Opinion
No. 2070
May 25, 1938
WORKMEN'S COMPENSATION LAW — STATUTES — ALIEN ILLEGITIMATE CHILDREN — DEPENDENTS — COMMON LAW — APPEAL AND ERROR — ABSTRACT OF RECORD — COSTS — SUPREME COURT RULES.
1. The amendment of the definition of "child or children" as used in the Workmen's Compensation Act by the insertion of the words "immediate offspring" did not enlarge the meaning of the words "child or children," ordinary meaning of "offspring" being issue or lineal descendants of any degree (Rev. St. 1931, § 124-106-7(k), as amended by Laws 1935, c. 100, § 2). 2. The words having a well-settled meaning in the jurisprudence of a country are to be understood in that sense when used in statutes unless a different meaning is unmistakably intended (Rev. St. 1931, §§ 26-101, 112-101). 3. Knowledge of the settled principles of statutory interpretation must be imputed to the legislature (Rev. St. 1931, §§ 26-101, 112-101). 4. Prima facie the word "children" in a statute means legitimate children. 5. Alien illegitimate children who were nonresidents were not entitled to compensation for death of father in coal mine as "children" or "immediate offspring" or as members of a "dependent family" within meaning of the Workmen's Compensation Act, although they were supported by father in his lifetime (Rev. St. 1931, §§ 124-106-7(j, k), 124-120, as amended by Laws 1935, c. 100, §§ 2, 5; Const. art. 10, § 4). 6. The words "children," "boys" and "girls" as used in the Workmen's Compensation Act with respect to awarding compensation in their favor for death or injury to parent, mean "legitimate children" (Rev. St. 1931, § 124-106-7(k), as amended by Laws 1935, c. 100, § 2; Const. art. 10, § 4). 7. On employer's appeal from an award of compensation in favor of claimants, where employer's abstract of record failed to comply with court rule, but record was not large and facts not in serious dispute, and question was one of law in which the state, as custodian of fund, was interested, appeal was not dismissed, but costs were taxed as though order appealed from had been affirmed, although it was in fact reversed (Rules of the Supreme Court, rule 37).
APPEAL from the District Court, Sweetwater County; V.J. TIDBALL, Judge.
For the appellant, the cause was submitted on the brief of T.S. Taliaferro, Jr. and A.L. Taliaferro, of Rock Springs, and John U. Loomis of Cheyenne.
The beneficiaries of the award are non-resident alien illegitimate children. The evidence offered in support of claimants was incompetent. There was no evidence that the infants were ever members of the deceased workman's family, but there was evidence that they never occupied any family relationship with the deceased workman. The employer does not believe that these infants come within the provisions of the Wyoming Industrial Accident Insurance Law. Their legal rights should be clarified by judicial interpretation. Cuthbertson v. Union Pacific Coal Company, (Wyo.) 62 P.2d 315; State Constitution, Sec. 4, Article 10. The laws of Italy recognize divorces granted by the American Courts. Martindale-Hubbell Law Digest of Italian Laws. The Wyoming statute provides that no spouse shall be entitled to the benefit of compensation act unless he or she shall have been married to the workman at the time of the injury. Sec. 124-106-7, R.S. Compensation to a common law spouse is denied. Olson's Case, (Mass.) 142 N.E. 808. There is no conclusive presumption as to dependency. Gritta's Case, (Mass.) 127 N.E. 889; In re Cowden's Case (Mass.) 113 N.E. 1036. Family relation has been well defined by the courts. Kelley's Case, 222 Mass. 538; Newman's Case, 222 Mass. 563; Union Trust Company v. Cox (Okla.) 155 P. 210; 25 C.J. 664. It was a family group thus defined that the courts and compensation act of Wyoming had in contemplation. Lane v. Phillips (Tex.) 6 S.W. 610. The Wyoming statute does not include illegitimate children. The Wyoming Industrial Accident Insurance Act does not abandon the moral code of the common law. Section 124-120, R.S. Dependents of an injured workman are defined by Sections 124-106-7, (k) R.S. 1931. See also Broadbent's Case, (Mass.) 134 N.E. 634; Moltz v. Hansell, (Penn.) 175 A. 880; Hargrove v. Casualty Company, (Tex.) 66 S.W.2d 468; Utah Fuel v. Industrial Commission (Utah) 234 P. 699; Travelers' Ins. v. Peters (Tex.) 280 S.W. 312; 71 C.J. 543; Roberts v. Whaley (Mich.) 158 N.W. 209; Bassier v. Construction Co., (Mich.) 198 N.W. 989; Scott v. Ice Company, (Md.) 109 A. 117. An illegitimate child may of course be lawfully adopted and become a dependent. Larkhart v. Bailey Coal Co., (Ky.) 30 S.W. 956; Travelers' Ins. Co., 177 App. Div. 123, 163 N.Y.S. 733. The New York statute was amended to apply to an acknowledged illegitimate child dependent upon the deceased as compensable. Offspring are defined in the following cases: Barber v. Pittsburgh R. Co., (U.S.) 41 L.Ed. 933; Giles v. Wilhoit, (Tenn.) 48 S.W. 268; Powell v. Brandon, 24 Miss. 343; Mitchell v. Pittsburg, (Penn.) 31 A. 67. Alien infants are not compensable under the Michigan statute. Westfall v. Burroughs Son, (Mich.) 274 N.W. 358. It is clearly apparent that the authors of the Constitutional Amendment and of the Workmen's Compensation Law, enacted pursuant to such amendment, intended that the law should apply to dependents of legitimate family relationships and not to alien illegitimate children.
For the respondents, the cause was submitted upon the brief of Joseph Galicich of Rock Springs.
Appellant's purported abstract of the record fails to comply with rule 37 of this court and is also argumentative. Tibbals v. Graham (Wyo.) 61 P.2d 285; St. Claire's Estate (Wyo.) 28 P.2d 894; Lane's Estate (Wyo.) 60 P.2d 360; Simpson v. Occ. Assn. (Wyo.) 19 P.2d 958. The record shows that the deceased workman supported claimants by contributions from his earnings in the years 1932 to 1935 inclusive. The finding of the trial court that the claimants were dependents of the injured workman is one of fact, and unless there is a total absence of evidence to support the finding, it is conclusive and binding upon the appellate court. Coleman Co. v. Wicks (Ky.) 280 S.W. 936; Steel v. Griffin (Ala.) 106 So. 899; Leach v. Case Co. (S.D.) 219 N.W. 884; Weliska's Case (Me.) 131 A. 860; American Smelting v. Ind. Com. (Utah) 250 P. 651. There was evidence that the workman acknowledged the paternity of the claimants. The pertinent part of Section 124-120, R.S. 1931 as amended by Chapter 100, Laws 1935, provides compensation for dependents of injured workmen, and Section 124-107, R.S. as amended by the same chapter defines dependent families, using the term "immediate offspring," without expressly excluding illegitimate children. This court in the case of Zancanella v. Central Coal Coke Company (Wyo.) 173 P. 981 clearly stated the purpose and intent of the Workmen's Compensation Law. See also notes in L.R.A. 1916A 124; L.R.A. 1917D 158; L.R.A. 1918F 485 and Annotated Cases 1913E 483; Schneider, Workmen's Compensation Law, 2d Ed. 1324. It is fair to assume that our legislature used the terms "child or children" or "immediate offspring" in their common and popular signification rather than with reference to any legal or technical sense. Cuthbertson vs. U.P. Coal Company, 50 Wyo. 441, 62 P.2d 311. To show that claimants are within the term "dependent families" we submit the following authorities: 71 C.J. 543 and cases cited. The following statutes have an important bearing upon the question at issue. Sections 20-401, 402, 403, 428 and 433, R.S. 1931. The word "family" may include illegitimate children. 25 C.J. 668, 3 R.C.L. 742; Roberts v. Whaley (Mich.) 158 N.W. 209; Smith v. Canadian N.R. Co., 7 West Week. Rep. (Can.) 596; Insurance Co. v. Commission (Cal.) 202 P. 664; Moore Corp. v. Commission (Cal.) 196 P. 256; Rock Company v. Commission (Cal.) 182 P. 447; Utah Fuel Company v. Commission (Utah) 230 P. 681; Myers Company v. Noland (Ky.) 2 S.W.2d 387. It is contended that claimants were not the "dependent family" of the workman, because at the time of his death they lived in Italy. This contention is not sustained by the authorities. 25 C.J. 666; Sec. 124-106-7, R.S. 1931 as amended by Chapter 100, Laws Wyoming 1935; Western Supply Company v. Pillsbury (Cal.) 156 P. 491; Northwestern Iron Company v. Commission (Wis.) 142 N.W. 271; Zinc Company v. Commission (Colo.) 206 P. 158; Madera Company v. Industrial Accident Commission (Cal.) 208 P. 278; Miller v. Woodmen of the World (Wis.) 122 N.W. 1126; In re Derinza (Mass.) 118 N.E. 942, where the court held that the widow residing in Italy was entitled to compensation. In re Pagnoni (Mass.) 118 N.E. 948; In re McDonald (Mass.) 118 N.E. 949; In re Mooradjian (Mass.) 118 N.E. 951. The attorney general no longer represents the workman in the Supreme Court. Section 124-114, R.S. 1931.
There was also a brief filed with permission of court by Ray E. Lee, Attorney General; Thomas F. Shea, Deputy Attorney General; and William C. Snow, Assistant Attorney General, all of Cheyenne, on behalf of the State Treasurer.
We assume that if these claimants are to participate in a compensation award, it is by reason of that part of the Compensation Law, Session Laws of 1933, Chapter 129, Section 1, which reads: "In other cases questions of family dependency in whole or in part, shall be determined in accordance with the fact, as the case may be, at the time of the injury." In other words, the minor claimants in this case cannot participate in any award as "child or children," but only by reason of their being "family dependents." To adopt the definition of a family, advocated by the attorney for the claimants, is to a certain extent to let down the bars to the unconventional marriage. 19 R.C.L. Sec. 79; Schouler on Marriage, Vol. 1, Sec. 714. Illegitimate children are not favored in law and have only such rights as are expressly granted by statute. Idem Sec. 709. The conception of the word "family" in respect to illegitimate children is stated in our Law of Descent. Section 88-4005, R.S. The relation of the father is not recognized in the Descent Law unless and until the father shall have married the mother and shall have recognized the children as his own. There is never any doubt as to the identity of the mother. 7 Am. Jur. Sec. 4, p. 628. It is the policy of the law to discourage the unconventional marriage. The case of Moore Ship Building Corporation v. Industrial Accident Commission, 13 A.L.R. 676, 196 P. 257, contains in the main opinion, and in the dissenting opinion, an able presentation of the conflicting views as to the status of an illegitimate child. Under the evidence in the present case, it is not disputed that the claimants are illegitimates and that the father was never married to the mother. A dependent family means a family recognized in law. Staker v. Industrial Comm. (Ohio) 186 N.E. 616.
Joseph H. Galicich in reply to brief of State Treasurer.
The Workmen's Compensation Law is not an outgrowth of the action for death by wrongful act, but supersedes and abrogates the common law. Zancanelli v. Central Coal and Coke Company, 25 Wyo. 511, 71 C.J. 232, 527. Our Statute of Descent has no application here. LaChapelle v. Union Pacific Coal Company (Wyo.) 214 P. 587; McCormick v. Central Coal Coke Co. (Kans.) 232 P. 1071. The Attorney General's contention that it is the policy of the law to discourage the unconventional marriage and maintain the integrity of the family, intimating that penalizing claimants and denying compensation herein will help to accomplish this purpose, hardly needs reply. There is a wide divergence of opinion as to the efficacy of punishment as a deterrent in any case, and we cannot feel that this can be accomplished by taking away compensation from children who are entirely innocent of the evil attempted to be corrected. We are not seeking compensation for the alleged wife, but for the children who are recognized by the workman as his own. We believe that the Attorney General feels that the equities are in favor of the claimants, but he is afraid the case will establish a precedent, possibly enabling others less deserving to recover. The chief question in this case is the fact of "dependency" and each case should be decided upon its particular facts and merits.
This is an appeal by the employer from an order of award under the Workmen's Compensation Law. The workman, Constantino Dragoni, sometimes known as Charles Dragon, was accidently killed in October, 1935, while working in the employer's coal mine. The order of award is for the benefit of five claimants, who are non-resident, alien, illegitimate children under 18 years of age, surnamed Lopo. The workman was a native of Italy and married there in 1914. In 1918 he separated from his wife on discovering that she had been guilty of adultery while he was absent from home during the world war. There was no divorce, and could not have been under Italian law. From 1919 to 1923 the workman lived with Maria Lopo in his own house in Italy, and during that time there were born to Maria three children one of whom died shortly after birth. The workman came to this country in September, 1923. The children were left in Italy with their mother who gave birth to another child in April, 1924. The workman was in Italy from April to August, 1927 and again from April to September, 1932, and following each of these visits Maria gave birth to another child, one in December, 1927, the other in January, 1933. The workman recognized the children as his, and made regular and substantial remittances to the mother for the support of her and the children. The trial court found that the claimants are the children of the workman and Maria Lopo who were never married; that the children are non-resident aliens who were supported by the workman in his lifetime and were dependent members of the workman's family.
An amendment of article 10, section 4, of the state constitution authorized the enactment of a workmen's compensation law for payment of compensation to persons injured in extra-hazardous employment "or to the dependent families of such as die as the result of such injuries." The amendment contains no definition of the term "dependent families." The act of the legislature contains the following (Section 124-106-7, sub-sections (j) and (k), R.S. 1931, as amended by laws of 1935, ch. 100, sec. 2):
(j) "`Dependent families' as used in this chapter means such members of the workman's family as were wholly or in part actually dependent upon the workman for support at the time of the injury. No spouse shall be entitled to the benefits of this chapter nor shall such fact influence any awards made hereunder unless he or she shall have been married to the workman by a marriage duly solemnized by legal ceremony at the time of the injury;"
(k) "`Child or children' means the immediate offspring or legally adopted child or children of the injured workman, boys under eighteen (18) years of age and girls under eighteen (18) years of age (and over said age, if physically or mentally incapacitated from earning) and shall also include legitimate children of the injured workman born after his death or injury. In other cases, questions of family dependency in whole or in part shall be determined in accordance with the fact, as the case may be, at the time of the injury; the foregoing definition of `dependent families' shall not include any of the persons named, who are aliens residing beyond the jurisdiction of the United States of America, except a surviving widow or boys under eighteen (18) years of age or girls under eighteen (18) years of age, or parent or parents, and as to such non-resident aliens the rate of compensation shall not exceed thirty-three and one-third per cent. (33 1/3%) of the rates of compensation herein provided."
The first and controlling question is whether the claimants are "children" of the deceased workman within the meaning of the word as used in the law. It is not contended that the words "boys" and "girls" can be given a broader meaning than "children." The law originally (Laws 1915 ch. 124) spoke only of "children" under 16 years; later, separate mention was made of boys and girls because boys under 16 and girls under 18 were recognized as children, and this separate mention of them has continued though the distinction on account of age has been abandoned.
We cannot agree that the meaning of the word "children" in Sub-section (k), supra, is enlarged by the words "immediate offspring," that follow. The ordinary meaning of "offspring" is issue or lineal descendents of any degree. "Immediate offspring" has no broader meaning than "children." Adams v. Law, 17 How. 417, 421; Spencer v. Title Guarantee etc. Co., 222 Ala. 485, 132 So. 730. The words "immediate offspring" were not in the original act but came in by amendment in 1933. If these had been the only words added we should be inclined to hold that the only purpose was to make it clear that the word "children" did not include grandchildren, step-children or adopted children. The whole of the amendment of 1933 made the section say that "child or children" mean the immediate offspring or legally adopted child or children of the injured workman, the italicized words being added. We do not think the words "immediate offspring" in the amendment were intended to enlarge the meaning of the words "child or children." See Marshall v. Wabash R. Co., 120 Mo. 275, 279, 25 S.W. 179.
It is a rule of interpretation that words having a well-settled meaning in the jurisprudence of a country are to be understood in that sense when used in statutes unless a different meaning is unmistakably intended. Lewis' Sutherland, Stat. Cons. § 398. It is declared by statute that "technical words and phrases having a peculiar and appropriate meaning in law shall be understood according to their technical import." R.S. 1931, § 112-101. "The common law of England as modified by judicial decisions, so far as the same is of a general nature and not inapplicable . . . shall be the rule of decision in this state when not inconsistent with the laws thereof." § 26-101. Knowledge of the settled principles of statutory interpretation must be imputed to the legislature. Lewis' Sutherland, supra, § 499; Shellenberger v. Ransom, 41 Neb. 631, 649, 59 N.W. 935, 941. The cases, texts and law dictionaries are practically unanimous in declaring that prima facie the word "children" in a statute means legitimate children. The rule is applied even to private writings. It was in a will case (Wilkinson v. Adam, 1 Ves. Bea. 422, 462, 35 Eng. Rep. 179) that Lord Eldon used this emphatic language: "The rule cannot be stated too broadly that the description, `child, son issue,' every word of that species, must be taken prima facie to mean legitimate child, son or issue." The rule has been applied in cases under Lord Campbell's Act (9 10 Vict. c. 93), and like statutes enacted in this country. The English law was entitled "an act for compensating the families of persons killed by accident." Actions under it were for the benefit of the "wife, husband, parent and child" of the person whose death had been caused by the defendant, and the damages were intended as compensation for the "injury resulting from such death." See Coliseum Motor Co. v. Hester, 43 Wyo. 298, 309, 2 P.2d 105. It is held in England that the word "child" in the act means legitimate child. Langsdon v. ____________, 15 L.T. (O.S.) 521; Dickinson v. Northeastern Ry. Co., 2 Hurl. Colt. 735, 159 Rep. 304.
In this country under state wrongful death statutes similar to Lord Campbell's Act, the rule of the English cases has been followed, with a modification which apparently was first definitely announced in Marshall v. Wabash R. Co., 120 Mo. 275, 25 S.W. 179. A Missouri statute declared, as does our section 88-4005, that illegitimate children and their mother shall inherit from each other, and it was held that as this statute removed the principal common-law incapacity of an illegitimate child so far as he and his mother were concerned, the words parent and child in the wrongful death statute applied to a mother and her illegitimate child. Other decisions to the same effect are Goldmyer v. VanBibber, 130 Wn. 8, 225 P. 821, and cases cited. See Middleton v. Luckenbach, S.S. Co., 5 F. Supp. 238, and s.c. on appeal, 70 F.2d 326, under the Federal Death Act. It may be noted in this connection that it is held that the word "children" as a description of beneficiaries under the federal Employer's Liability Act, includes only those children who have the rights of legitimate children under the inheritance laws of the state where the act is being enforced. Hiser v. Davis, 234 N.Y. 300, 137 N.E. 596.
We turn to cases under the various state Workmen's Compensation Laws. They are in accord in holding that the word "children," as a description of beneficiaries, does not refer to or include the illegitimate children of a workman. Bell v. Terry Tench Co., 163 N.Y. Supp. 733, 177 App. Div. 123; Scott v. Independent Ice Co., 135 Md. 343, 109 A. 117; Murrill v. Industrial Com., 291 Ill. 334, 126 N.E. 189; Stoker v. Industrial Com., 127 Oh. St. 13, 186 N.E. 616. Perhaps, on authority of the noticed cases under wrongful death statutes, "children" may include those illegitimates whose right of inheritance is recognized in the laws of descent (see Marshall v. Industrial Com. 342 Ill. 400, 174 N.E. 534), but that question is not before us as the claimants are not of the classes of illegitimates whose right is so recognized. R.S. § 88-4005.
There are several cases, which we should not care to question, holding that illegitimate, dependent children who are members of the workman's family or household are entitled to benefits under those provisions of the law for compensation of "dependents" or "dependent families." Roberts v. Whaley, 192 Mich. 133, 158 N.W. 209, L.R.A. 1918A, 189; Scott's Case, 117 Me. 436, 104 A. 794; Piccinim v. Connecticut L. P. Co., 93 Conn. 423, 106 A. 330; Gritta's Case, 236 Mass. 204, 127 N.E. 889. These cases either do not question or expressly approve the general rule in regard to the statutory meaning of the word "children" (in Michigan "lineal descendants"), and simply hold that illegitimate children may in certain circumstances be dependents and members of a family, and receive compensation as such. See Bassier v. J. Connelly Const. Co., 227 Mich. 251, 255, 198 N.W. 989; Olson's Case, 247 Mass. 570, 142 N.E. 808.
Counsel for claimants, relying on the cases just referred to, contends that the claimants, though not children within the meaning of the act, are entitled to compensation as "members of the workman's family . . . wholly or in part actually dependent upon the workman for support at the time of the injury," the definition in section 124-106-7 (j), supra, of "dependent families." If it should be conceded that this definition includes dependents other than spouses, children and parents (the only ones for whom provision is made in the compensation schedule, § 124-120, amended Laws of 1935, ch. 100, sec. 5), it would not aid the present claimants, for they are non-resident aliens, and as to them there is a particular and more restricted definition. Sub-section (k), supra, declares that "the foregoing definition of `dependent families' shall not include any of the persons named, who are aliens residing beyond the jurisdiction of the United States of America, except a surviving widow or boys under eighteen years of age or girls under eighteen years of age, or parent or parents." So the present claimants are not "family dependents" unless they are "children."
We must hold that the words "children," "boys" and "girls" in the act mean "legitimate children." We do not fear that this will give the law a meaning not intended by the legislature. Our law bears evidence of having been drafted after study of similar acts previously adopted in other states and in England. In practically all of them there was some definition of the words "child or children." Often some classes of illegitimate children were expressly included. Our legislature did not see fit to do this. If they had, they probably would at least have limited the class (as in most other acts) to illegitimates who were acknowledged, recognized or legitimated before the injury.
The employer's abstract of the record fails in several respects to comply with our rule 37, 42 Wyo. 540. However, as the record is not large, the facts not in serious dispute, and the question of law in which the state, as custodian of the fund, is interested (see Marsh v. Aljoe, 41 Wyo. 220, 227, 284 P. 261), we have thought it proper not to dismiss the appeal, but to tax costs as though the order appealed from had been affirmed.
Reversed.
BLUME, Ch. J., and RINER, J., concur.