Westfall v. J. P. Burroughs Son , 280 Mich. 638 ( 1937 )

There being no ceremonial or common-law marriage, the posthumous child was not legitimate. She should not be put to the expense of attempting to prove her claim when none exists under the compensation act.

In Schofield v. Orrell Colliery Co., Ltd., (1909) 1 K. B. 178, an award to a posthumous illegitimate child was upheld because of an express statutory provision for illegitimates under the English workmen's compensation act which the court construed as making a posthumous illegitimate child a member of the family to the same extent as a legitimate child actually born at the time of death. In Klimchak v. Ingersoll Rand Co., 39 N.J.L. J. 275 (a decision by the New Jersey Common Pleas Court) referred to inKing v. Peninsular Portland Cement Co., 216 Mich. 335, quoted in Mr. Justice BUSHNELL's opinion, the court relied upon the New Jersey act which provided:

"Illegitimate children shall be presumed to be dependent when they were part of the decedent's household at the time of his death."

In construing this provision, the court said:

"The child, William Klimchak, although en ventre sa mere, whether considered as born at the time of his father's death, or dependent upon the earnings of the father, although indirectly through its mother being a part of decedent's household, falls within the definition of an illegitimate child."

We find that in a few other States where awards to illegitimate posthumous children were sustained, it was because of the peculiar wording of the compensation acts in those States making provision for illegitimate children. The Michigan act, however, contains no such provision.

It is true that when illegitimate children are accepted as members of the family and actually supported by the putative father, they are considered dependents and entitled to compensation. Roberts v. Whaley, 192 Mich. 133 (L.R.A. 1918A, 189). It is also true that posthumous legitimate children are considered the same as children born prior to the death of the parent. King v. Peninsular Portland Cement Co., supra. It does not follow, however, that illegitimate children born after the death of the putative father are dependents under the compensation act.

In Bassier v. J. Connelly Construction Co., 227 Mich. 251, a compensation case, Mr. Justice FELLOWS, speaking for the court, said:

"At common law an illegitimate child was considerednullius filius, the son of no one. This State, in common with most of the States of the Union, has modified in several regards the rigor of the common-law rule. Provisions are made for the compulsory maintenance of illegitimate children by the putative fathers (2 Comp. Laws 1915, § 7753^* et seq.); the illegitimate child may inherit from its mother but not from her ancestors (3 Comp. Laws 1915, § 11796 [3 Comp. Laws 1929, § 13441]); she may inherit from him (3 Comp. Laws 1915, § 11797 [3 Comp. Laws 1929, § 13442]); the illegitimate child may be legitimated by the subsequent marriage of the parents or by an acknowledgment in writing by the father (3 Comp. Laws 1915, § 11798 [3 Comp. Laws 1929, § 13443]). Other provisions not necessary to relate have been enacted but the legislature has not seen fit to give them in all regards the status of legitimate children. The common law obtains in this State except as modified by statute. Until modified by statute the courts must administer it. Unless by judicial legislation we write into the workmen's compensation act a provision not there inserted by the legislature, this plaintiff cannot prevail. It is urged that the sins of the parents should not be visited upon this child; all true, but in the absence of statute justifying it their sins should not be visited upon this employer of labor."

The correct rule is set forth in Sanders v. Fork Ridge Coal Coke Co., 156 Tenn. 145 (299 S.W. 795), where a question almost identical with that in the instant case arose, and the court said:

"Our statute contains no such provision as the English statute. For an illegitimate child to enjoy the benefits of our compensation act he must have come into being and have been actually supported by his father, the deceased employee (citingPortin v. Portin, 149 Tenn. 530 [261 S.W. 362]). In this way only, could such a child be treated as a dependent under our statutes. A posthumous illegitimate child, therefore, is necessarily without the act."

To the same effect, see Gierak v. Lehigh WilkesBarre CoalCo., 101 Pa. Sup. 397.

The entire award should be affirmed.

NORTH, and WIEST, JJ., concurred with BUTZEL, J.

^* See 3 Comp. Laws, 1929, § 12910, as amended by Act No. 8, Pub. Acts 1931. — REPORTER.