Hewett Ex Rel. Wilson v. Garrett , 274 N.C. 356 ( 1968 )

163 S.E.2d 372 (1968) 274 N.C. 356

Mrs. Willa Blanche HEWETT, Widow; Barbara Ruth Hewett, Minor Daughter, by her Next Friend, Rebecca Wilson; Carl Hayes Hewett, Deceased Employee
v.
S. W. GARRETT, Employer; Glens Falls Insurance Co., Carrier.

No. 193.

Supreme Court of North Carolina.

October 9, 1968.

James, James & Crossley, by John F. Crossley, Wilmington, for plaintiff widow.

Aaron Goldberg, Wilmington, for minor plaintiff.

HIGGINS, Justice.

The Industrial Commission found upon plenary and uncontradicted evidence that Barbara Ruth Hewett is the illegitimate child of the deceased employee, Carl Hayes Hewett. All the evidence disclosed that the father and mother, Barbara Wilson, although unmarried, lived together in North Carolina prior to and at the time of their daughter's birth on June 8, 1957. The birth certificate, filed at Brevard, gives to the daughter the Hewett name and lists Carl Hayes Hewett as her father. The evidence further disclosed, and the Commission found, that the mother and the child left North Carolina and moved into the home of the child's maternal grandmother in New York, and continued to live thereafter for several months in her home. During that time, Carl Hayes Hewett contributed to the support of the mother and the child.

We note the record does not contain a pointed and specific finding or conclusion that Carl Hayes Hewett acknowledged Barbara Ruth Hewett as his illegitimate daughter. However, Finding of Fact No. 6 has been treated by the parties, by the Industrial Commission, and by the Court of Appeals as the equivalent of such a specific finding. The widow's brief before this Court thus states the question presented:

"1. Is the North Carolina Court of Appeals in error in holding in its opinion, rendered May 15, 1968, that an illegitimate child, acknowledged by its father, however, not supported by its father and not in fact dependent upon its father, is conclusively presumed by statute law to be entitled to share in an award arising out of the death of its father?"

The acts and conduct of Carl Hayes Hewett as disclosed by Finding of Fact No. 6 permits no reasonable conclusion except his acknowledgment that Barbara Ruth Hewett is his illegitimate daughter. The parties, the Industrial Commission, and the Court of Appeals were fully justified in so treating the finding.

Apparently not because of lack of evidence that Carl Hayes Hewett actually acknowledged Barbara Ruth Hewett as his illegitimate daughter, but lack of evidence that he actually contributed to her support for 4½ years preceding his death, the Industrial Commission concluded that Barbara Ruth Hewett did not qualify as a child and was not entitled to participate in the compensation benefits.

This review involves the validity of the Court of Appeals decision reversing, in part, the award of the Industrial Commission and remanding the cause to the Commission with directions to enter an award permitting the illegitimate child to share equally with the widow in the death benefits. The legal validity of that decision is the sole question of law presented for our review. Does Barbara Ruth Hewett qualify as an acknowledged illegitimate child of Carl Hayes Hewett?

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. * * *"

It should be noted the wholly dependent provision applies only in case of married children. It does not apply to acknowledged illegitimates or other children who are unmarried and who are under 18. The statute recognizes a distinction between actual and legal dependency. A legal dependence is sufficient and the law fixes that type of responsibility on the father of an illegitimate. Moreover, G.S. § 97-39 provides: "* * * a child shall be conclusively presumed to be wholly dependent for support upon the deceased employee. * * *"

In this case certain it is that at birth and thereafter for approximately 16 months Carl Hayes Hewett acknowledged Barbara Ruth as his illegitimate child. In the records of births, he is listed as the father. He lived in the house with her and her mother and contributed to their support from her birth until her grandmother broke up the family arrangement when she discovered her daughter and Carl Hayes Hewett were not married. Although evidence is lacking that he contributed to the child's support after he separated from the mother, his legal responsibility continued. His failure to support did not work a forfeiture of the child's right to participate in the death benefits under Workmen's Compensation.

When an illegitimate child qualifies as a child (as Barbara Ruth did in this case) the status, for compensation purposes, continues until the child becomes 18 years of age or unless she marries before reaching that age. G.S. § 97-2(12) clearly sets out how a child, legitimate or acknowledged illegitimate, may lose its right as a child to share in compensation benefits:

1. By reaching the age of 18 years, whether married or single.

2. By marriage before 18 unless after marriage the child continues wholly dependent upon the parent.

It must be remembered that the Compensation Act should be liberally construed to the end that benefits may not be denied on narrow or technical grounds. Johnson v. Asheville Hosiery Co., 199 N.C. 38, 153 S.E. 591.

In construing the provisions of the Workmen's Compensation Act here involved, Justice Connor, in Lippard v. Southeastern Express Co., 207 N.C. 507, 177 S.E. 801, used this language:

"1. ``A widow, a widower, and * * * child shall be conclusively presumed to be wholly dependent for support on the deceased employee. * * *'

2. ``The term "child" shall include * * a child legally adopted prior to the injury of the employee, and a step child or acknowledged illegitimate child dependent upon the deceased, but does not include married children unless wholly dependent upon him.'

* * * 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. * * *"

In Lippard, an acknowledged illegitimate, though unborn at the death of the father, was permitted to share in his death benefits under Workmen's Compensation. Justice Connor's opinion was filed January 1, 1935. Since then, the General Assembly has convened in 17 regular and a number of special sessions and has failed to make any change in the statute. We may assume the law-making body is satisfied with the interpretation this Court has placed upon its Workmen's Compensation Act. See also annotation, 100 A.L.R. 1098, Note (b), Illegitimate Children; Martin v. Glenwood Park Sanitarium, 200 N.C. 221, 156 S.E. 849. The case of Wilson v. Utah Construction Co., 243 N.C. 96, 89 S.E.2d 864 is not in conflict. In that case there was no evidence the deceased employee had ever acknowledged, as his, the illegitimate child.

After careful review, we conclude the decision of the North Carolina Court of Appeals holding that Barbara Ruth Hewett is entitled to share equally with the widow is correct.

The decision is

Affirmed.