McKay v. Dept. of Labor and Industries , 180 Wash. 191 ( 1934 )

In the case of Foster v. Department of Labor and Industries,161 Wn. 54, 296 P. 148, 73 A.L.R. 1012, this court held that an injured workman who married after suffering an injury for which he was receiving compensation under the act was not entitled to increased compensation either on account of a minor child of his wife's or a child subsequently born to himself.

The sections of the statute applicable are referred to in the opinion, as are also authorities which are in point upon the question then under discussion. In the case cited, the court held that the marital status of the workman at the time of the injury was controlling. In this case, the majority distinguishes theFoster case because "in that case there was no widow involved." While there was no widow, there was a wife; also a step-child and a natural child, and it seems to me that, under the statute, the widow of a workman when the marriage occurred after the injury has no greater rights than a natural child of the workman born of a marriage which took place after the injury.

By Rem. Rev. Stat., § 7679 [P.C. § 3472], paragraph (i), it is provided that the wife of an injured workman living in a state of abandonment for more than one year at the time of the injury or subsequently shall not be a beneficiary under the act. It is difficult for me to understand why a woman who marries a man subsequent to his injury may acquire greater rights than could a wife who returned to her husband after the injury and resumed marital relations with him.

The supreme judicial court of Massachusetts, in Gleason's case, 269 Mass. 583, 169 N.E. 409, held that, under the law of that state, the widow of an injured workman who married him subsequent to his injury was not entitled to the benefits of the act. The law of Massachusetts defined "dependents" as

"`members of the employee's family or next of kin who were wholly or partly dependent upon the earnings of the employee for support at the time of the injury.'"

While no such definition is found in our statute, it seems to me that, construing our act as a whole and considering the different definitions therein contained, the two laws mean the same thing, and in such a case as this should be construed alike.

Rem. Rev. Stat., § 7679 [P.C. § 3472], (b), subd. (1), referring to payments to be made for permanent total disability, reads, "If unmarried at the time of the injury, the sum of thirty-five dollars ($35.00)." It seems to me clear that this and subsequent sections all refer to the status of the workman and his family at the time of the injury, and that no exception should be made save as to children subsequently born of a marriage consummated prior to the injury.

By Rem. Rev. Stat., § 7675 [P.C. § 3470], the word "child" as used in the act is defined as including "a posthumous child, a step-child, a child legally adopted prior to the injury and an illegitimate child legitimated prior to the injury."

Certainly, if a father can not bring his illegitimate child within the provisions of the act by taking steps subsequent to his injury which make the child legitimate under the law, the benefits of the act should not be extended to benefit a woman who deliberately marries a man after he has been classified as injured under the statute.

The supreme court of Utah, in the case of Sarich v.Industrial Commission, 64 Utah 17, 227 P. 1039, 35 A.L.R. 1062, held that a woman marrying a workman who had suffered a mortal injury was not entitled to compensation, as by his death she was deprived of no tangible support. That was, of course, an extreme case, but it seems to me that, as in the case at bar respondent married the injured workman after he had suffered disability, under the act she can not now claim the benefits of the statute.

This court has repeatedly held that the law in effect at the time of the injury controls the rights of the parties. Thorpe v.Department of Labor and Industries, 145 Wn. 498, 261 P. 85;Sheldon v. Department of Labor and Industries, 168 Wn. 571,12 P.2d 751.

It seems to me that an important question of public policy is involved in this case, and that respondent is not entitled to recover. I accordingly dissent from the conclusion reached by the majority.