Hewett v. Garrett, 1 N.C. App. 234

Hewett v. Garrett

1 N.C. App. 234 | N.C. Ct. App. | 1968

Parker, J.

G.S. 97-39 provides:

“A widow, a widower and/or a child shall be conclusively presumed to be wholly dependent for support upon the deceased *236employee. In all other cases questions of dependency, in whole or in part shall be determined in accordance with the facts as the facts may be at the time of the accident, but ... no compensation shall be allowed unless the dependency existed for a period of three months or more prior to the accident.”

G.S. 97-2(12) provides:

“The term ‘child’ shall include a posthumous child, a child legally adopted prior to the injury of the employee, and a stepchild or acknowledged illegitimate child dependent upon the deceased, but does not include married children unless wholly dependent upon him.”

In the case before us the Industrial Commission has ignored the conclusive presumption of dependency of a child created by G.S. 97-39, and has interpreted the words “dependent upon the deceased” as the same appear in G.S. 97-2(12) as meaning dependent in fact upon the deceased. In accord with this interpretation the Industrial Commission required that there be evidence and finding that the deceased, at the time of his death, was actually engaged in furnishing support to his acknowledged illegitimate child before the claim of such a child can be recognized.

However, in construing these same statutory sections in a case involving the claim of a posthumous, illegitimate child, the North Carolina Supreme Court has treated the dependency referred to in G.S. 97-2(12) as a legal, rather than as a factual concept. In the case of Lippard v. Express Co., 207 N.C. 507, 177 S.E. 801, the Supreme Court, speaking through Connor, J., said:

“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.”

We recognize that there is a possible ambiguity between G.S. 97-2(12) which defines the term “child” as including an acknowledged illegitimate child dependent upon the deceased, and the language of G.S. 97-39 which provides that a “child shall be conclusively presumed to be wholly dependent for support upon the deceased em*237ployee.” Exactly the same ambiguity existed, however, at the time the North Carolina Supreme Court decided the case of Lippard v. Express Co., supra, and the Supreme Court resolved it in favor of the conclusive presumption created by the latter section of the statute. In the case of a similar ambiguity between the language of G.S. 97-39 and the definition contained in G.S. 97-2(15) which defines the term “widower” to include only the decedent’s husband who “was dependent for support upon her,” the North Carolina Supreme Court upheld the claim of a widower, even though it was acknowledged in that case that as a matter of fact he had received no support from his deceased wife, the Court holding that the conclusive presumption created by G.S. 97-39 was controlling. Martin v. Sanatorium, 200 N.C. 221, 156 S.E. 849.

In view of the holdings in the Lippard and Martin cases, supra, the opinion and award of the Industrial Commission in the case before us was in error, and the cause is remanded to the Industrial Commission with the direction that judgment be entered in accordance with this opinion.

Reversed and remanded.

Campbell and Brock, JJ., concur.