State Ex Rel. Herbert v. Hocking Valley Mining Co.

57 N.E.2d 236, 73 Ohio App. 483, 29 Ohio Op. 152, 1943 Ohio App. LEXIS 741

• Court: Ohio Court of Appeals
• Decided: February 23, 1943
• Docket: 3494
• Status: Published

Opinions

Hornbeck, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court in the sum of $390.70, with costs, on behalf of the plaintiff and against the defendant.

The facts essential to an appreciation of .the legal question presented are that on or about January 10, 1929, Floyd Bolin died as the result of an accidental injury, at which time he was an employee of the defendant company, a self-insurer under the Workmen’s Compensation Act of Ohio. Among other dependents, Floyd Bolin left surviving him Meskil Bolin, an illegitimate child, born within a year prior to the death of Floyd Bolin. The mother of Meskil .Bolin, and the child, who was a babe in arms, did not at the time of the injury or death of Floyd Bolin, or at any other time, live with him nor did the father and mother of the child intermarry.

On October 1, 1928, Louisa Ellen Six filed complaint in the Probate Court of Athens county, Ohio, against Floyd Bolin, charging him with being the father of her illegitimate child, Meskil Bolin. Thereafter, Floyd Bolin plead guilty to the charge, was adjudged the putative father of Meskil Bolin, and ordered to pay the sum of $2.50 per week for the support of the child. Such order was in full force and effect at the time of the injury to, and death of, Floyd Bolin. Later, the Industrial Commission found that, among other dependents of decedent, “the illegitimate child known as Meskil Bolin was wholly dependent upon the deceased” and awarded the child a share of the total sum awarded by reason of the accidental death of Floyd Bolin.

Subsequent to the order of the commission the defendant employer and the guardian of Meskil Bolin executed a paper designated “Agreement as to compensation on account of death,” on a form prescribed by the Industrial Commission, in which the defendant agreed to pay the award in favor of Meskil Bolin in semi-monthly instalments of $4.50 each. The payments were thereafter made by the defendant pursuant to the order of the commission, and its agreement aforesaid, in the sum of $558, but on or about June 7, 1933, it discontinued further payments, and on July 16, 1941, there had accrued a balance of $376.61 of the amount awarded to Meskil Bolin, which, on that date, the commission ordered paid to Meskil Bolin in a lump sum.

The question presented is whether Meskil Bolin is entitled to share in the award made by reason of the death of his father, Floyd Bolin, the answer to which requires determination whether the child is a dependent within the contemplation of the Workmen’s Compensation Act.

The Ohio Constitution, Section 35, Article II, authorizes the passage of laws establishing a state fund to be created by compulsory contributions thereto by employers, for the purpose of providing compensation to workmen and their dependents, for death, injuries, or occupational disease occasioned in. the course of such workmen’s employment. Pursuant thereto, among other sections, there was enacted Section 1465-68, General Code, reading in part:

“Every employee mentioned in Section 1465-61, who is injured, and the dependents of such as are killed in the course of employment, * * * shall be entitled to receive, * * * such compensation for loss sustained on account of such injury or death, * * (Italics ours.)

At the outset it should be noted that Section 1465-68, General Code, is the basic statute which broadly states who are entitled to compensation under the workmen’s compensation fund. Meskil Bolin was in fact, as appears from the statement heretofore and which we will demonstrate hereinafter, the dependent of Floyd Bolin at the time of his injury and as such came within the express provisions of the general section defining who are entitled to compensation, namely, Section 1465-68, General Code. Section 1465-82, General Code, as effective upon the date of the injury of Floyd Bolin, in the first four paragraphs thereof, defined the amount of benefits to be awarded in the event of the death of the injured employee, if no dependents, or to those who are wholly dependent or to those who are partly dependent, and following these four provisions was paragraph five, now carried in the statute as paragraph four, which letter numbering we adopt. It reads as follows:

“4. The following persons shall be presumed to be wholly dependent for the support upon a deceased employee:

“ (A) A wife upon a husband with whom she lives at the time of his death.

“(B) A child or children under the age of sixteen years (or over said age if physically or mentally incapacitated from earning) upon the parent with whom he is living at the time of the death of such parent, or for whose maintenance such parent was legally liable at the time of his death'. # * #

“In all other cases, the question of dependency, in whole or in part, shall be determined in accordance with the facts in -each particular case existing at the time of the injury resulting in the death of such employee, but no person shall be considered as dependent unless a member of the family of the deceased employee, or bears to him the relation of husband, or widow, lineal descendant, ancestor or brother or sister. The word ‘child’ as used in this act shall include a posthumous child, and a child legally adopted prior to the injury. * * *” (Italics ours.)

It is the claim of defendant that the illegitimate child, Meskil Bolin, is not a child of Floyd Bolin as the term is employed in paragraph 4 (B) of Section 1465-82,' General Code, upon the authority of Staker, Gdn., v. Industrial Commission, 127 Ohio St., 13, 186 N. E., 616, and further, that the child does not bear the relation of lineal descendant to its father, Floyd Bolin, and therefore, because of the last part of paragraph 4 of the section, could not be found to be a dependent of its father.

Judge Leach of the' Common Pleas Court in a strong opinion held that the second proposition of the syllabus in the Stoker case was not stare decisis of the question presented here, and that, giving full consideration to the broad purposes of the Workmen’s Compensation Act, and to all of the language of Section 1465-82, General Code, the illegitimate child, Meskil Bolin, was a dependent of his father and entitled to share in the benefits of the act.

The second proposition of the syllabus in the Staker case is:

“The word ‘child,’ used in that section [Section-1465-82, General Code] is to be construed in its usual and ordinary sense, and applies to legitimate children and to children legally adopted prior to the employee’s injury.”

If this syllabus was essential to the proposition presented and decided we would readily accede to its binding force on us, but obviously it was not responsive to the narrow issue presented to the court for determination. We do not concede, on the contrary we do not believe the proposition supported, that the “usual and ordinary sense” in which the word “child” is used requires that it be given application to legitimate children only. We grant that the general rule of legal construction of the meaning of the word “child” when employed in wills or statutes includes legitimate children only, but the humanitarian purpose of the Workmen’s Compensation Act, the constitutional and statutory provisions that its benefits shall be enjoyed by injured employees and the dependents of such employees who have died, and the trend of enlightened public opinion on the rights that should be accorded an illegitimate child, require the holding that “child” as used in paragraph 4 (B) of Section 1465-82, General Code, includes'an illegitimate, as well as a legitimate, child.

Schneider’s Workmen’s Compensation Law, at page 1324, in discussing particularly the federal Workmen’s Compensation Act, but also the subject of illegitimate children as affected by such acts generally, has this to say:

“Notwithstanding, then, the generally accepted view7, and the numerous decisions, in support of it, referred to at the outset, it is believed that the secretary would be amply justified in holding that the children of a deceased employee, whether legitimate or illegitimate, at least if there is no reason to question the relationship, are entitled to the benefits of the compensation act. This would be no more than giving to the word ‘child’ its natural import. It would likewise give effect to the tendency noticeable in modern legislation, toward recognizing in illegitimates the same claims to parental care and support that belong, by natural right, to the young of any species. It would be sustained, moreover, by those authorities above cited, few in number but none the less persuasive, which announce what seems to be the more rational doctrine; and it would follow a principle of public policy wrhich does not depend for its sanction upon the infliction of vicarious punishment on the innocent and the helpless. On the other hand, to hold, as many courts have done, that the use of the word ‘child’ in a statute, without any qualification indicating a restricted sense, always implies the issue of lawful wedlock, because in generations past the law regarded a bastard as nullius films and heir to no one, is to adhere to a rule long after the reason for it has ceased to have point. Such an adherence to mere technicality, based on a legal fiction no longer operative, would be still less reasonable when dealing with a statute which, like the compensation act, is intended for a beneficial purpose and is expressly designed to relieve ordinary laborers and those dependent on them of the necessity of bearing the whole burden resulting from the inevitable accidents incident to the industry in which they are employed. ’ ’

We are not certain from which one of the citations this quotation is taken, probably from In re Claim of J. Harding, Op. Sol. C. & L. (1915), 553, which reference is not available to us, and may be but a report of a referee. In any event, it comports with our concept of the law. Other cases are cited to support the-text.

No unnecessary or improper drain on the workmen’s-compensation fund will result by the inclusion of an illegitimate child under 4 (B) of the section, for the-reason of the prerequisite to the determination of the-presumption of dependency that it further appear that the parent of such child was legally liable for its maintenance at the time of his death.

We are in accord with the opinion of Judge Leach that the question decided in the Staher case is essentially different from that which is before us in this-case. The distinguishing differences are obvious. As a matter of fact, the Staher case parallels this case in one particular only, namely, that the child was an illegitimate offspring of the deceased employee, and may be supported upon the last part of Section 1465-82, General Code, if applicable, which we hereinafter discuss. It differs in these essentials: In the Staher case the child was posthumously born; it was unacknowledged by its putative father; it was not a child for whose maintenance its parent was legally liable at the-time of his death. All of these essentials clearly appear here: The illegitimate child was born before the-death of its father; it was acknowledged by the father; and he not only was legally liable for the maintenance-of such child at the time of his death (Section 13008,. General Code), but had been adjudged to be so liable.

The first paragraph of the syllabus in Williamson Heater Co. v. Radich, 128 Ohio St., 124, 190 N. E., 403, is:

“The syllabus of. a decision of the Supreme Court of Ohio states the law of Ohio, but such pronouncement must be interpreted with reference to the facts upon which it is predicated and the questions presented to and considered by the court.”

And to like effect the second paragraph of the syllabus in B. & O. Bd. Co. v. Baillie, 112 Ohio St., 567, 148 N. E., 233, reads:

“The syllabus of a decision of the Supreme Court of Ohio definitely states the law of Ohio with reference to the facts upon which it is predicated, and must be read in view of the'facts found in such case.”

Judge Jones, in his characteristic manner, wrote a learned and strong opinion in the Staker case, and it is obvious that the opinion dominated the language of the syllabus. Judge Robinson has characterized the effect of the language of the writer of an opinion, as it relates to the doctrine of stare decisis, in Thackery v. Helfrich, 123 Ohio St., 334, 175 N. E., 449, wherein he says (p. 336) :

“Individual opinions speak the conclusions of their writer. What useful purpose they serve is an open question.”

We do not purpose to prolong this opinion or to restate at length all the reasons for our conclusion that the judgment on review should be affirmed, and are satisfied in the main to adopt the opinion of Judge Leach, having some doubt only as to his interpretation of the term “lineal descendant” as found in the last part of Section 1465-82, General Code.

We approach the question here presented upon an entirely different interpretation of Section 1465-82, General Code, than heretofore considered or employed in any reported case.

Recently, in the ease of Hertz v. Industrial Commission, 37 Ohio Law Abs., 53 (motion to certify overruled by the Supreme Court on June 3, 1942), we held that illegitimate children, living with their father at the time of his death, were his dependents and entitled to participate in the workmen’s compensation fund. We relied in part upon the last paragraph of the section beginning, “In all other cases,” etc., and determined that the illegitimate children were, members of the family of the deceased employee. This conclusion could safely be reached by giving full consideration to all of the section and without any conflict in interpretation of its terms. In the Hertz case, we said:

“If the plaintiffs were restricted in their right to recover to the language of paragraph 4 (B), G. C. 1465-82, we would have a nice question * *

We now have a case in which the rights of the plaintiff are dependent upon and restricted to the presumption of dependency arising from the application of paragraph 4 (B) of Section 1465-82, General Code, which presumption, unless wiped out by the last paragraph of the section, is not lessened or affected. The facts presented in this case, if determined in favor of defendant, require either a determination that “child” as employed in paragraph 4 (B) of Section 1465-82, General Code, means a legitimate child only, or, if it be held that “child” includes an illegitimate child, then, that the presumption attending such child under 4 (B) is removed by the last paragraph of the section.

It is our judgment, first, that the word “child” as employed in 4 (B) is not limited to a legitimate child; and, secondly, that the last paragraph of the section has no application whatever to the presumptions set out in 4 (A) and (B), but, as the plain language of the paragraph states, applies only “in all other cases.” It will be noted that the language which in part it is claimed precludes the child in this case from sharing, namely, “lineal descendant,” is found in the same sentence beginning “In all other cases.” If the section be given the interpretation here adopted, then ■every word therein can be given full force and effect; ■otherwise, there must be read into 4 (B) the word “legitimate ’ ’ modifying ‘ ‘ child, ’ ’ which is done by judicial fiat, or the term “lineal descendant” must be given priority over the language of 4 (B), thereby completely annulling it.

As we stated in the Herts case, 4 (A) and (B) of the •section deal with presumptions of dependency only, but ■every intendment of 4 (B) is met by the facts in this ■case, namely, the child, Meslri.1 Bolin, was under the .age of 16 years at the date of the death of its parent, .and the parent was, at the time of his death, legally liable for the maintenance of such child. This child comes under the class of cases mentioned in 4 (B), and ■such class is not affected in any particular by the last paragraph of the section beginning, “In all other cases.” This is true though “lineal descendant” as used therein be restricted to legitimate children.

The application of Section 1465-82, General Code, .as we have interpreted it, may be illustrated in the instant case as it relates to another illegitimate child of ■decedent by Annabelle Heightland, born posthumously to her father and for whom a claim was filed with the Industrial Commission and eventually disallowed. Such child, being a posthumous, illegitimate child for whose maintenance her parent was not legally liable at the time of his death, could not come under that class of cases included in 4 (B) of the section. Therefore, dependency in Annabelle Heightland’s case must come under the latter part of the section beginning, “In all ■other cases,” and upon the Staler case she could not qualify upon any of the provisions thereof.

Let us take a suppositional case where a deceased employee at the time of his death had a wife with whom he was not then living. She would not be entitled to the presumption appearing in 4 (A) of the section, and if entitled to any award, would be relegated to that part of the section beginning, “In aTE other cases.” The question of her dependency would? be determined -in accordance with the facts and, if at strict interpretation be given to the term “lineal do scendant,” she could not take, unless it be found that she was a member of her husband’s family.

Three cases in Ohio, among many others, Industrial Commission v. Dell, 104 Ohio St., 389, 135 N. E., 669, 34 A. L. R., 422; State, ex rel. Person, v. Industrial Commission, 126 Ohio St., 85, 183 N. E., 920; and Musselli v. Industrial Commission, 8 Ohio App., 407, illustrate the antithesis of strict construction adopted by our courts and the length to which they have gone in giving a liberal and a humanitarian interpretation favorable to injured employees and their dependents under the Workmen’s Compensation Act.

In the Dell case, supra, the Supreme Court in an opinion written by Marshall, C. J., held that Sarah Plumsteel, the first wife of Hiram Plumsteel, the deceased employee, who survived him but died before the determination of the case, was entitled to an award. Sarah Plumsteel, at the time of the death of her husband, was not living with him and, although they were married in 1875, and seven children were born of the marriage, he had left his wife in 1904, did not again return to her and in 1915 married another woman, Maggie Berg. Plumsteel in his lifetime had made contributions to the family by his first wife, which had terminated in the year 1912 or 1913 and were not again resumed. Plumsteel not only left surviving him his widow, Sarah Plumsteel, and three surviving children, but also left Maggie Berg to whom he had been married. Chief Justice Marshall, in discussing paragraph (A) of Section 1465-82, General Code, set forth the presumption there found that a wife is presumed to be wholly dependent for support upon a deceased employee with whom she lives at the time of his death and points out that Sarah Plumsteel was not living with her husband at the time of his death, nor for fourteen years prior thereto, that she had been receiving no support from him for four or five years, and that, in accord with our theory of the section, the question of her dependency would have to be determined by the latter part of the section beginning, “In all other cases,” etc. The Chief Justice then determined that, under the facts appearing, Sarah Plumsteel was a member of the family of Hiram Plumsteel, as of the date of the injury resulting in his death, and stresses the fact that she was dependent upon him though in fact she had received no support whatever from him for. years prior to his death.

In State, ex rel., Person, v. Industrial Commission, supra, Edmond Person, an injured employee, was granted an award for total disability resulting from an injury suffered on November 3, 1925. The award made in November 1927, covered a period from January 4, 1927, to December 31, 1927, but Person before receiving the award died and Charlotte Person, his widow, filed her application for compensation with the commission which was denied upon the ground that proof failed to show any dependency. The claim of the commission was that, at the time relator married Edmond Person, in January, 1927, he was totally disabled and then, and at all times thereafter, was unable to and did not provide any support whatever for his wife. In the trial in the Common Pleas Court, jury being waived, judgment was entered for the plaintiff and no error proceedings were prosecuted by the commission. Thereafter, an action, to mandamus the com mission, was instituted in the Supreme Court and there the court, Judge Allen writing the opinion, granted the writ. Judge Allen sets forth and discusses paragraph (A) of Section 1465-82, General Code, and the latter part of the' section and attention is directed to the fact that the relator falls specifically within the provisions of the presumption of the statute. At page 89 of the opinion it is said:

“It is true that this case presents an extreme illustration of the application of the law as to dependency in these cases. The wife was not supported by her husband, who was totally disabled during the entire time of the marriage. However, under the Workmen’s Compensation Act, dependency is based upon the right to support, rather than upon the actual fact of support.” Citing Industrial Commission v. Drake, 103 Ohio St., 628, 134 N. E., 465.

The foregoing authorities are also especially applicable to the instant case because of the fact.that the record here does not disclose whether Floyd Bolin complied with the order of the court that he pay $2.50 per week for the support of Meskil Bolin. It is also doubtful if the court had any right to make such an award, if the proceedings were had under the bastardy statute, but the obligation of a father to support an illegitimate child with necessary or proper home care, food and clothing, clearly appears by Section 13008, General Code, which makes it an offense for the parent to fail to observe this obligation.

In Musselli v. Industrial Commission, supra, the court held that a legal wife of a deceased employee, living in Italy at the time of the injury and death of the employee, was entitled to an award under the Workmen’s Compensation Act. It is obvious that in no one of the aforesaid cited cases could the widow of the deceased employee have been found to be a lineal descendant, in the strict sense of the term, of her hus band. If a wife, living permanently in Italy, may be said to be a member of the family of her husband, living in the United States, it would be no perversion to hold that Mesld.1 Bolin was a member of the family of his father.

In the Dell case and the Musselli case the court resorted to that part of Section 1465-82, General Code, ibeginning, “In all other cases,” etc. It is inferable that if, in either of them, the wife had come squarely mnder (A) of the section the court would have gone mo further and would not have denied the right to an award because the wife was not a lineal descendant. This latter provision of the section has application only in cases other than those especially covered by (A) and (B).

We have not discussed the effect of the failure of defendant to prosecute error from the award to Mesial Bolin, nor the effect of the subsequent agreement to which it was a party, because the parties have not mentioned it.

The judgment will be affirmed.

Judgment affirmed,.

Barnes, P. J., concurs. Geiger, J., dissents.