the motion to intervene, denying Andrea was Nathaniel's child, and alleging affirmatively that Nathaniel never acknowledged her as his child, that her claim was barred under Miss. Code Ann. 9-9-13, and that Andrea had no claim under this state's wrongful death statute.

 On April 28, 1982, the circuit court following a hearing (which is not transcribed in this record), entered a final judgment finding as a fact that Andrea was not Nathaniel's child. The judgment recites that Rita testified she met Nathaniel on or about September 1, 1970, and Andrea was born five months later. The circuit judge, John W. Prewitt, Sr., dismissed the motion to intervene "with

 prejudice."

 Nathaniel's father died March 27, 1983.

 On January 18, 1985, Rita filed an original complaint in cause number 13,647 of the Warren County circuit court as mother and next friend of Andrea, seeking benefits under the FELA. ICG answered this complaint, admitting liability for Nathaniel's death, but raising the question: which claimant was entitled to the death benefits. On the same date ICG moved to consolidate this action with #12,575, initially filed by Mrs. Gibbs. The circuit judge, this time John E. Ellis, sustained this motion, and also ordered that the court would hear evidence and determine which of the plaintiffs was entitled to recover for death benefits.

 No doubt the reader - as this Court - is perplexed why any attorney would expect to proceed in the same court, after having his motion to intervene, which asserted the same claim, "dismissed with prejudice."

 The answer to this question is not in this record. Rita's brief indicates, however, that after her motion to intervene was dismissed, she filed an action in the United States District Court, which the opposing parties agreed to dismiss, and re-litigate this same issue in the Warren County circuit court.

 Rita was born January 3, 1955. At the hearing Rita offered proof that Nathaniel made her pregnant, and that following the birth of Andrea he visited her periodically, gave her cash money every two weeks, and had bought presents for Andrea. She said she was nervous and confused when she testified at the first hearing that her sexual relations with Nathaniel began in September, 1970. Rita married Charles Ivy January 21, 1974, and they separated in 1979.

 In defense, Mrs. Gibbs testified Rita was not at Nathaniel's funeral, she never met her, and in fact had never heard of her until she appeared in this proceeding. Nathaniel's family corroborated this.

 There was no documentation of any kind supporting Andrea's claim of being Nathaniel's daughter.

 Following the hearing the circuit court ruled that Nathaniel never acknowledged that Andrea was his child as required by law, and further there was not sufficient proof that Nathaniel supported her.

 LAW

 On appeal Rita argues that the circuit judge erred in his ruling that Nathaniel never "acknowledged" Andrea as being his child. She urges we follow Miss. Code Ann. 71-3-3(1) of the Workers Compensation Act in determining whether Andrea was entitled to benefits under FELA. There was a misapprehension of the law in the circuit court proceedings which continues unabated on this appeal.

 45 U.S.C. 59 states:

 59. Survival of right of action of person injured

 Any right of action given by this chapter to a person suffering injury shall survive to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee, and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee, but in such cases there shall be only one recovery for the same injury.

 In interpreting the meaning of "children" under this and similar Federal statutes, the United States Courts have held resort must be had to applicable state law, not any federal statute. Bowen v. New York Cent. R.R. Co., 179 F Supp. 225 (D.C. Mass. 1959); Murphy v. Houma Well Service, 409 F. Supp. 804 (C.A. La. 1969), rehearing denied 413 F.2d 509; Smith v. Clark Sherwood Oil Field Contractors, 457 F.2d 1339 (C.A. La. 1972).

 We do not agree in interpreting the meaning of the word "children" that we should apply the provisions of Miss. Code Ann. 71-3-3(1), even if we did, it would not help Andrea, because there was not one word of proof that she was dependent on Nathaniel at the time of his death, or that Rita ever made any claim on him for support. This action specifically states, "acknowledged illegitimate child dependent on the deceased."

 In this state there was no statutory authorization for recovery of damages by an illegitimate child for the death of its father prior to 1981. Miss. Code Ann. 11-7-13, our wrongful death statute, until its amendment by Section 6 of Chapter 529, Laws of 1981, made no provision for a claim by an illegitimate child. This statute over the years has consistently provided that if the deceased left no wife the

 damages would be equally distributed to his children. And in Illinois Central Railroad Co. v. Johnson, 77 Miss. 727, 28 So. 753 (1900), this Court, albeit most reluctantly, held that an illegitimate could not recover under the Act, that children meant [legitimate] * children. The Court noted that under the common law illegitimates were the children of nobody. That Court also noted that except where the ...

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