New Amsterdam Casualty Co. v. Freeland

115 S.E.2d 443, 101 Ga. App. 754, 1960 Ga. App. LEXIS 1001

Opinions

Nichols, Judge.

The sole question presented by the appeal is whether or not, under the Workmen’s Compensation Act, the natural children of an employee, who has been killed as the result of an injury arising, out of and in the course of his employment (where such children are otherwise entitled to. compensation as the result of such death), are entitled to compensation where prior to the employee’s death such children have been legally adopted by a third person.

In Sears v. Minchew, 212 Ga. 417 (2) (93 S. E. 2d 746), it was held that the adoption laws of Georgia do not divest the right of a child to, inherit from its natural father where such child has been legally adopted by a third person before the death of the father. In Travelers Ins. Co. v. Williamson, 35 Ga. App. 214 (132 S. E. 265), which involved a situation where the natural father was killed in a compensable accident after he and the children’s mother had been divorced (the mother having remarried), and such children’s support was supplied in part by the natural father and in part by the stepfather, it was held that the children were entitled to compensation under the Workmen’s Compensation Act. In Macon, Dublin, &c. R. Co. v. Porter, 195 Ga. 40 (22 S. E. 2d 818), it was 'held that a child could sue for the negligent homicide of his natural father under Code § 105-1302 although such child had been adopted , by an aunt and that in such' cases no dependency is required to be shown. See also Peeler v. Central of Georgia-Ry. Co., 163 Ga. 784 (137 S. E. 24).

Under Code § 105-1302 an adopted child may sue for the full value of' the life of his natural father; however, such child as next of kin cannot maintain an action against his father’s employer for 'the homicide of his father where such homicide arose out of and in the course of the'employment of the father where the employer and the employee are subjéct to the Workmen’s Compensation Act. Code §114-103; Wall v. J. W. Starr & Sons Lumber Co., 68 Ga. App. 552 (23 S. E. 2d 452), and citations.

Therefore, since Code § 114-414 (c)- provides that the children of the deceased employee who are under 18 years o-f age are conclusively presumed to be dependent on such deceased employee, and since Code § 114-103," supra, prohibits such child or children from bringing an action for common-law negligence against the employer, Which right the child or children would otherwise have, the judgment of the Superior Court of Telfair County in the present case affirming the award' of compensation by the full board to the children of the deceased employee, who was admittedly killed as the result' of compensable • accident, was not error for any reason assigned.

Judgment affirmed:

Gardner, P. J., Townsend and' Carlisle, JJ., concur. Bell, J:, concurs specially. Felton; C. J., and Frankum, J.; dissent: ■ • " '