Opinion
No. 34411
Decided December 5, 1956.
Workmen's compensation — Benefits in case of death — "Dependent" child — Section 4123.59, Revised Code — "Child or children" construed — Illegitimate child not entitled to benefits, when.
1. The words, "child or children," used in Section 1465-82, General Code (Section 4123.59, Revised Code), are to be construed in their usual and ordinary sense and apply only to legitimate children, adopted children and illegitimate children who have been legitimatized in a manner provided by statute. ( Staker, Gdn., v. Industrial Commission, 127 Ohio St. 13, approved and followed.)
2. An illegitimate child who has not been legitimatized in a manner provided by statute is not a dependent child within the purview of Section 1465-82, General Code (Section 4123.59, Revised Code), so as to be entitled to benefits under the Workmen's Compensation Act.
APPEAL from the Court of Appeals for Belmont County.
Some seven months after his birth in 1936 plaintiff's mother, Hestine Mobley, died, and two months thereafter he was taken to the home of Tie P. Miller and his wife, where he lived until the death of Mrs. Miller in 1944. After the death of Mrs. Miller plaintiff was taken to the home of one Queen Esther Robison, where he lived and was supported by Tie P. Miller until the latter's death.
This cause arose upon the filing of a claim for benefits under the Workmen's Compensation Act by the plaintiff on the ground that he was a dependent child of Tie P. Miller who was killed in a mine accident. The Industrial Commission disallowed the claim on the ground that plaintiff was not a dependent of the deceased workman at the time of his death.
An action was then brought in the Court of Common Pleas which found for defendant commission. Upon appeal to the Court of Appeals the judgment was reversed on the weight of the evidence and final judgment was rendered for plaintiff; and this court in Miller, a Minor, v. Industrial Commission, 158 Ohio St. 551, 110 N.E.2d 481, reversed the judgment of the Court of Appeals and remanded the cause to that court for further proceedings.
The Court of Appeals then reversed the judgment of the Court of Common Pleas on the weight of the evidence and remanded the cause for a new trial. Upon the second trial judgment was again rendered for defendant, and again upon appeal the judgment of the Court of Common Pleas was reversed by the Court of Appeals.
The cause is before this court upon the allowance of a motion to certify the record.
Mr. L.P. Henderson, for appellee.
Mr. C. William O'Neill, attorney general, Mr. Paul Tague, Jr., and Mr. James M. Videan, for appellant.
An examination of the record in this case discloses that plaintiff is conceded to be an illegitimate child; the only controversy in the courts below being whether the deceased workman was the father of the plaintiff.
Although various questions in relation to the instructions of the trial court and as to the withdrawal of an interrogatory submitted to the jury are raised by the parties, none of them need be considered in the disposition of this case.
This court in the syllabus of Staker, Gdn., v. Industrial Commission, 127 Ohio St. 13, 186 N.E. 616, 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." (Emphasis added.)
Section 10503-15, General Code (Section 2105.18, Revised Code), states in part:
"When, by a woman a man has one or more children, and afterward 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."
There is no contention in the present case that decedent, the alleged father, ever intermarried with plaintiff's mother and acknowledged plaintiff as his child so as to legitimatize him in the manner provided by that statute, nor is there any contention that decedent adopted plaintiff so as to bring him within the purview of that part of Section 1465-82, General Code (Section 4123.59, Revised Code), which specifically recognizes "a child legally adopted prior to the injury" as one eligible to receive benefits under the Workmen's Compensation Act.
Plaintiff, therefore, is not a dependent child within the meaning of the Workmen's Compensation Act and is not entitled to participate in the State Insurance Fund; and under such circumstances it was the duty of the trial court to direct a verdict in favor of defendant.
Various cases of lower courts in Ohio which have come to this court's attention show an apparent unwillingness to accept or follow the law in the Staker case, supra. To our knowledge, however, the pertinent statutes, as they existed prior to and at the time of the Staker case and as they apply to these facts, have not been changed, and the scope and effect of the Staker case have not been altered by this court. For these reasons we feel it necessary to reiterate the law as set forth in that case and to reaffirm it as a correct interpretation of the statutes therein examined.
The judgment of the Court of Appeals is reversed, and final judgment is rendered for defendant.
Judgment reversed.
WEYGANDT, C.J., HART, ZIMMERMAN, STEWART, BELL and TAFT, JJ., concur.