State Ex Rel. Herbert v. Hocking Valley Mining Co. , 73 Ohio App. 483 ( 1943 )

I am unable to concur in the opinion of my associates.

Hornbeck, J., speaking for the majority, has correctly set out the facts involved in this matter.

The sole question in this court is whether the court below erred in requiring the defendant to pay a part of the award to Meskil, an illegitimate child, after the decedent had admitted in open court his paternity, and after the court before whom the proceedings had been brought had ordered the decedent to pay $2.50 per week for the support of the child.

In Staker, Gdn., v. Industrial Commission, 127 Ohio St. 13,186 N.E. 616, it is held:

"1. An illegitimate, posthumous child, unacknowledged by its putative father, is not a dependent child, within the purview of Section 1465-82, General Code.

"2. The word ``child,' used in that section, 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."

The court below, as well as the majority of this court, considered Staker v. Industrial Commission of Ohio, supra, and point to the fact that the Supreme Court has held that the syllabus states the law of Ohio only with reference to facts upon which it is predicated and must be read in view of the facts found in such case.

There are numerous cases asserting this principle, but I refer to only three. B. O. Rd. Co. v. Baillie, 112 Ohio St. 567,148 N.E. 233; Thackery v. Helfrich, 123 Ohio St. 334,175 N.E. 449; and Williamson Heater Co. v. Radich, 128 Ohio St. 124,190 N.E. 403.

None of those cases is very instructive as to just when and under what circumstances the syllabi of the Supreme Court may be disregarded. It is true that they state in effect that the syllabus states the law with reference to the facts upon which it is predicated, and must be read in view of the facts found. While this is undoubtedly true, I am loath to resort to this device, for it seems to me that the Supreme Court in the Staker case has definitely considered facts upon which the syllabus is predicated. It seems to be conceded, both by the trial court and the majority, that unless the syllabus of the decision in theStaker case is not predicated upon the facts considered and unless such syllabus is, therefore, not the law of Ohio, the decision is controlling in this case.

To determine whether Staker, Gdn., v. Industrial Commission, definitely states the law of Ohio with reference to the facts upon which it is predicated, I need but refer to the statement by Judge Jones of the matter then before the court. The facts stated by Judge Jones are identical with the facts in this case in reference to illegitimate child No. 2, even to the number of days such illegitimate child was conceived before the death of the father.

Jones, J., after stating the facts, says:

"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."

It is asserted by the majority that the question there under consideration was whether a posthumous child, unacknowledged by the father should be construed to be a dependent under the compensation law, whereas the case here to be determined is whether a child born before the death of its parent and acknowledged by him is entitled to compensation, irrespective of the fact that it is an admitted illegitimate child whose parents have not married and acknowledged the child, and who has not lived with the father.

I am of the opinion that the facts that the child in the Stakercase was not born at the time of the death of the father and was not acknowledged by him do not so distinguish it from the case at bar as to require us to discard the principles laid down in theStaker case. That case is of such vital importance that it must be read carefully, and there are certain high spots that may be alluded to.

Jones, J., examined cases from other states on the same subject matter and pointed out with approval that in Illinois the Supreme Court held the word "child" or "children" means legitimate children and will not be extended by implication to embrace illegitimate children unless such construction is necessary to carry into effect the manifest purpose of the Legislature.

He also referred to Creisar v. State, 97 Ohio St. 16,119 N.E. 128, and alluded to a Maryland case in which the word "child" as used in the Workmen's Compensation Act is held to mean legitimate child or legitimate children of the employee.

See Bell v. Terry Tench Co., 163 N.Y. Supp., 733, 177 A.D. 123. The compensation law of that state providing that a "``child' shall include a posthumous child and a child legally adopted prior to the injury of the employee," must be understood to have excluded illegitimate children.

Jones, J., in Staker, Gdn. v. Industrial Commission, stated at page 16:

"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 Compensation Act under circumstances similar to those detailed in the amended petition."

"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."

The court alluded to Section 8591, General Code, and said at page 17:

"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 Creisar v. State, supra, it is held that the term "minor" found in former Section 1655, General Code, should receive its ordinary legal significance and so construed embraces only minor children who are legitimate. The Juvenile Court has no authority to punish the father of an illegitimate child unless itspaternity has been acknowledged after intermarriage in conformity with Section 8591, General Code.

On page 18, it is stated: "Unless such terms have been so enlarged as to include illegitimate offspring, they have invariably been held as applicable only to children born in lawful wedlock." While the syllabus of this case refers only to Section 1655, General Code, in the body of the opinion it discusses Sections 13008 and 13009, General Code.

The majority has alluded to the fact that the general purpose of the Legislature should be regarded and that inasmuch as the object of the legislation was the protection of dependent children, there should be a broad interpretation of the statute in order to bring within its terms illegitimate children. I admit that there are certain principles that may invite concurrence in the majority view.

This argument based upon the legislative intent is a fair one, but evidently must be controlled not only by the terms of the statute itself, but by decisions of the court touching such matters. In Welsh v. Industrial Commission, 136 Ohio St. 387,26 N.E.2d 198, the court holds that compensation authorized by the Constitution and provided by the laws enacted in pursuance thereto, is for injured employees and their dependents. The compensation fund is created for such purpose and its disbursement to other than injured employees and their dependents is unauthorized.

In Industrial Commission v. Drake, 103 Ohio St. 628,134 N.E. 465, the court through Marshall, C.J., at page 636, says:

"It is not a pension or a bounty or charity, but in the strictest sense a mutual insurance in which benefits are payable out of a fund created by contributions from a large number of possible beneficiaries. * * *

"It is therefore very necessary that trial courts and juries, as well as the Industrial Commission, shall exercise the utmost caution and care in making awards of compensation."

I may sum up, in conclusion, to the effect that I feel that the majority has gone far astray to search for reasons why they should not follow either the statute or the decisions of our Supreme Court in interpretation thereof, apparently because they are not satisfied that the Supreme Court is right. The majority is at great length in quoting certain cases showing the length to which the court has gone in giving a liberal and humanitarian construction favorable to injured employees and their dependents under the Workmen's Compensation Act, quoting IndustrialCommission v. Dell, 104 Ohio St. 389, 135 N.E. 669, 34 A.L.R., 422; State, ex rel., v. Industrial Commission, 126 Ohio St. 85,183 N.E. 920, and Musselli v. Industrial Commission, 8 Ohio App. 407.

I have examined those cases and am unable to see their force in grounding a decision upon inferences rather remote from the case at bar, instead of upon the statute and decisions of the Supreme Court which I hold are directly in point. The majority has also indulged in the alluring but not convincing device of attempting to illustrate by suppositional cases which would lead to favorable support of the position taken by them. I do not feel that in a case where we have the statute and a plain decision of the Supreme Court we have any right to indulge in illustrations and suppositious cases that seem rather far afield from the case at bar.

This matter does not involve great sums of money. I am in sympathy with the young person who needs the money, but I do not feel that we should go to the point of disregarding the plain import of decisions of the highest court on the ground that, as stated by Weygandt, C.J., in Williamson Heater Co. v. Radich,supra, at page 126, "when obiter creeps into a syllabus it must be so recognized and so considered." It does not occur to me that there had been any "creeping" in the case of Staker, Gdn., v.Industrial Commission. When that case was decided the judges were alert as to what was being said and no claim was asserted that Judge Jones was going outside of the record in the determination of the case.

Much has been made of the argument addressed to our sympathies that an innocent bastard child should not be deprived of compensation, especially so long as he has been acknowledged by his father, and the court has made a ruling requiring the father to pay. There is no claim made for or defense of bastard No. 2 who was en ventre sa mere. It was just as innocent as was its co-bastard and I see no reason for making a distinction between them as to the right to compensation for the father's death, simply due to the accident that bastard No. 1 was born a year before the death of the father, while bastard No. 2 was born nearly nine months after the death. If there is any concession to be made in the case of bastard No. 1, then there should be a like concession in case of bastard No. 2. The distinction between the two as made by the majority is is that one was acknowledged by the father during his lifetime but without intermarriage with the mother, and the other, of course, was not acknowledged.

Since the decision of the court in the Staker case there have been two other cases decided which may throw light upon the proper interpretation of the Staker case insofar as it relates to the case at bar.

Welsh v. Industrial Commission, supra, involved a dependency claim based upon the accidental death of one Jack Welsh.

This case possibly does not closely approach the facts of the case at bar, but is worthy of reading.

Garner, Gdn., v. B.F. Goodrich Co., 136 Ohio St. 397,26 N.E.2d 203, relates to a claim of dependency on behalf of an alleged posthumous, illegitimate child of the decedent. The claim was disallowed by the commission for failure to show that the claimant was a person dependent under the provisions of the Workmen's Compensation Act.

The court refers to the Staker case, stating that it involved a claim for compensation for a posthumous child which was concededly an illegitimate child unacknowledged by its father, and says that the court in that case found that the word "child" applies to legitimate children and to children legally adopted prior to the employee's injury. The court then quotes Section 10503-15, General Code, to the effect that when a man by a woman has one or more children and afterwards intermarries with her, such issue if acknowledged by him as his child or children will be legitimate. The issue of parents whose marriage is null in law shall nevertheless be legitimate. The court also quotes from Judge Jones in the Staker case and approves the conclusion of the Court of Appeals that the claimant is entitled to participate in the workmen's compensation fund. The decision of the Supreme Court in that case was clearly based upon the fact that the man and woman were married, and the unborn child was acknowledged by him and the "stamp of illegitimacy" was thus removed from the child, and it thereupon became a dependent entitled to participate. In the case at bar there was no marriage of the parents and the "stamp of illegitimacy" still remained and under the statute the child is not a dependent and is not entitled to participate.

None of the dissenting or concurring judges in the last two cases gave any hint that in their judgment the syllabus in theStaker case was not based upon facts presented to that court.

Inasmuch as I have relied upon the Staker case I cite these later cases, which, in my judgment, strengthen its authority.