Summary
In Patterson v. Liberty Mutual Ins. Co., 110 Ga. App. 23, 137 S.E.2d 549 (1964), the evidence authorized finding that the decedent and child's mother had lived together continuously from May 1960 until the employee's death on August 30, 1960.
Summary of this case from Ezell-Titterton, Inc. v. A.K.FOpinion
40757.
DECIDED JUNE 29, 1964.
Workmen's compensation. Fulton Superior Court. Before Judge Shaw.
Robert Carpenter, A. Tate Conyers, for plaintiff in error.
Greene, Neely, Buckley DeRieux, Burt DeRieux, James A. Eichelberger, contra.
The record in this workmen's compensation case contained evidence which would have authorized the finding that the deceased employee had acknowledged his parentage of the posthumous illegitimate child so as to qualify it as a dependent entitled to compensation; and since it affirmatively appears from the award denying compensation that the same was predicated upon an erroneous legal theory which precluded the consideration of this evidence which would have authorized a contrary result, the judgment of affirmance by the superior court must be reversed and the case remanded to the board for further consideration.
DECIDED JUNE 29, 1964.
The plaintiff requested a hearing before the State Board of Workmen's Compensation on October 6, 1960, on the grounds that she was entitled to compensation as the common law widow of the deceased employee and that her then unborn child was the child of the deceased employee who had acknowledged it so as to qualify it as a dependent entitled to compensation. A hearing to determine compensation, funeral expenses and dependency was conducted on February 6, 1961, and the record was kept open to await the birth of the child, which occurred on April 5, 1961. On June 21, 1961, the hearing director entered an award denying the claim of the alleged widow and the posthumous child. This award was affirmed by the Superior Court of Fulton County and the exception is to that judgment.
It is conceded by plaintiff's counsel that under the application of the "any evidence" rule the award denying compensation to the mother as the alleged common law widow of the deceased employee was authorized. Vigorous objection is made to the award as to the posthumous child, however, on the grounds that this award was predicated upon an erroneous legal theory which precluded the hearing director from considering evidence which would have authorized a finding that the child was a dependent of the deceased employee and entitled to compensation.
This court in American Mut. c. Ins. Co. v. Hogan, 91 Ga. App. 891 ( 87 S.E.2d 661), held that under the Georgia Workmen's Compensation Law, Code § 114-414, posthumous children include posthumous acknowledged illegitimate children and that what constitutes acknowledgement on the part of the putative father necessarily depends on the circumstances of each case as there is no definitive rule to be applied. The court quoted with approval from C. F. Wheeler Co. v. Pullins, 152 Fla. 96 ( 11 So.2d 303) as follows: "Parenthetically, it is our view that the acts of the deceased workman immediately prior to the accident may be construed as an acknowledgement of his parentage of the child for, it will be recalled, he lived with the mother continuously for many months and doubtless he knew that she was enceinte. It is contrary to human experience for a man to continue his cohabitation with a woman as her husband if he entertains doubt that he is the father of the child she is bearing."
The court ruled in the Hogan case that under the facts and circumstances present when considered in the light of the law announced in the Pullins case, the question of acknowledgement was one to be resolved by the trior of fact; and that the evidence authorized the finding that the deceased employee had acknowledged the child so as to bring the child within the coverage of the Act.
It is our opinion that in this case the issue of acknowledgment was likewise one to be resolved by the trior of fact; and that under the facts and circumstances here, a finding was authorized, though not demanded, that the posthumous illegitimate child had been acknowledged by the deceased employee. The evidence authorized the finding that the decedent and the mother of the child had lived together continuously from May 1960, until the employee's death on August 30, 1960; that the mother was approximately two months pregnant at the time of the employee's death; that the mother prior to the employee's death "knew in her own mind" that she was pregnant and had so informed the decedent who was "hopeful" that she was, and who had informed the maternal grandmother of the probable pregnancy.
The award of the hearing director affirmatively discloses, however, that this evidence was not considered in resolving the issue of acknowledgement; but rather, that the hearing director concluded as a matter of law that the deceased employee could not have acknowledged the posthumous child since he did not know as a positive fact that the mother was pregnant at the time of his death on August 30, 1960; such finding being based upon the fact that the mother's pregnancy was not medically confirmed until tests were made on September 8, 1960, several days after the employee's death.
It is contended by plaintiff's counsel that the finding of the hearing director with respect to the claim of the posthumous child was predicated upon an erroneous theory of law for the reason that it is immaterial whether or not the putative father knew as a matter of positive fact that the mother was pregnant, it being sufficient that the putative father believed such to be the case when in fact it was; and that, acting on such belief, he acknowledged his parentage of the child. With this contention we agree. The controlling factor is the actual fact of pregnancy and the putative father's intent with respect to the unborn child; and this being true, an acknowledgment of parentage may be made by one who is acting in the belief that the mother is pregnant with his child irrespective of the fact that her pregnancy has not been medically or otherwise determined as a positive fact.
The record in this case contained evidence which would have authorized a finding that the deceased employee believed that the woman with whom he had been living for several months was pregnant and that the decedent by his conduct acknowledged his parentage of the child. An award in favor of the posthumous child was thus authorized; and since it affirmatively appears from the award of the hearing director that the same was based upon an erroneous legal theory which precluded the consideration of evidence which, if the same had been considered, would have authorized a contrary result, the judgment of the superior court which affirmed the award must be reversed with direction that the case be remanded to the Board of Workmen's Compensation for further consideration and findings. Fidelity Cas. Co. v. Hodges, 108 Ga. App. 474 (1) ( 133 S.E.2d 406).
Judgment reversed with direction. Bell, P. J., and Eberhardt, J., concur.