Redfern v. Holtite Manufacturing Co.

Henderson, J., delivered the opinion of the Court. Wilson Redfern sustained an injury, arising out of and in the course of his employment, and died immediately thereafter on January 24, 1951. He left surviving him a mother, a wife and a woman with whom he had been living illicitly. All three filed claims for' compensation under the Workmen’s Compensation Act.

Awards were made to each of them, and each appealed to the Court of Common Pleas. On August 5, 1951, Celestine Slight, the woman with whom the decedent had been living illicitly, gave birth to a child, Dorean Wilson Redfern, who was the illegitimate and posthumous son of the decedent. A claim was filed on his behalf on July 16, 1952, more than a year after the death of the decedent, but within a year from the date of his birth. The employer raised the issue of limitations and the State Industrial Accident Commission denied the claim on this ground.

On appeal to the Court of Common Pleas the decision was affirmed. From that affirmance the appeal comes here. Code (1951), Art. 101, sec. 35, provides that each employee, or “in case of death his family or dependents”, entitled to receive compensation under the Article, shall receive the same according to a schedule there set up. Sub-section (8) (d) of this section provides that in all cases, “questions of dependency, in whole, or in part, ¹⁰⁹ shall be determined by the Commission in accordance with the facts in each particular case existent at the time of the injury resulting in death of such employee.” In Scott v. Independent Ice Co., 135 Md. 343 (1919), it was held that a “common law” wife was not a “wife” within the meaning of the statute, and was not entitled to compensation.

The statute at that time provided that there was a presumption of total dependency in the casé of a wife, invalid husband, or child or children under the age of sixteen years, but that in all other cases questions of dependency should be determined in accordance with the facts in each particular case existing at the time of the injury resulting in death, but “no person shall be considered as dependent unless such person be a father, mother, grandfather, grandmother, stepchild, or grandchild, or brother or sister of the deceased employee, including those otherwise specified in this section.” Code (1914 supp.), Art. 101, sec. 36. The persons otherwise specified were, of course, a wife, invalid husband or child under sixteen. It was also held in the Scott case that an illegitimate child could not recover, because not included in the word “child”, defined, in what was then sec. 63, to include “a posthumous child and' a child legally adopted”. By Ch. 456, Acts of 1920, this definition was enlarged to read: “The term ‘child’ and ‘children’ shall include posthumous children and adopted children, whether members of the deceased employee’s household at the time of his accident or death or not, and shall also include stepchildren, illegitimate children and other children, if such stepchildren, illegitimate children and other children were members of the household of the decedent at the time of the accident or death and had received contributions toward their support from such deceased employee during any part of the six months immediately preceding the accident or death.” This definition section appears in the present statute as Code (1951), Art. 101, sec. 68(10).

By Ch. 895, Acts of 1947, the language referring to relationship by blood or marriage was eliminated, and ¹¹⁰ the present provision was adopted that in all cases questions -of dependency should be determined as questions of fact, without the benefit of any presumption. In Kendall v. Housing Authority, 196 Md. 370, 374 , we stated that- the effect of the amendment was to leave as the only requirement a finding of fact that the claimant was subsisting upon the earnings of the workman, without regard to relationship; and held that a woman living in an illicit relationship could recover. Another effect of the amendment was to leave the section defining “child” and “children” without specific application, because all references to “child” and “children” in sec. 35 were eliminated. This amendment was not applicable in the case of Dukes v. Eastern Tar Prod.

Corp., 197 Md. 564, 569 , for the death in that case occurred in 1945, and we affirmed a finding that the illegitimate children were not members of the decedent’s household. . The amendment of 1947 leaves the existing statute in a curious state. It might well be contended that the definition of words eliminated from the statute can no longer be considered, and was repealed by necessary implication. If the only requirement is now proof of dependency in fact at the time of the injury resulting in death, it might be contended that a posthumous child could, not qualify.

In Ide v. Scott Drilling, 67 N. W. 2d 133 (Mich.), the