Appeal from the Circuit Court for Worcester County; Child, J.
Brune, C. J., and Henderson, Hammond, Marbury and Sybert, JJ. Marbury, J., delivered the opinion of the Court.
This appeal emanates from an automobile accident which occurred on January 17, 1961, in Snow Hill, Maryland, when a truck driven by the appellant James Plummer Holley and owned by the appellant Carlton Perry Taylor collided with a bread delivery truck owned by General Baking Company and driven by Preston Royce Mears. Mears was instantly killed, and the parties agreed that he was killed while in the course of his employment. The decedent left surviving him two legitimate children born of a marriage which had been terminated by divorce. He also left surviving him one Margaret Anne Pusey Mears, with whom the decedent lived, but to whom he never was married, and two illegitimate children by her, namely, Gail Ann Mears and Preston Lee Mears.
Subsequent to an award by the Workmen's Compensation Commission, suit was brought against the appellants by the filing of a three-count declaration based upon Code (1957), Article 67 (titled Negligence Causing Death, but more commonly referred to as Lord Campbell's Act or the wrongful death statute). The count with which this appeal is concerned is the second one in which damages were sought for the two illegitimate children and their mother. The defendants' demurrer to the count was overruled. A general issue plea was filed and the case was tried. In the course of the trial objections
were made by the defendants to all testimony concerning any relationship between the decedent and Margaret Anne Pusey Mears and her two children. Motions for directed verdicts offered by the defendants were overruled. The jury returned a verdict under the second count. It awarded nothing to the mother, but awarded Gail Ann Mears $15,694, and her brother Preston Lee Mears $16,858.
On this appeal from the judgments entered on this verdict for the plaintiffs-appellees, the defendants-appellants raise two interrelated questions of law. They first contend that illegitimate children who have recovered under the Workmen's Compensation Act for the death of their natural father can not bring a suit under the Maryland Lord Campbell's Act. They also contend that even if they are wrong on this point generally, nevertheless illegitimate children may not sue under the wrongful death act where there are, as in this case, surviving legitimate children of the deceased.
The thrust of the argument is that the plain meaning of Article 67, Section 4, while admittedly allowing an illegitimate child to recover for the death of its mother, does not include recovery where the deceased parent is the father. In pertinent part Section 4 reads as follows:
"Every such action shall be for the benefit of the wife, husband, parent and child of the person whose death shall have been so caused [wrongfully] * * * 'child' shall include an illegitimate child whenever the person whose death is so caused is the mother of such child * * *."
We were within one step of the situation presented here in the case of State, Use of Holt v. Try, Inc., 220 Md. 270, 152 A.2d 126. There the question was whether illegitimate children of a deceased father could recover under Article 67 for the wrongful death of the father where the mother of the decedent was alive and also a use-plaintiff in the same action. We held that they could not. It was argued that Code (1957), Article 1, § 16, which directs that the word "child" be construed to include "illegitimate child" except where unreasonable (or in specified situations not there applicable) should be
read in pari materia with Article 67 to hold that the illegitimate children had standing to sue.
Writing for this Court, Judge Prescott reasoned that since the legislature had struck out of a bill amending the act (Session Laws, 1937, Ch. 38) a provision which would have expressly permitted an illegitimate child to recover for the death of its father "in certain cases", that the legislative intent was clearly expressed, and that to include illegitimate children among those entitled to bring a wrongful death action would have placed a tortuous construction upon Article 1, Section 16. By footnote reference, the opinion of the Court noted that we were not called upon to decide whether illegitimate children could qualify under Section 4 of Article 67 if they were dependent upon the deceased and where the deceased ...