Thomas v. Central Engineering Const. Co. , 116 Ind. App. 385 ( 1945 )

DISSENTING OPINION We concur in the majority opinion insofar as it reverses the award of the Industrial Board denying compensation to the minor child, Paul Nathaniel Williams, but we cannot agree with the majority opinion in its decision in favor of appellant Ida Williams (Thomas), and we wish to dissent in part. We recognize that their opinion and decision in favor of appellant Ida Williams (Thomas) is based on a ruling precedent of the Supreme Court. We are of the opinion that the case of Russell et al. v.Johnson et al. (1943), 220 Ind. 649, 46 N.E.2d 219, relied on in the majority opinion, is erroneous. Feeling as we do, we regard it our duty under subdivision 1, § 4-215, Burns' 1933 to ask that this case be transferred to the Supreme Court.

The Russell et al. v. Johnson case, et al. supra, squarely holds that a woman who lives in adultery and is dependent on her paramour for support is not barred by the public policy of the State from the benefits of the Indiana Workmen's Compensation Act. We regard the reasoning of this case as pernicious. It seems significant that the Supreme Court in its opinion did not cite an authority from any jurisdiction to sustain its conclusion based upon the above circumstances.

It is well established that the public policy of this State is to be determined from a consideration of the Constitution, the statutes, the practice of officers in the course of administration, and the decisions of the courts of last resort. Hogston v. Bell (1916), 185 Ind. 536, 112 N.E. 883.

Adultery has been defined as "sexual unfaithfulness of a married person." Webster's International Dictionary. Under our statutes adultery is a misdemeanor. § 10-4207, Burns' 1942 Replacement. A spouse who has left his or her mate and is living in adultery at the time of the innocent mate's death is barred from inheriting the latter's estate. §§ 6-2329, 6-2330, Burns' 1933. A husband is not criminally liable for deserting his wife when her adultery was the cause of the separation. § 10-1401, Burns' 1942 Replacement. Adultery is a ground for divorce. § 3-1201, Burns' 1933.

By these enactments the Legislature has attempted to protect and preserve the institution of the family from the effect of adultery. It seems to us this is a most important matter of public policy. It is to be noted that on the matter of inheritance between husband and wife the Legislature has placed the spouse who is guilty of adultery in the same class with the spouse who murders his or her mate. Yet, if the case of Russellet al. v. Johnson et al., supra, is followed, a woman who abandons her home and family to live in adultery in consideration of her paramour's support is entitled to the benefits of the Indiana Workmen's Compensation Act if he is killed in an accident arising out of and in the course of his employment. This appears to us to be a perversion of the manifest intent of the Workmen's Compensation Act — the protection of the family of the workman. Its effect is to put a premium on licentiousness. We feel that the decision in Russell et al. v. Johnson et al., supra, would place an adulteress in a more advantageous and favorable position under the law than the natural widow and child of a deceased, and that absurd and unjust consequences would flow from an approval of the rule announced in the foregoing case.

In the Russell et al. v. Johnson et al. case, supra, the Supreme Court held the last paragraph of subdivision (e), § 40-1403, Burns' 1940 Replacement brought the adulteress within the provisions of the Workmen's Compensation Act. This provision is as follows:

"In all other cases, questions of total dependency shall be determined in accordance with the fact, as the fact may be at the time of the death, and (the) question of partial dependency shall be determined in like manner as of date of the injury. . . ."

For the reasons hereinbefore set out we feel the only logical legal conclusion and interpretation of the legislative intention in such provision is that it was intended to provide for cases where there was actual dependency, in fact, under conditions which were not inimical to the public welfare. As an example, we are of the opinion in the instant case that the child, Paul Nathaniel Williams, was in fact dependent on the deceased and entitled to the benefit of the Act, and that the decision of the Industrial Board should be reversed as to such child.

We do not desire to be understood as limiting the broad application of the above quoted provision of the statute to persons wholly unrelated who may be actually dependent on the deceased in any given case, but we cannot approve a rule that creates a dependency relationship which is brought about by doing violence to the public policy of the State.

We feel this case should be transferred to the Supreme Court in order that that court might reconsider the case of Russell etal. v. Johnson et al., supra.

NOTE. — Reported in 63 N.E.2d 295.