Rager v. Turley

John E. Jennings, Judge, dissenting. The primary issue on appeal is whether an illegitimate child is entitled to participate as a beneficiary in a wrongful-death proceeding. The trial court held, as a matter of law, that the claim was barred. The majority holds, correctly in my opinion, that the trial court erred in so ruling. The majority then, however, affirms the trial court’s decision on the basis that the evidence is insufficient to establish that Joshua Rager was in fact the illegitimate child of the decedent. I think the majority is wrong for several reasons.

In the first place Joshua Rager was not yet a party to this lawsuit. When the trial court denied his motion to intervene and ruled, as a matter of law, that an illegitimate child could not participate in a wrongful-death settlement, this obviated any need for proof on the issue. A proffer is unnecessary when the substance of the evidence is apparent. Rule 103, Arkansas Rules of Evidence. The law does not require a useless act. Doup v. Almand, 212 Ark. 687 , 207 S.W.2d 601 (1948). It is not even clear that Joshua, as a nonparty whose motion to intervene had been denied, would be entided to offer evidence.

But even if we were to require affirmative evidence that Joshua was the child of the decedent, such evidence was before the trial court. Margie Rager, the decedent’s mother, testified that she adopted Joshua. She testified that the decedent told her that Joshua was his son and that Joshua had lived with her for some two years. She testified that she told Chandra Turley, a daughter of the decedent and the administratrix of his estate, that Joshua was Tommy Rager’s child. Chandra Turley testified that she had been told this by her grandmother.

Although the trial court never reached the issue whether Joshua was in fact Tommy Rager’s son, surely the evidence would support a finding that he was.

For the reasons stated, I respectfully dissent. I am authorized to state that Judge CRABTREE joins in this dissent.