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Whitefield v. Kainer

District Court of Appeal of Florida, Fourth District
Apr 18, 1979
369 So. 2d 684 (Fla. Dist. Ct. App. 1979)

Opinion

No. 77-2420.

April 18, 1979.

Appeal from the Circuit Court, Brevard County, Virgil B. Conkling, J.

E. Clay Parker and Michael P. Falkowski, III, of Parker, Falkowski, Johnson Owen, P.A., Orlando, for appellants.

Arnold R. Ginsberg of Horton, Perse Ginsberg, Miami, and Nance Cacciatore, P.A., Melbourne, for appellee.


This appeal results from a wrongful death action in which the trial court refused to grant a motion for a directed verdict. The motion set forth that the illegitimate child was not a survivor as defined by the Florida Wrongful Death Act. We agree and reverse.

The facts are that the 18 year old alleged father was killed on a motorcycle. Nine months later his girlfriend gave birth to a child on whose behalf this wrongful death action was instituted. The child claims to be a "survivor" under Section 768.18(1), Florida Statutes (1977) which reads:

(1) "Survivors" means the decedent's spouse, minor children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters. It includes the illegitimate child of a mother, but not the illegitimate child of the father unless the father has recognized a responsibility for the child's support. (emphasis supplied)

We are of the opinion that a directed verdict should have been granted in this case. At the time of his death there was no evidence that the putative father even knew that his girlfriend was pregnant and certainly there was no evidence whatever that he had recognized any responsibility for the child's support. Therefore this child does not qualify under the unequivocal language of the statute.

The child urges upon us the cases of Wilcox v. Jones, 346 So.2d 1037 (Fla. 4th DCA 1977) and In Re Estate of Burris, 361 So.2d 152 (Fla. 1978). Both of them are distinguishable because in both Wilcox and Burris the question of responsibility for support was not in dispute.

Although not necessary to this result, we also note that the trial court did not require the child to prove paternity. It instead accepted an ex parte order entered by the probate court declaring the child to be the deceased's heir. We are of the opinion that this too was error and that the child should have had the burden of proving the deceased was his father.

Accordingly the cause is reversed with directions to enter a judgment in accordance herewith.

REVERSED AND REMANDED.

DOWNEY, C.J., and MOORE, J., concur.


Summaries of

Whitefield v. Kainer

District Court of Appeal of Florida, Fourth District
Apr 18, 1979
369 So. 2d 684 (Fla. Dist. Ct. App. 1979)
Case details for

Whitefield v. Kainer

Case Details

Full title:IRENE B. WHITEFIELD, BREVARD COUNTY SCHOOL BOARD AND HARTFORD ACCIDENT…

Court:District Court of Appeal of Florida, Fourth District

Date published: Apr 18, 1979

Citations

369 So. 2d 684 (Fla. Dist. Ct. App. 1979)

Citing Cases

Young v. St. Vincent's Medical Center

F.S. 768.21.Whitefield v. Kainer, 369 So.2d 684 (Fla. 4th DCA 1979).Grant v. Sedco Corp., 364 So.2d 774 (Fla.…

Public Health Trust v. Newry

See § 768.18(1), Fla. Stat. (1987). Compare Whitefield v. Kainer, 369 So.2d 684 (Fla. 4th DCA 1979).…