Summary
In Talley v. A M Construction Co., 284 Ala. 371, 225 So.2d 359 (1969), cert. den., 397 U.S. 995, 90 S.Ct. 1133, 25 L.Ed.2d 402 (1970), our supreme court again held that bastard children of a deceased male employee could not recover such death benefits under the Act.
Summary of this case from Foy v. VannOpinion
5 Div. 878.
June 26, 1969. Rehearing Denied August 7, 1969.
John Will Pitts and William D. Latham, Clanton, for petitioners.
Denial to illegitimate children of the right to receive death benefits under the Workmen's Compensation Laws of Alabama upon the death of their father upon whom they were dependent, constitutes invidious discrimination against them as a class, and is prohibited by the fourteenth amendment of the Constitution of the United States. Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436; Glona v. American Guarantee Liability Ins. Co., 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441. Denial of workmen's compensation benefits to a mother whose marriage to a deceased workman was due to factors unknown to her, not valid although to all outward appearances a normal marriage relationship existed is discrimination prohibited by the fourteenth amendment of the Constitution of the United States and contrary to the emancipation of women sought to be achieved by the 19th Amendment. Glona v. American Guarantee Liability Ins. Co., supra; Smith v. King, 277 F. Supp. 31 (M.D.Ala. 1967), Id. 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968). Neither the United States nor the Alabama Constitution requires the State of Alabama to provide statutory financial protection or benefits for anyone. However, once Alabama undertakes to provide such a statutory program, it may not make unreasonable arbitrary or discriminatory classifications among its citizens receiving such protection. Smith v. King, 277 F. Supp. 31 (M.D.Ala 1967), Id. 392 U.S. 309, 88 S.Ct. 2128 (1968); Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958).
C. William Gladden, Jr., Mead, Norman Fitzpatrick, Birmingham, for appellee.
An appellant cannot have a case tried to a conclusion on certain issues and following an adverse decision raise an entirely new issue by motion for new trial. Board of Ed. of Choctaw County v. Kennedy, 256 Ala. 478, 55 So.2d 511; Tucker v. Tucker, 248 Ala. 602, 28 So.2d 637; O'Bar v. Town of Rainbow City, 269 Ala. 247, 112 So.2d 790; Rayburn v. Crocker, 31 Ala. App. 542, 19 So.2d 554; Vol. 66 C.J.S. New Trial § 84, p. 263; Modern Free Accepted Colored Masons of the World v. Preston, 245 Ala. 403, 17 So.2d 404; Parkinson v. Hudson, 265 Ala. 4, 88 So.2d 793; Jackson v. McFadden, 260 Ala. 109, 69 So.2d 286. A party cannot claim the benefit of a statute, and upon an adverse decision under the statute, attack its constitutionality. Larry v. Taylor, 227 Ala. 90, 149 So. 104; Woodward Iron Co. v. Bradford, 206 Ala. 447, 90 So. 803; Board of Ed. etc. v. Kennedy, 256 Ala. 478, 55 So.2d 511. Mere dependence of a workmen's compensation claimant on the deceased is not sufficient since the claimant must also be within the prescribed legal relationship to the deceased. Sloss-Sheffield Steel Iron Co. v. Watford, 245 Ala. 425, 17 So.2d 166; Hunt v. U.S. Steel, 274 Ala. 328, 148 So.2d 618; Patterson v. Sears, Roebuck Co., 5 Cir., 196 F.2d 947; Ex parte Cline, 213 Ala. 599, 105 So. 686; Wilson v. Birmingham Elect. Co., 219 Ala. 436, 122 So. 411. A state may impose whatever conditions and restrictions it deems proper in determining who may receive the benefit of its legislative enactments, and this includes the right to require the existence of certain legal relationships on the part of claimants. Schmoll v. Creecy, 104 N.J. Super. 126, 249 A.2d 3; In re Trent's Claim, 68 Wyo. 146, 231 P.2d 180; Patterson v. Sears, Roebuck Co., 5 Cir., 196 F.2d 947; Hunt v. U.S. Steel, 274 Ala. 328, 148 So.2d 618; Sloss-Sheffield Steel Iron Co. v. Watford, 245 Ala. 425, 17 So.2d 166.
This appeal by certiorari is from a judgment denying the claim of appellant and her infant children for benefits under the Workmen's Compensation Laws on the ground that appellant's marriage to the deceased employee was invalid because he had a living wife by an undissolved marriage. A motion for a new trial was overruled.
The deceased worker married Ernestine Edwards Talley and lived with her several years, childless, and separated without divorce. Subsequently a marriage ceremony uniting him with Annie Belle Talley was performed and of this union seven children were born.
After a four-day trial, involving the claims of Annie Belle Talley and her children, and those of the legal widow, Ernestine Edwards Talley, the trial court made a detailed finding of facts which included findings that:
"d) On February 2, 1952, the deceased, John Bob Talley, and intervenor, Earnestine Edwards Talley, contracted a valid marriage in Chilton County, Alabama, which marriage was never dissolved.
"e) Prior to the year 1959 John Bob Talley began cohabiting with plaintiff, then known as Annie Belle Laister, who now goes under the name of Annie Belle Talley, and later began living with her ostensibly as husband and wife.
"f) Plaintiff's children, (naming them), are the illegitimate children of Annie Belle Talley and John Bob Talley.
* * * * * *
"i) On, to-wit, October 17, 1964, John Bob Talley and Annie Belle Talley were purported to be married in a ceremony performed in Perry County, Alabama. However, this marriage was invalid because the prior marriage of John Bob Talley with intervenor, Earnestine Edwards Talley, was valid and undissolved."
The court then denied recovery based upon cited authorities.
Appellants concede in brief that the "facts of this case as determined by the Court below and stated in its decree are not averred to be in error." Their contention is that: "under the decree of the Court below and under Alabama's Workmen's Compensation law (on its face and as applied) the illegitimate issue of an invalid marriage are unreasonably classified and excluded from Workmen's Compensation benefits and are thereby denied due process and equal protection of the laws as required by the fourteenth amendment of the Constitution of the United States."
In § 262, Tit. 26, Code 1940, the following definition appears: "(b) 'Child' or 'children' include posthumous children and all other children entitled by law to inherit as children of the deceased, * * *."
We have held that a purported "widow" and her children by a deceased male employee cannot recover in a Workmen's Compensation case when, in fact, the purported "widow" was not the legal widow of the deceased worker. Hunt v. United States Steel Corp., 274 Ala. 328, 148 So.2d 618; Sloss-Sheffield Steel Iron Co. v. Watford, 245 Ala. 425, 17 So.2d 166. The trial court based its decision on, and cited, these cases. We agree.
We do not consider or discuss the constitutional questions of due process and equal protection of the laws on which appellants contend that the judgment should be reversed.
An appellant cannot invoke action by a court and have a case tried on certain issues and then later, when dissatisfied with the result, raise an entirely new issue, such as the constitutionality of the statutes under which he was proceeding, on motion for a new trial. Board of Education of Choctaw County v. Kennedy, 256 Ala. 478, 55 So.2d 511; O'Bar v. Town of Rainbow City, 269 Ala. 247, 112 So.2d 790.
This suit was filed on July 15, 1967. The employer filed a plea in abatement on August 12, setting up the defense that Annie Belle Talley was not the wife of the deceased employee and that the children were illegitimate. The plea in abatement was held to be a plea in bar and the abatement feature was overruled on August 24. Ernestine Edwards Talley moved the court for leave to intervene on the ground that she was the legal widow of the deceased. Leave to intervene was granted October 4, 1967. On September 24, 1968, the plaintiffs, the defendant and the intervenor stipulated all facts necessary to show liability if a proper party appeared before the court. On September 24, plaintiffs joined issue on appellee's pleas. The cause was heard, taken under advisement and the judgment was rendered on November 19, 1968.
There is no transcript of the evidence since there is no dispute between appellants and appellee as to the facts or the findings of facts by the trial court.
Based upon the record before us, the pleadings, and the judgment, no issue was made or decided regarding the constitutionality of the applicable statutes or appellee's pleas. The alleged denial of constitutional rights was raised for the first time on motion for a new trial.
In the trial court, appellants were claiming benefits under the same law which they contend on appeal is unconstitutional.
In general, one cannot claim the benefits of an act and at the same time challenge its constitutionality. Larry v. Taylor, 227 Ala. 90, 149 So. 104; Woodward Iron Co. v. Bradford, 206 Ala. 447, 90 So. 803.
We hold that the trial court correctly ruled that appellants were not entitled to recover because the mother was not the legal widow of the deceased employee and their children were not his legitimate children.
Affirmed.
LIVINGSTON, C. J., and LAWSON and HARWOOD, JJ., concur.