Lippard v. Southeastern Express Co.

177 S.E. 801, 207 N.C. 507, 1935 N.C. LEXIS 185

• Court: Supreme Court of North Carolina
• Decided: January 1, 1935
• Status: Published

Opinion

OoNnok, J.

The questions of law presented by this appeal are (1) whether an illegitimate child born after the death of its father, who before his death had acknowledged his paternity of the child, is a dependent of its deceased father, within the provisions of the North Carolina Workmen’s Compensation Act, and (2) if so, whether such child is entitled to share with children of its deceased father who were born of his marriage to their mother, from whom their father had been divorced prior to his death, in the compensation awarded under the act to his dependents.

Both of these questions must be answered in the affirmative.

The provisions of the North Carolina Workmen’s Compensation Act (chapter 120, Public Laws of N. C., 1929) which are pertinent to the questions presented by this appeal are as follows:

1. “A widow, a widower, and/or a child shall be conclusively presumed to be wholly dependent for support upon the deceased employee. . . . If there is more than one person wholly dependent, the death benefit shall be divided among them; the persons partly dependent, if any, shall receive no part thereof.” Sec. 39, ch. 120, Public Laws of N. C., 1929. Sec. 8081 (uu), N. C. Code, 1931.

2. “The term ‘child’ shall include a posthumous child, a child legally adopted prior to the injury of the employee, and a step-child or acknowledged illegitimate child dependent upon the deceased, but does not include married children unless wholly dependent upon him.” Sec. 2, ch. 120, Public Laws of N. C., 1929. See. 8081 (i), N. C. Code of 1931.

The fact that the illegitimate child, whose paternity was acknowledged by the deceased employee prior to his death, was born after his death does not affect the relationship between the child and its father. The dependency which the statute recognizes as the basis of the right of the child to compensation grows out of the relationship, which in itself imposes upon the father the duty to support the child, and confers upon the child the right to support by its father. The status of the child, social or legal, is immaterial.

The philosophy of the common law, which denied an illegitimate child any rights, legal or social, as against its father, and imposed no duty upon the father with respect to the child, is discarded by the statute. The child is no less the child of its father because it was born after his death. The statute expressly provides that the compensation shall be divided among the dependents of the deceased employee. The judgment of the Superior Court is

Affirmed.