Travelers Insurance v. Williamson

35 Ga. App. 214 | Ga. Ct. App. | 1926

Jenkins, P. J.

(After stating the foregoing facts.) The ruling set forth in the syllabus may not be altogether, free from doubt and difficulty. We do not think that a dependent can recover under the workmen’s compensation act except by virtue of rights and remedies therein provided. Section 12 of the act provides that “the rights and remedies herein granted to an employee where he and his employer have accepted the provisions of this act respectively to pay and accept compensation on account of personal injury or death by accident shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents or next of kin, at common law or otherwise on account of such injury, loss of service or death.” The act does not purport to define dependents, or specifically to fix and determine the persons who, as such, are entitled to the benefits conferred, except as to certain persons who are declared to be conclusively presumed to be such. Among this class are children under eighteen years of age, including stepchildren. As to other persons, whose dependency is not thus fixed and determined as a matter of law, the act provides that “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.” Maryland Casualty Co. v. Campbell, 34 Ga. App. 311 (129 S. E. 447). In cases other than those in which dependency exists per se, and in which the claimant is required to make proof of such condition, it might well be that among the elements that are indicia of a state of dependency, account could properly be taken of a legal obligation to support (see case note, 13 A. L. R. 687), still, in a case in'which we are dealing with the rights of a child under eighteen years of age, it would clearly seem that the question of dependency, including the question as to whom he is dependent upon, is governed entirety by the terms of the act. Consequently, it does not follow, even though it be assumed under the law as it now is that the father in the instant case may have continued to be charged with the legal obligation to support and maintain the claimant child (Brown v. Brown, 132 Ga. 712, 64 S. E. 1092, 131 Am. St. R. 229; Hall v. Hall, 141 Ga. 361, 80 S. E. 992), and even though no such common-law obligation rested upon the stepfather (Marshall v. Macon Sash &c. Co., 103 Ga. 725, 30 S. E. 571, 41 L. R. A. 411, 68 Am. St. R. 140; Melvin v. Melvin, 129 Ga. 42, 58 S. E. 474), that the child must therefore be adjudged a dependent of the father within the meaning of the act, that being a question which is to be determined by the provisions of the statute itself. If, therefore, the statute should be construed to provide that in cases where a stepfather exists, the dependency of the child is shifted from a living father to the stepfather, then and under such a construction the child could not recover compensation on_ account of the homicide of the father. This is true for the reason that the act itself regulates the liability and speeifically declares that compensation of this character “shall be payable only to dependents and only during dependency” (§ 39).

The question, then, as we see it, resolves itself simply into a construction of the statute in order to determine upon whom it is conclusively presumed that the child is wholly dependent. If the true intent and purpose of the statute was to provide that whenever the child had both a living father and a stepfather a conclusive presumption of the entire dependency upon the stepfather should be substituted in lieu of the previous presumption of such dependency upon the real father, the claimants could not recover, and under such a construction the capable commissioner, Mr. Kilburn, would have been correct in holding that “when Mrs. Carter married Williamson and took the children to live with her, he became the stepfather of the children, and under the compensation act he became the ‘parent’ of the children, and also, under the act, they became his dependents. The fact that their natural father might at times have given them money would not establish dependency on him.” The last sentence would be true for the reason that in dealing with a child under eighteen years of age the act, and not the facts, establish dependency. There is some authority tending to sustain the view just stated. The principal case relied upon by counsel for plaintiff in error is Hoover v. Central Iowa Fuel Co., (Iowa) 176 N. W. 945. The syllabus in that case is in part as follows: “In enacting the workmen’s compensation act the legislature could, if it saw fit, provide for double dependency, or could deny compensation to any one for the death of an injured employé, so that the act is to be construed to determine what the legislative intent was. Under Code Supp. 1913, § 3477ml6, providing that a child under 16 years of age is conclusively presumed to be wholly dependent upon a deceased employé and that stepparents shall be regarded in the act as parents, . : a child whose natural father was killed, but who at the time was living with her stepfather, is pot entitled to share in the compensation.” It will be observed, however, that the court, in holding that under the terms of the Iowa statute the stepfather was substituted for the lather as being the one upon whom the child was conclusively presumed to be dependent, based the ruling upon a provision different from that contained in the Georgia statute. The provision in the Georgia statute is that “as used in this section . . the term 'parent5 shall include step-parents.” The Iowa statute provides that “step-parents shall be regarded in the act as parents.” The latter provision could far more reasonably be construed as words of substitution than could the former. If the clause in the Iowa statute had read “step-parents shall be regarded in this act as the parents,55 it would seem to demand such a construction. The Georgia statute, however, contains a very different provision. The Georgia provision is one of inclusion, not of exclusion. There -must be the idea of exclusion, in order to import a substitution. The provision of the Georgia statute is that while such compensation shall be payable only to dependents, a child under the age of eighteen is conclusively presumed to be wholly dependent upon a parent, the term parent to include step-parents. In statutes of other States which did not contain the stepfather clause, the courts have determined that no presumption of dependency upon a stepfather was declared. The manifest purpose of the clause would seem to have been to extend the sphere of conclusive dependency so as to include a step-parent. In order to do so, as the Iowa case itself adjudges, it was not necessary to exclude the real parent. Subsection (c) § 39 of the Georgia statute, itself establishes double dependency upon both the father and the mother. See also Decker v. Mohawk Mining Co., (Pa.) 109 Atl. 275. Our Supreme Court has held that the Georgia workmen’s compensation act is a remedial statute and should be liberally construed. Van Treeck v. Travelers Ins. Co., 157 Ga. 204 (121 S. E. 215). It would seem anything but a liberal construction to read into a phrase of inclusion the merely implied and altogether unnecessary effect of exclusion. There is no possible doubt that the act gives to the child compensation for the homicide of his father. It would seem to be an extremely harsh, rather than a liberal, construction of the statute to nullify unnecessarily by implication a plainly established right in favor of the child, and this by reason of a clause which, in deajjng with his rights and remedies, appears on its face to extend rather than to restrict, to include rather than to exclude. It may possibly be that the legislature in inserting the stepfather clause had in mind what might be the usual and ordinary acceptation of the word, and meant only to deal with the contingency where a widow, having children, remarries. It may possibly be that they did not intend'to deal with a situation created by divorcement, and where the child would be considered to have both a real father and a stepfather; and that all they sought to do was to create a conclusive presumption as relating to a stepfather of an orphaned child. Whether the husband of a woman is really the stepfather of her child whose natural father is living is a question that'need not be determined. It might, perhaps, be suggestive to note that the word “step,” when thus used, is “derived from the Anglo-Saxon steop, orphaned.” Standard Dictionary. But, as stated, we do not pass upon that question, since under a liberal construction of the statute it might well be that a double dependency was intended to be established. What we hold is that the stepfather clause can not reasonably be construed—and especially so under a liberal construction of the act—to exclude by an unnecessary implication a plainly established claim for the homicide of an actual parent, but that it merely enlarges the sphere of conclusive presumption in favor of the child by including a right which would not otherwise conclusively exist. See, generally, McClain v. Kingsport Imp. Corp., 147 Tenn. 130 (345 S. W. 837) ; Evans v. Evans, 125 Tenn. 112 (140 S. W. 745); Industrial Commission v. Drake, 103 Ohio St. 628 (134 N. E. 465); Panther Creek Mines v. Industrial Commission, 296 Ill. 565 (130 N. E. 321).

Judgment affirmed.

Stephens and Bell, JJ., concur.