
    Staker, Gdn., v. Industrial Commission of Ohio.
    (Decided October 11, 1932.)
    
      
      Messrs. Cowan, Adams & Adams, for plaintiff in error.
    
      Mr. Gilbert Bettmam, attorney general, Mr. R. B. Zurmehly, and Mr. N. L. McLean, for defendant in error.
   Kunkle, J.

Plaintiff in error filed an application with the Industrial Commission of Ohio for compensation on account of the death of Onda Porter. The Industrial Commission denied this claim on the ground that Onda Cartee was not a dependent of Onda Porter. An appeal from such decision of the Industrial Commission was taken to the court of common pleas of Fayette county.

An amended petition was filed in said court by plaintiff in error, to which the defendant in error demurred, upon the ground that the amended petition did not state facts sufficient to constitute a cause of action.

The demurrer of defendant in error to such amended petition was sustained, and judgment entered in favor of defendant in error.

From such judgment error is prosecuted to this court.

The matters presented by this proceeding present a new and interesting question which we have examined with care.

The fourth paragraph of the amended petition contains the following averment: “That Onda Cartee is the illegitimate minor son of Onda Porter, deceased; that said son was conceived on or about November 6th or 10th, 1929, by intercourse between Onda Porter, deceased, and Opal Cartee, the mother, who were engaged to be married and had planned to be married on the following Christmas; that said child was born on August 5th, 1930, and after the death of Onda Porter, its father; that under the provisions of the Workmen’s Compensation Law of Ohio, said child is a dependent of said Onda Porter, deceased.”

There is no dispute as to Onda Porter having been an employee of the Reinhart Transfer Company and of his injury and death at the time stated, and of the fact that his employer was a subscriber to the state insurance fund and had complied with the Workmen’s Compensation Law of Ohio.

The only question presented for consideration is: Can a posthumous illegitimate child be termed a dependent child under the provisions of the statutes governing workmen’s compensation? The demurrer admits the truth of the facts above quoted in the amended petition.

Counsel have favored the court with helpful briefs in which the pertinent sections of the code of Ohio, and various decisions of this and sister states, are cited and discussed.

There has also been filed with us the written opinion of Judge- Rankin of the lower court, in which many of the authorities so cited are discussed and the pertinent facts stated. In view of the exhaustive opinion filed by the lower court, we do not deem it necessary to discuss this case at the length that we otherwise might.

Section 1465-68, General Code, provides in detail who is entitled to participate under the Workmen’s Compensation Law of Ohio.

In brief, this section provides that, not only the injured employee may receive compensation, but that the dependents of an employee who is killed shall receive compensation for the loss so sustained.

In addition to the employee receiving compensation, in case of injury, the liability to pay compensation in the event of the employee’s death is limited to those who are dependent upon such employee.

Section 1465-82, General Code, defines dependents, ■within the meaning of the Workmen’s Compensation Law, as follows:

“5. The following persons shall be presumed to be wholly dependent for the support upon a deceased employee :

“ (A) A wife upon a husband with whom she lives at the time of his death.

“ (B,) A child or children under the age of sixteen years (or over said age if physically or mentally incapacitated from earning) upon the parent with whom he is living at the time of the death of such parent, or for whose maintenance such parent was legally liable at the time of his death.

“In all other eases, the question of dependency, in whole or in part, shall be determined in accordance with the facts in each particular case existing at the time of the injury resulting in the death of such employee, but no person shall be considered as dependent unless a member of the family of the deceased employee, or bears to him the relation of husband, or widow, lineal descendent, ancestor or brother or sister. The w;ord ‘child’ as used in this act shall include a posthumous child, and a child legally adopted prior to the injury.”

This section defines who may be a dependent.

Does the term “child,” as used in the statute, include an illegitimate child?

We cannot escape the conclusion after an examination of the authorities that the word “child,” as used in this and similar sections of our Code, relates to a legitimate child, and does not include an illegitimate child.

In addition the child must be a dependent upon the parent at the time of the death of such parent. For the purposes of this case, Onda Porter was the father of Onda Cartee, and such child was born some nine months after the death of Onda Porter. These statements are admitted by the demurrer.

An examination of the various sections of our Code, many of which are referred to in the briefs, reveals that where the word “child” is used it has been held to apply solely to a legitimate child, unless the contrary clearly appears.

It is also apparent that, in order to protect a legitimate posthumous child and permit such child to participate in the workmen’s compensation fund, an amendment to the original statute was enacted, and such posthumous child was specifically included within those who might share in the fund.

In the absence of a statute specifically including illegitimate children, it has been held by our Supreme Court that the father of an illegitimate child could not be prosecuted criminally for failure to provide. This has beén corrected by later legislation.

A careful consideration of the reasoning found in the decision of our Supreme Court in the case of Creisar v. State, 97 Ohio St., 16, 119 N. E., 128, compels the conclusion that, in the absence of some express or clearly implied provision in the statute to the contrary, the term “child,” as used in the Workmen’s Compensation Statutes, should be taken in its ordinary and popular sense, and by so confining the same it would include only legitimate children.

The reasoning of the decision of the Court of Appeals of the Fifth Appellate District, as found in the case of Owens v. Humbert, Exrx., 5 Ohio App., 312, 25 C. C. (N. S.), 522, 27 C. D., 307, also permits of no other construction.

In consideration of the above, together with other authorities cited in the brief, we cannot escape the conclusion that the Legislature intended in the above enactments, by the use of the term “dependent child,” to include only legitimate children.

We have also made some independent examination of this question. Among the authorities so examined we find the following definition of the word “child,” as given by Bouvier: “It is a rule of decision in England that the word ‘children’ means legitimate children * * * and such is the general rule- in this country * * * although illegitimate children may be considered as included by express designation or necessary implication.”

In the case of State, ex rel. Canfield, v. Porterfield, Judge, 222 Mo. App., 553, 292 S. W., 85, the third paragraph of the syllabus reads: “Statute referring to ‘child’ or ‘children’ or ‘parent’ or ‘parents’ held construed as referring to legitimate children and not to illegitimate children or bastards.”

In the case of Hiser, Admx., v. Davis, Dir. Genl. of Rds., 234 N. Y., 300, 137 N. E., 596, it was held that, under the Decedent Estate Law, Section 89, and Section 98, subdivision 15, which governs the construction of the Federal Employers’ Liability Act within the state, as to children of a deceased employee entitled to benefits under the act, the word “child,” without any other description, does not include an illegitimate child.

From a consideration of the authorities we cannot escape the conclusion that the demurrer to the amended petition was properly sustained. The judgment of the lower court will therefore be affirmed.

Judgment affirmed.

Allread, P. J., and Hornbeck, J., concur.  