I am unable to agree to the conclusion of the majority. The conclusive presumption created by Section 1402 of the Code of 1924 no doubt grows out of the well-known fact that children under the age of sixteen usually accompany and reside with the mother. This well-known fact doubtless suggested to the legislature that the presumption should be extended to stepchildren. In other words, the justification for the conclusive presumption is the almost universal fact of dependency of children under sixteen years of age upon the father or stepfather for support. We held, in Hoover v. Central Iowa FuelCo., 188 Iowa 943, that a child under sixteen years of age, residing with its mother in the home of a stepfather, was not the dependent of the father, within the meaning
of the statute. In the present case, the evidence shows, and the commissioner found, that the wife and mother of the minor children in question permanently abandoned her husband, and was not entitled to compensation. She returned to the home of her son, with whom the father of the children appears to reside. The abandonment by the wife did not, of course, dissolve the marriage relation, but it did completely absolve the stepfather from any legal duty to support the stepchildren. Menefee v. Chesley,98 Iowa 55. It is also true that the return of the wife to the home of her son, with whom her former husband resided, did not restore the relationship of husband and wife, but it did create a situation from which a presumption so strong arose that the abandoned husband would not in the future in any way contribute to the support of the minor children — for which he was under neither legal nor moral obligation — as to overcome every reasonable probability that the children could be dependent upon him for any kind of assistance. The only probability that the deceased, had he lived, would have aided the minor children is that he might have been induced to do so temporarily, for sentimental reasons. The relation of affinity between the stepfather and the stepchildren created by his marriage with their mother had by her abandonment become a mere fiction, and the finding of the majority that the children were dependents, within the meaning of the Compensation Law, is wholly without support in the record. A proper application of the doctrine announced in the Hoover case would remove the presumption created by Section 1402.
I am authorized to say that Justices Faville and Albert concur in this dissent.