186 N.E. 616 | Ohio | 1933
The sole question to be determined is whether an illegitimate, posthumous child, unacknowledged by its father, should be construed to be a dependent and entitled to compensation under the Ohio Workmen's Compensation Law.
By virtue of the provisions of Section
"The following persons shall be presumed to be wholly dependent for support upon a deceased employee: * * *
"(B) A child * * * under the age of sixteen years * * * 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. * * * 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, lined descendent, 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."
In construing an Illinois compensation act, containing provisions very similar to our own, the Supreme Court of that state held that the word "child" or *15
"children" means legitimate children. Murrell v. IndustrialCommission,
Neither in the foregoing nor any other section of the Ohio Workmen's Compensation Law is found the word "illegitimate." Had the Legislature intended to make the Compensation Act, and the proceeds of the fund derived therefrom, amenable to illegitimate as well as *16
legitimate children of an employee, and had it a purpose to place both upon the same plane of advantage, it would have used apt words in creating that obligation as it did in other cases, such as are found in Sections 1655 and 13008, General Code, which definitely relate to illegitimate as well as legitimate children. We have searched in vain for a case, and counsel for plaintiff in error have pointed out none, where an illegitimate child has received compensation under the Workmen's Compenation Act under circumstances similar to those detailed in the amended petition. One of the leading cases upon which they rely is Roberts v. Whaley,
Since the term "illegitimate" is not found in Section 1465-82, General Code, the word "child" used therein connotes legitimate children; and the term "lineal descendant" implies a descendible relation that is legitimate. Murrell v.Industrial Commission, supra. Likewise the clause, "upon the parent with whom he is living at the time of the death of such parent, or for *17 whose maintenance such parent was legally liable at the time of his death," refers to a relationship and maintenance pertaining to a legitimate child. Other sections of our Code reflect the legislative intention upon the subject in controversy. Section 8591, General Code, provides that when a man has one or more illegitimate children by a woman, "and afterward intermarries with her, such issue, if acknowledged by him as his child or children, will be legitimate." That section removes the stamp of illegitimacy from a child whose father acknowledges it and intermarries with its mother. And, again, the last clause of Section 1465-82, General Code, of the Workmen's Compensation Act, provides that "the word 'child' as used in this act shall include * * * a child legally adopted prior to the injury." Section 8030, General Code, provides for the method of legal adoption; and stipulates that such adopted child shall be invested with every legal right in respect to maintenance, etc., as if born to the parents in lawful wedlock.
Considering these statutes pertaining to legitimacy and adoption we think it is obvious that in Section 1465-82, General Code, the Legislature intended to use the word "child" in its usual and ordinary sense, and that so used it applies to children of an employee who are legitimate and to children who have been legally adopted prior to the injury; it certainly does not apply to an illegitimate, posthumous child, who has not been legitimized in the manner provided by Section 8591, General Code. In the instant case the ward cannot be construed to be a dependent entitled to compensation under the Workmen's Compensation Act.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
DAY, STEPHENSON and MATTHIAS, JJ., concur.
WEYGANDT, C.J., dissents. *18