American Mut. c, Ins. Co. v. Hogan

Full title: AMERICAN MUTUAL LIABILITY INS. CO. et al. v. HOGAN et al

Court: Court of Appeals of Georgia

Date published: Apr 18, 1955

87 S.E.2d 661 (Ga. Ct. App. 1955)

87 S.E.2d 661

Opinion

35468.

DECIDED APRIL 18, 1955. REHEARING DENIED MAY 3, 1955.

Workmen's compensation. Before Judge Carpenter. Wilkinson Superior Court. October 2, 1954.

Marshall, Greene Neely, Burt DeRieux, for plaintiffs in error.

Joseph B. Duke, contra.

Under the Workmen's Compensation Act the phrase "posthumous children" includes posthumous acknowledged illegitimate children. The evidence authorized the finding that the deceased employee had acknowledged the minor claimant, who was a posthumous illegitimate child; therefore the court did not err in affirming the single director's award of compensation.

DECIDED APRIL 18, 1955 — REHEARING DENIED MAY 3, 1955.

Carrine May Hogan and Roy Lee Hogan, by his next friend, Carrine May Hogan, filed a claim against Southern Clays, Inc., and its carrier, American Mutual Liability Insurance Company, for compensation. Carrine May Hogan filed her claim as widow of Clifford Lee Hogan, the employee, by virtue of being his common-law wife at the time of his injury and death. The claim of the minor child is based on his being the acknowledged illegitimate child of the deceased. The single director found against the claimant, Carrine May Hogan, on the ground that a valid common-law marriage never existed between her and the deceased, but found in favor of the minor claimant. The employer and carrier appealed the award in favor of the minor claimant to Wilkinson Superior Court. The superior court affirmed the award, and the employer and carrier except.

Carrine May Hogan testified substantially: that she lived in the house with her mother and father and had lived with them all her life; she had two children, Roy Lee Hogan and Willie May May; Willie May was a year and nine months old; Roy Lee was seven months old; Clifford Hogan was not the father of Willie May; she started going with Clifford Hogan about six months before Willie May was born; she went with him from then until his death; after she started going with Clifford Hogan she did not date or go with any other men; Clifford Hogan paid the midwife who attended her with the birth of Willie May; Willie James is the father of Willie May; from a time several months prior to the birth of Willie May until the time of Clifford Hogan's death she did not go with or have relationships with any other man; prior to the time she started going with Clifford Hogan; she had never lived with another man and held herself out to be his wife; she had never entered into a ceremonial marriage with anyone prior to the time she went with Clifford Hogan; she started living with Clifford Hogan on November 24, 1952; from that time on she and Clifford lived with her parents in her parents' home; she lived with him as his wife from November 24, 1952, until the time he was injured on December 16, 1952; she introduced Clifford as her husband to her friends and to people in the community, and he introduced her as his wife; she and Clifford made an arrangement between themselves that they would live together as man and wife; they were to stay together until death; she and Clifford started going together about six months prior to June 10, 1952, and went together for a year and a half before they started to get married; they went to get married the latter part of November, 1952; she and Clifford went to talk with the county ordinary about getting married; the ordinary told them they would have to have a blood test before she could issue them a license; after the blood test she was told that she would have to have some medical treatment before they could be married; on the date she found out that she had "bad blood," she and Clifford went back to her parents' house and stated that they had been married and started living together; the only reason she told her parents or anyone else that they were married was so her parents would not "throw" them out of the house and so they could live together; Clifford died on December 26, 1952; she finished her treatment for her "bad blood" the week Clifford was injured; young Dr. Boddie was treating her for the disease; being married meant that Clifford would take care of her until death; she knew that they could not get a marriage license until her blood was cleared up; she and Clifford intended to go through a ceremonial marriage when she was cured of her disease; she and Clifford intended to be husband and wife when they started living together; she made the arrangements for Clifford's burial; the insurance company had paid what funeral expense had been paid.

Elinor May testified in substance as follows: that she was the mother of Carrine May Hogan; that Carrine had lived with her and her husband all her life; that Carrine and Clifford Hogan started living together in the witness's home in November of 1952; that when they first started living there, they told her and her husband that they were married; that Carrine, Clifford, and Carrine's child, Willie May, lived in one room of the house; that all three slept in the same bed; that the three used the mother's kitchen but cooked and ate separately from the mother and father; that Clifford paid for the use of the room.

Emma May Cody testified that she was the half-sister of Clifford Hogan; that during November of 1952, she had occasion to visit the home of Elinor and Jesse May; that Carrine and Clifford were living there; that Clifford introduced Carrine as his wife; that she remembered Clifford's and Carrine's going to Milledgeville to get married; that she saw them a few days later and asked if they had gotten married and they replied that they had.

Miss Bertie B. Stembredge testified that she was the Ordinary of Baldwin County, Georgia; that the law of Georgia requires a blood test of the applicants before she can issue them a marriage license; that if a blood test reads positive, she cannot issue a marriage license; that she could not recall whether Carrine and Clifford ever applied for a marriage license and were refused one because Carrine was suffering from a disease; that a search of her records did not disclose a recorded marriage between Carrine and Clifford Hogan.

Elinor May, on recall to the stand, testified that Carrine was pregnant at the time of Clifford's death; that Clifford had taken Carrine to the doctor on the Sunday before the Tuesday on which he was injured, and Carrine told her that she was pregnant; that Carrine and Clifford were living together at her home at the time.

On recall, Carrine May Hogan testified that, on the Sunday before the Tuesday on which Clifford was fatally injured, Clifford took her to the doctor; that the doctor told her she was pregnant; that the doctor did not tell her so in Clifford's presence, but that she told Clifford herself; that the doctor prescribed medicine which required crushed ice; and that Clifford bought the medicine and ice for her.

FELTON, C. J.

The defendant in error contends that the minor claimant was entitled to compensation by virtue of Code § 114-414, which provides: "The following persons shall be conclusively presumed to be the next of kin wholly dependent for support upon the deceased employee: . . . (c) A boy under the age of 18, or a girl under the age of 18, upon a parent. . . As used in this section, the terms `boy,' `girl,' or `child' shall include step-children, legally adopted children, posthumous children, and acknowledged illegitimate children." It is contended that the minor claimant is a posthumous acknowledged illegitimate child, and that therefore she falls within the category.

In C. F. Wheeler Co. v. Pullins, 152 Fla. 96 ( 11 So.2d 303, 304) the Supreme Court of Florida held: "Parenthetically, it is our view that the acts of the deceased workman immediately prior to the accident may be construed as an acknowledgment 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."

Admittedly, the question presented in this case is a close one; however, what constitutes acknowledgment on the part of the putative father under our statute necessarily depends on the circumstances of each case. See L.R.A. 1916E, page 663. Under the circumstances of this case and the law announced in the Pullins case, the question of acknowledgment was one to be resolved by the trior of facts, and the evidence authorized the finding that the putative father had acknowledged the child so as to bring the child within the meaning of the terms "boy, girl, or child" as defined by the act.

It is contended that, while Clifford Hogan may have known that Carrine was pregnant, there was no evidence showing that he thought it was his child. It is further contended: that, because Carrine had mothered one illegitimate child by Clifford's nephew, Clifford could have entertained doubt about the paternity of the minor claimant. Carrine was pregnant at the time she and Clifford started "going together" and Clifford knew of this. This was before Carrine and Clifford attempted to be ceremonially married and before they began living together and holding themselves out as husband and wife. When Carrine became pregnant with her first child, she was unmarried and was not living with another as his wife. She was unfaithful to no one but herself. This was before Clifford had any rights or demands, fanciful or otherwise, on her faithfulness. He took her as he found her and apparently was satisfied with the situation. However, the conception of the minor claimant occurred after earnest efforts and desires on their part to become man and wife, and their relationship and conduct thereafter along with the other evidence authorized the trior of facts to find that Clifford believed that the child Carrine was carrying was begotten of him.

The plaintiffs in error contend that "posthumous children" as used by the act does not include posthumous acknowledged illegitimate children. The contention is without merit. An acknowledgment of an illegitimate child by its putative father serves to establish the relationship between the father and the child, and once an illegitimate child is acknowledged by its putative father, for the purposes of the Workmen's Compensation Act it stands on the same footing as a legitimate child. This exact question was before the Supreme Court of North Carolina in the case of Lippard v. Southeastern Express Co., 207 N.C. 507 ( 177 S.E. 801). The North Carolina statute provided: "The term `child' shall include a posthumous child, a child legally adopted prior to the injury of the employee, and a stepchild or acknowledged illegitimate child dependent upon the deceased, but does not include married children unless wholly dependent upon him." That court said: "The fact that the illegitimate child, whose paternity was acknowledged by the deceased employee prior to his death, was born after his death does not affect the relationship between the child and its father. The dependency which the statute recognizes as the basis of the right of the child to compensation grows out of the relationship, which in itself imposes upon the father the duty to support the child, and confers upon the child the right to support by its father. The status of the child, social or legal, is immaterial. The philosophy of the common law which denied an illegitimate child any rights, legal or social, as against its father, and imposed no duty upon the father with respect to the child, is discarded by the statute. The child is no less the child of its father because it was born after his death." See also C. F. Wheeler Co. v. Pullins, supra, and Kluss v. Levene's Son, Inc., 55 N. Y. So.2d 108; s.c., 57 N. Y. So.2d 655.

Under the Georgia Workmen's Compensation Law, posthumous children include posthumous acknowledged illegitimate children.

The court did not err in affirming the award of compensation by the single director.

Judgment affirmed. Quillian and Nichols, JJ., concur.